Termination of Tenancy (Care Homes)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2268
Page Categories:	[Care Homes (LTB)]
Citation:	Termination of Tenancy (Care Homes), CLNP 2268, <https://rvt.link/80>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2024/01/16

Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

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“care home” means a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy; (“maison de soins”)

“care services” means, subject to the regulations, health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living; (“services en matière de soins”)

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3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 2013, c. 3, s. 22 (1).

(1.1) In interpreting a provision of this Act with respect to a member unit of a non-profit housing co-operative, if a provision in Part V.1 conflicts with a provision in another Part of this Act, the provision in Part V.1 applies. 2013, c. 3, s. 22 (2).

(2) In interpreting a provision of this Act with regard to a care home, if a provision in Part IX conflicts with a provision in another Part of this Act, the provision in Part IX applies. 2006, c. 17, s. 3 (2).

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(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies. 2006, c. 17, s. 3 (4).

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21 (1) A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.  2006, c. 17, s. 21 (1).

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37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

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144 (1) A landlord may, by notice, terminate the tenancy of a tenant in a care home if,

(a) the rental unit was occupied solely for the purpose of receiving rehabilitative or therapeutic services agreed upon by the tenant and the landlord;

(b) no other tenant of the care home occupying a rental unit solely for the purpose of receiving rehabilitative or therapeutic services is permitted to live there for longer than the prescribed period; and

(c) the period of tenancy agreed to has expired. 2006, c. 17, s. 144 (1).

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148 (1) A landlord may apply to the Board for an order transferring a tenant out of a care home and evicting the tenant if,

(a) the tenant no longer requires the level of care provided by the landlord; or

(b) the tenant requires a level of care that the landlord is not able to provide. 2006, c. 17, s. 148 (1).

(2) The Board may issue an order under clause (1) (b) only if it is satisfied that,

(a) appropriate alternate accommodation is available for the tenant; and

(b) the level of care that the landlord is able to provide when combined with the community based services provided to the tenant in the care home cannot meet the tenant’s care needs. 2006, c. 17, s. 148 (2).

(3) If a dispute arises, the dispute shall be sent to mediation before the Board makes an order. 2006, c. 17, s. 148 (3).

(4) If the landlord fails to participate in the mediation, the Board may dismiss the landlord’s application. 2006, c. 17, s. 148 (4).

Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin, 2020 ONSC 7405 (CanLII)

[1] Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands (“the appellant”) appeals an order of the Landlord and Tenant Board dated September 5, 2019 that ordered it to reinstate the respondent André Séguin to the care home in which he had been living prior to his eviction. The appellant argues that the Board had no authority to order reinstatement, and it had denied procedural fairness to the appellant during the hearing that led to the order.

[2] For the reasons that follow, I would dismiss the appeal, as the Board had the statutory authority to make the reinstatement order, and there was no denial of procedural fairness in the way the hearing was conducted.

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[24] In the final decision dated September 5, 2019, the Board found that the appellant had substantially interfered with the respondent’s reasonable enjoyment of the rental unit or the residential complex, because it had evicted him without proper notice of termination and without an order of eviction from the Board. The member concluded that it was appropriate to order the respondent reinstated to possession of the rental unit, and she ordered that he be allowed to return to the rental unit immediately.

[25] In her reasons, the member stated that there was insufficient evidence to prove that there had been illegal entry to the rental unit or that the lock to the rental unit or the residential premises had been changed. She also rejected the argument that there had been an “induced vacating” under s. 31(2).

[26] The member explained why she refused to hear the appellant’s evidence with respect to the reasons that the tenant was evicted, relying on s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the “SPPA”). At para. 9, she stated,

In my view, allowing the Landlord to introduce evidence regarding what led to the Tenant’s unlawful eviction would have amounted to an abuse of process as it would have allowed the Landlord to circumvent the Act’s requirements respecting how landlord’s [sic] can lawfully terminate a tenancy.

[27] The member considered the appellant’s arguments against reinstatement, including the fact that JJ had been assigned the room by the Ministry, and that employees might refuse to work and the appellant might have to close the home. However, she concluded that she could order reinstatement pursuant to s. 31(1)(f) of the Act in the circumstances, and reinstatement was the proper remedy. As she stated (at para. 13),

In my view, it is the Landlord which put itself in this position by unlawfully evicting the Tenant and it would be unfair to deny the Tenant the right to return to the rental unit due to Landlord’s failure to take the steps necessary to terminate the tenancy and evict the Tenant in accordance with the Act. Therefore, I find that the Tenant must be permitted to return to the rental unit immediately.

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The Board Had the Power to Reinstate

[58] The appellant argues that the Board erred in law in ordering reinstatement, because there was no statutory authority to make such an order.

[59] In the present case, the Board found that the appellant had violated s. 29(1)3, substantial interference with the reasonable enjoyment of the rental unit or residential complex by the tenant. The respondent had also invoked s. 29(1)5, the provision prohibiting the changing of locks without providing a replacement key. The Board found that the respondent had not proved the allegation respecting the changing of locks.

[60] The Board relied on the basket clause in s. 31(1)(f) to order reinstatement of the respondent. That provision allows the Board to make any order that it considers appropriate. The appellant argues that the Board erred because the only power to reinstate is found in s. 31(3). That provision states that it is “in addition to” the remedies in s. 31(1). Therefore, the appellant argues, reinstatement cannot be ordered under s. 31(1)(f).

[61] The appellant relies on the principle of tautology – that the Legislature does not use meaningless or superfluous words. According to its interpretation, s. 31(3) provides a reinstatement remedy only if the conditions in s. 31(3) are met: the Board must find that the landlord changed the locks to the rental unit or residential complex without providing replacement keys to the tenant, and the rental unit must be vacant. In the present case, the appellant argues, there has been no proof the locks were changed and there is another tenant, JJ, so the Board erred in law in ordering reinstatement.

[62] I disagree. The modern approach to statutory interpretation requires that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559 at para. 26).

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[65] In my view, the appellant’s proposed interpretation is inconsistent with the overall remedial purpose of the Act and would lead to an absurd result. The emphasis in the Act is on security of tenure for tenants, who can be removed by the landlord only in circumstances set out in the Act, on notice and after a hearing and order from the Board. As the Divisional Court stated in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 (at paras. 38), “Losing one’s home is a very serious matter for anyone.” It is even more grave when the evicted tenant is a vulnerable individual like the respondent who is living in a care home where he has 24-hour care.

[66] The appellant’s interpretation would provide a remedy of reinstatement only to those who have been locked out and the unit is vacant. Such an interpretation would result in unreasonable and inequitable outcomes that are incompatible with a major purpose of the legislation, the protection of tenants from unlawful evictions. For example, an individual like the respondent who lives in a care home may not have keys to his door. Yet such a vulnerable individual is particularly in need of protection from unlawful eviction, as is evident in the present case.

[67] Moreover, to restrict a reinstatement order to a situation where the locks are changed would leave many other tenants, evicted directly or indirectly by other means, without a remedy of reinstatement. As the respondent’s factum points out, a landlord might directly or indirectly oust a tenant from possession by other means, such as the use of security guards, threats or intimidation, blocking access to the property, cutting off utilities, or taking advantage of a tenant’s physical or mental disabilities. The appellant submits that the induced vacating provision would apply to them However, that ignores the fact that many such tenants would want to return to their home, and the monetary relief in s. 31(2) would not be an adequate remedy. Section. 31(1)(f), read in a large and liberal manner and in light of its broad words, provides a remedy of reinstatement for these tenants who have been unlawfully evicted, even if the locks were not yet changed.

[68] It is important to remember that since the respondent’s tenancy was not terminated in accordance with the Act, he remains a tenant, and he has the lawful right to possession of the unit. In Board decision TSL-06175-10-RV, 2010 CanLII 65490, the Board stated at para. 3: “this issue is primarily one of logic … If the tenancy was not terminated then the Tenant must have the right to possess the rental unit as that is a right that goes along with the tenancy agreement.”

Johnston v The Wexford Residence Inc., 2023 ONLTB 79729

55. On the basis of the evidence provided, I find that the Landlord was not entitled to serve the Tenant an N7 Notice. As determined in paragraph 44 above, the rental unit is a care home. As such, no notice of termination was required by the Landlord to seek a termination of the tenancy. Rather, the Landlord was required to file an L7 application, pursuant to s. 148(1)(b) of the Act, seeking to transfer the Tenant out of the care home and evicting the Tenant on the basis that the Tenant required a level of care that the Landlord could not provide. Furthermore, if a dispute arose between the parties with respect to s. 148(1)(b) of the Act, then, pursuant to s. 148(3) of the Act, mandatory mediation would be required before the Board heard the Landlord’s L7 application.

56. I accept that the Landlord served the Tenant an N7 on the basis of an incorrect assessment that the unit was not a care home. Accordingly, without an L7 application, mandatory mediation was not available to the Tenant pursuant to s. 148(3) of the Act.

57. On the basis of the evidence provided, I am not satisfied that, as alleged in the N7, the Tenant’s behaviour seriously impaired the safety of another person, the Tenant wilfully damaged the rental unit, or the Tenant used the rental unit in a manner inconsistent with its use as a residential premises and this caused serious damage. The Landlord did not establish that the Tenant seriously impaired another person, that the Tenant wilfully damaged the unit, or that the Tenant’s use of the shower was inconsistent with its use as a residential premises. Given the specific allegations provided by the Landlord in the N7 under s. 63 of the Act, I find that serving an N5 for substantial interference and negligent damage, pursuant to s. 64 and s. 62 of the Act respectively, would have been more appropriate in this matter – had the unit not been a care home

Criminal Code (R.S.C., 1985, c. C-46)

215 (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) to provide necessaries of life to their spouse or common-law partner; and

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

(3) Every one who commits an offence under subsection (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

(4) For the purpose of proceedings under this section,

(a) [Repealed, 2000, c. 12, s. 93]

(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child;

(c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and

(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.