Terminating a Residential Tenancy - Re: Exempt Under the RTA

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Summary

• The purpose of this CPD is to understand the legal obligations of both landlords and tenants where the Residential Tenancies Act does not apply to the tenancy agreement. The main example we will deal with today is the situation where a tenant is required to share a kitchen and or a bathroom with a landlord.

Topic's Covered

• A brief history of Landlord & Tenant Legislation in Ontario
• The application of the Trespass to Property Act, ("TPA")
• Police powers under the TPA for RTA exempt tenancies.
• The interplay between the Commercial Tenancies Act ("CTA") RTA exempt Tenancies
• Civil liability for wrongful evictions
• The correct procedure to terminate an RTA exempt tenancy under the CTA
• The source of authority to enforce the termination of a commercial tenancy under the CTA

Other Sources

• RTA Exempt Case References

A Brief History of Landlord & Tenant Legislation in Ontario

Legislation Title	Predecessor Act	Jurisdiction	Operative Period	Link
Residential Tenancies Act, 2006, S.O. 2006, c. 17	Tenant Protection Act, 1997, S.O. 1997, c. 24	Residential	January 1, 2007 to Current	https://www.ontario.ca/laws/statute/06r17
Tenant Protection Act, 1997, S.O. 1997, c. 24	Rental Housing Protection Act, RSO 1990, c R.24	Residential	to December 31, 2006	https://www.ontario.ca/laws/statute/97t24/v1
Rental Housing Protection Act, RSO 1990, c R.24	---	Residential	---	http://digitalcommons.osgoode.yorku.ca/rso/vol1990/iss10/28
Residential Rent Regulation Act, RSO 1990, c R.29	---	Residential	---	http://digitalcommons.osgoode.yorku.ca/rso/vol1990/iss10/33
Residential Tenancies Act, RSO 1980, c 452	---	Residential	---	http://digitalcommons.osgoode.yorku.ca/rso/vol1980/iss8/8

Legislation Title	Predecessor Act	Jurisdiction	Operative Period	Link
Commercial Tenancies Act, R.S.O. 1990, c. L.7	Landlord and Tenant Act, RSO 1990, c L.7	Non-Residential Tenancies	January 1, 2003 to Current	https://www.ontario.ca/laws/statute/90l07
Landlord and Tenant Act, RSO 1990, c L.7	Landlord and Tenant Act, RSO 1980, c 232	Non-Residential	January 1, 1990 to December 31, 1996	http://digitalcommons.osgoode.yorku.ca/rso/vol1990/iss6/6
Landlord and Tenant Act, RSO 1980, c 232	Landlord and Tenant Act, RSO 1970, c 236	Non-Residential	---	http://digitalcommons.osgoode.yorku.ca/rso/vol1980/iss4/7
Landlord and Tenant Act, RSO 1970, c 236	Landlord and Tenant Act , SO 1966, c 206	Non-Residential	---	http://digitalcommons.osgoode.yorku.ca/rso/vol1970/iss2/110
Landlord and Tenant Act , SO 1966, c 206	---	Non-Residential	---	http://digitalcommons.osgoode.yorku.ca/rso/vol1960/iss2/81

Authority of the Police under the TPA

The Residential Tenancies Act, RSO 2006

5 This Act does not apply with respect to,

(a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;

(b) living accommodation whose occupancy is conditional upon the occupant continuing to be employed on a farm, whether or not the accommodation is located on that farm;

...

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

...

(f) short-term living accommodation provided as emergency shelter;

(g) living accommodation provided by an educational institution to its students or staff where,

(i) the living accommodation is provided primarily to persons under the age of majority, or all major questions related to the living accommodation are decided after consultation with a council or association representing the residents, and

(ii) the living accommodation does not have its own self-contained bathroom and kitchen facilities or is not intended for year-round occupancy by full-time students or staff and members of their households;

(h) living accommodation located in a building or project used in whole or in part for non-residential purposes if the occupancy of the living accommodation is conditional upon the occupant continuing to be an employee of or perform services related to a business or enterprise carried out in the building or project;

The Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”)

1 (1) In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.”

Talking Point's

1) A tenant is an occupier as contemplated under the Trespass to Property Act, R.S.O. 1990 as RTA exempt tenant is a “…person who is in physical possession of premises…”, as per section 1 of the TPA. The tenant would be a person acting under the lawful authority confirmed by contract via the license to occupy granted by a home owner.

Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC) (“Davidson”)

[19] I conclude after review of the terms of the ticket, and the relevant case law that the defendants are not entitled to revoke at will the licence granted to the plaintiff, and to treat the plaintiff as a trespasser after he refused to voluntarily leave the SkyDome.”

[37] In what circumstances can a ticket holder be arrested and removed from the premises? I emphasize that although the management cannot rely upon the provisions of the Act to arrest and evict ticket holders, the police and the Blue Jays security personnel are not without remedies. The reasons in this case in no way diminish the police powers to arrest in accordance with law, when the facts and circumstances support the arrest.

[38] If the police believe on reasonable and probable grounds after appropriate investigation that a ticket holder has committed, or is about to commit an indictable offence, then the police can rely upon the powers to arrest stipulated in the Criminal Code, R.S.C. 1985, c. C-46 (see s. 495(1)(a) and R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241). The scope of the appropriate investigation is factually dependent upon the urgency of the situation. The police may also arrest if they encounter a ticket holder actually committing any offence, whether it be an indictable or summary offence (see s. 495(1)(b) and R. v. Biron (1975), 1975 CanLII 13 (SCC), 23 C.C.C. (2d) 513, 59 D.L.R. (3d) 409 (S.C.C.)).

[39] The Act does not apply in the context of ticket holders. Any arrest pursuant to the Act is therefore unlawful. The ticket is a personal revocable licence, and provides the holder a right or authority conferred by law to be present in the premises of the SkyDome. The licence may be revoked by management in accordance with the terms and conditions stipulated on the reverse side of each ticket. If the holder is in breach of any municipal, provincial or federal by-law or regulation he or she may be removed without compensation. In accordance with the common law, the ticket holder has a licence for value that is an enforceable right to attend the event in question until its conclusion, provided the ticket holder behaves properly and complies with the rules of management.”

Application of the CTA to RTA Exempt Tenants

Commercial Tenancies Act, R.S.O. 1990

1. In this Act,

“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II and III also includes the person entitled to possession of the premises;

“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives.

...

2 This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24, s. 213 (3); 2006, c. 17, s. 247.

...

74 (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies. R.S.O. 1990, c. L.7, s. 74 (1); 1993, c. 27, Sched.; 2006, c. 19, Sched. C, s. 1 (1).

(2) The court shall in writing appoint a time and place at which a judge will inquire and determine whether the person complained of was tenant to the complainant for a term or period that has expired or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession. R.S.O. 1990, c. L.7, s. 74 (2).

(3) Notice in writing of the time and place appointed, stating briefly the principal facts alleged by the complainant as entitling the complainant to possession, shall be served upon the tenant or left at the tenant’s place of abode at least three days before the day so appointed, if the place appointed is not more than twenty miles from the tenant’s place of abode, and one day in addition for every twenty miles above the first twenty, reckoning any broken number above the first twenty as twenty miles, to which notice shall be annexed a copy of the judge’s appointment and of the affidavit on which it was obtained, and of the documents to be used upon the application. R.S.O. 1990, c. L.7, s. 74 (3).

Newman v. Glanville, 2019 ONSC 1040 (CanLII)

[1] Mr. Newman owns a house which is located at 446 Whitmore Avenue in Toronto. Cedric Glanville became a tenant in Mr. Newman’s home in August, 1994. It appears that the two friends never did have a written lease but Mr. Glanville paid his rent weekly and they shared the house for many years.

[2] Mr. Newman now applies under rule 14.05 for an order to evict Mr. Glanville.

[3] Mr. Newman has filed an affidavit in which he indicates that he first gave written notice to Mr. Glanville to leave the house back in 2010. He has repeatedly asked him to leave since then but Mr. Glanville has refused. In the interim, Mr. Glanville has begun to drink heavily and makes no effort to clean up after himself. He has not paid his rent since March 9, 2018 and he refuses to pay his arrears despite repeated requests by Mr. Newman.

[4] Mr. Newman served a written Notice of Eviction on Mr. Glanville on August 8, 2018. The Notice gave Mr. Glanville 60 days to vacate the house. The notice clearly set out the reasons for the eviction including the failure to clean garbage from the home, a refusal to clean the bathroom leaving it in “a disgusting state” and the excessive use of utilities. Notwithstanding a very reasonable notice period, Mr. Newman has not vacated the house.

[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:

a. order the payment of rent;

b. make a costs order;

c. award damages: and

d. issue injunctive relief to restrain any future breach of the lease agreement.

[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.

[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.

[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.

[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.

[14] There will be an order declaring that the lease was terminated on October 8, 2018.

[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019.

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII) (“Carr”)

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;

• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

• There is no evidence that Morgan gave Roxanne notice to leave the home; and

• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

Roxanne was, at a Minimum, a Licensee and Entitled to Remain”

Talking Point's

• Police do not have the power to effect civil evictions.
• Landlords who share a kitchen or a bathroom with a tenant must follow the procedure to terminate a commercial tenancy as outlined in Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC).

Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC)

The procedure

After judgment for possession is obtained, the occupants of the premises must be given formal notice that possession will be sought, in accordance with the procedures mandated by rule 60.10 of the Rules of Civil Procedure, and by the decision of Master Dunn in Jamort Investments Ltd. v. Fitzgerald, 1968 CanLII 371 (ON SC), [1968] 1 O.R. 541 (Master's Ch.).

After notice is given, the occupants may apply to the court for relief. If they do not do so within 14 days, then an ex parte motion for leave to issue a writ of possession may be brought before a master. On the return of the motion, an affidavit or other suitable evidence is presented, indicating, inter alia, the names of the occupants of the property, the circumstances of their occupancy, and attesting to the fact that notice of impending eviction has been given. The master then must make a determination as to whether or not any occupant of the premises is a tenant within the meaning of that word in the Landlord and Tenant Act. If the occupancy is governed by the Act, then s. 46(1) of the Mortgages Act precludes the issuance of the order.

No Right of Self Help

Regina v. Doucette, 1960 CanLII 138 (ON CA) (“Doucette “)

The court of appeal observed that there are limitations on the right of a private party to use self-help methods to enforce lawful rights. The court specifically cited Court of Appeal in R. v. Shand (1904), 1904 CanLII 109 (ON CA), 7 O.L.R. 190 stating:

“The limitations upon the right of an owner to repossess his goods without process of law are stated clearly and succinctly in 3 Blackstone, Commentaries, pp.3-4, from which I quote

Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; ... if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use provate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.

Further in Doucette (supra) the Ontario Court of Appeal observed that:

“This passage in Blackstone was commented upon and applied by Parke, B., in Patrick v. Colerick (1838), 3 M. & W. 483. See also Davis v. Whitridge, (1847), 2 Strob. 232.

It is very clear that whatever rights the vendor or his assignee or their authorized agent might have had under the terms of the conditional sales contract (the purchase money being in arrear and unpaid) to enter upon Chappell's premises to resume possession of the goods in question, it would be illegal for them to take such possession by force. Traders Bk. v. Browne Mfg. (1889), 18 O.R. 430, cited by counsel for the respondents is authority for this proposition. In Re Nu-Way Meat Market (1940), 22 C.B.R. 46, it was held that the liquidator might claim possession of a truck sold to a debtor under suspensive conditions of property, where the vendor had taken possession of it by force and deceit since the winding up, and had neglected to furnish the liquidator with the detailed account of what was still owned by the debtor; whatever the terms of the deed, no one had the right to take the law into one's own hands.

[...]

There must be reasonable limits imposed upon the right of self-help assumed and asserted by private individuals in order to preserve peace and tranquillity and to avoid the evil consequences which are bound to flow from insistence upon a right to use private force. Under s. 39 of the Cr. Code, the peaceable possessor of movable property under a claim of right is protected from criminal responsibility (although not from civil responsibility) for resisting its taking even by the person legally entitled.”

Talking Point's

1) A landlord’s remedy of self-help is limited to consent only,

Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division)

53. If the solicitor counselled or countenanced these clearly illegal acts of his clients his own conduct was outrageous, and well below the standard which the court is entitled to expect from any solicitor licenced to practice as such in Ontario. The policy against self-help - against the recovery of possession of residential premises except under the authority of a writ of possession - is too well established to allow for an exculpatory plea of ignorance of the law from a solicitor purporting to act in this area of the law. The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence. A majority of the persons in Metropolitan Toronto live in rented accommodation. The public interest in avoiding self-help remedies is obvious and the public policy is clearly reflected in the legislation. It is not tolerable that solicitors, or other representatives of landlords or tenants, whether through ignorance or defiance, countenance, counsel or assist with illegal activities such as those carried out in this case by Diane and Steve Divitcos.

66. In addition to the arguments based on the relevant provisions of the Mortgages Act and the Landlord and Tenant Act referred to above, the moving parties also rely upon the provisions of rule 60.10(2) of the Rules of Civil Procedure which states:

The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.”

Sharing a Kitchen and/or Bathroom with the Landlord

• The rental of a rooming accommodation is clearly a case where an owner is “…permitting the occupation of the premises in question…”.
• Where a license is issued to occupy a room or another space, where a tenant is required to share a kitchen and or a bathroom, the licensee is a tenant as defined by section 1 of the CTA.

Rights and Remedies under the CTA

Section 4, 20. (1), and 74. (1) of the CTA reads:

4. All persons being grantees or assignees of the Queen, or of any person other than the Queen, and the heirs, executors, successors and assigns of every of them, shall have and enjoy like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for the non-performance of other conditions, covenants, or agreements, contained and expressed in the indentures of their said leases, demises or grants against all and every of the said lessees and grantees, their executors, administrators, and assigns as the said lessors or grantors themselves, or their heirs or successors, might have had and enjoyed at any time or times.

20. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Superior Court of Justice brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just.

(…)

74. (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies.”

Enforcement of Termination under the CTA

2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149 (“Good Guys”)

• In Good Guys the Court of Appeal for Ontario at paragraph 3 the court found:

“We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.”

Talking Point's

• Once a landlord gives notice for possession under the CTA, for example under section 19 (1) of the CTA, or seeks to enforce their rights under section 18 of the CTA, the correct procedure is for the landlord to follow where the landlord believes that the tenant is wrongly failing to give up vacant possession of the leased premises, is to apply to the Superior Court of Justice under section 74 for a writ of possession, using the summary procedure provided for under Rule 14.05 of the Rules of Civil Procedure.

• The correct procedure for enforcement of the termination of a land lease under the CTA is exclusively found in s. 74 to s. 78.

Understanding the meaning of section 4 of the CTA:

• Section 4 of the CTA is understood as follows;
  • A landlord has an automatic right of re-entry without an application under section 74 (1) of the CTA for a limited set of reasons;
    • (1) whereby a tenant has failed to pay rent as due under the lease, and the landlord is seeking to enforce their common-law right of distrainment.
    • (2) where a landlord is required to dispose of waste.

• Where section 4 reads “…or other forfeiture….”
  • The interpretation of “…or other forfeiture….” is read as a catch-all where the act does not specifically speak to conditions under which forfeiture may take place. The only common-law right that could be exercised here would be distrainment.

• The balance of section 4 of the CTA is read as requiring a landlord to apply under section 74 (1) where the landlord believes that the tenant is in a position of “…non-performance of other conditions, covenants, or agreements, contained … in the … lease(s)…”.

• It is important to note that section 4 does not address what happens when the parties disagree as to the facts.

Section 74 (2) of the CTA, the Act reads:

• The court shall in writing appoint a time and place at which a judge will inquire and determine whether the person complained of was tenant to the complainant for a term or period that has expired or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession.

The principle to be extracted in 74 (2) of the act is:

• where there is a dispute between the landlord and a tenant as to the validity of notice given under section 19 (1) of the CTA, or where there is a dispute as to actual payment owing under section 18; only a judge of the Superior Court of Justice can make a determination if a breach of the lease or other provision of the Act has occurred.

• A landlord is REQUIRED to obtain writ of possession under section 74 (2) of the CTA where a tenant DOES NOT VOLUNTARY give up possession of the leased premises.

Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC) (“McRae”).

In McRae the court states:

Before determining whether a sheriff has the authority to refuse to execute a writ of possession issued by the court, I must first determine whether there are appropriate safeguards in place to ensure that writs of possession are not issued arbitrarily, but only in accordance with principles of fairness and with full respect accorded to the rights of occupants of the subject premises. I turn now to an assessment of that question.

The Procedure to Remove a Commericial / RTA Exempt Tenant

After judgment for possession is obtained, the occupants of the premises must be given formal notice that possession will be sought, in accordance with the procedures mandated by rule 60.10 of the Rules of Civil Procedure, and by the decision of Master Dunn in Jamort Investments Ltd. v. Fitzgerald, 1968 CanLII 371 (ON SC), [1968] 1 O.R. 541 (Master's Ch.).

After notice is given, the occupants may apply to the court for relief. If they do not do so within 14 days, then an ex parte motion for leave to issue a writ of possession may be brought before a master. On the return of the motion, an affidavit or other suitable evidence is presented, indicating, inter alia, the names of the occupants of the property, the circumstances of their occupancy, and attesting to the fact that notice of impending eviction has been given. The master then must make a determination as to whether or not any occupant of the premises is a tenant within the meaning of that word in the Landlord and Tenant Act. If the occupancy is governed by the Act, then s. 46(1) of the Mortgages Act precludes the issuance of the order.”

Civil Penalities for Illegal Evictions under the CTA

Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC)

• the courts awarded $35,000 in general damages, $50,000 in aggravated damages, and $125,000 in punitive damages for unlawful arrest. See paragraph 44, Appendix “A”.

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

• the court stated at paragraph 254:

“In summary, the defendants are liable to Roxanne as follows:

1. Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for the following damages:

a) General damages in the amount of $90,000.00;

b) Damages for loss of earning capacity in the amount of $120,000.00; and

c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84.

2. Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of $7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.”

29. Given the above the applicant is seeking general damages in the amount of $50,000 jointly payable by all respondents for the unlawful detainment and arrest of the applicant.

30. The applicant is further seeking an injunction allowing the applicant to re-possess the leased premises forthwith.

31. The applicant seeks an order requiring the respondents to restore all services including power to the leased premises on a forthwit basis.