The Impact of Newman v. Glanville, 2019 ONSC on Vulnerable and High Risk Tenants

Overview

Under the Residential Tenancies Act, 2006 S.O there are several classes of landlord tenant relationships that are excluded from the protections granted by the RTA. Broadly speaking the following classes of tenancies are exempted by the RTA:

• Tenancies where the Landlord and Tenant are required to share a kitchen and/or a bathroom
• Seasonal or temporary period in a hotel or the like
• Tenancies connected to ones employment
• Tenancies connected to emergency shelters
• Tenancies connection to post-secondary education institutes
• Tenancies connected to rehabilitative or therapeutic services

Generally speaking the policy reason for allowing the above exceptions is that the above classes of tenancies exist for a specific purpose where the general framework of the Residential Tenancies Act would not fit the express purposes of those tenancies purposes. What is not addressed in the RTA is what happens to those tenancy classes as a result of their exclusion from the Residential Tenancies Act.

There has been much speculation within landlord and tenant advocate circles over the last few years about what happens when a tenant within an excluded class is required to have their tenancy terminated and evicted for one reason or another. Generally speaking there have been three approaches regarding how a landlord can evict a tenant that falls under an excluded class of the Residential Tenancies Act:

1. The landlord simply changes the locks as the landlord believes that only contract law applies.
2. The tenant can be forced to leave by the landlord calling the police and having them removed under the authority of the Trespass to Property Act, R.S.O. 1990, c. T.21.
3. The landlord is required to make an application to the Superior Court of Justice and obtain a writ of possession, which must be enforced by a sheriff.

The third approach has not been very common. The focus of this summary is on the class of tenants exempted because they are required to share a kitchen and/or a bathroom with their landlord.

Along comes the case of Newman v. Glanville,. In this decision the Superior Court of Justice found at paragraph [7] that:

[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.

In my assessment the best way to understand the above decision is as follows; any landlord and tenant relationship that is not provided for under the RTA is by default covered by the Commercial Tenancies Act, R.S.O. 1990, c. L.7 ("CTA").

Policy Argument for including Shared Accommodations in the Residential Tenancies Act

(1) From a policy perspective it makes sense that a person who is required to share a kitchen and/or a bathroom with the landlord should have some reasonable limitations on the terms of the tenancy. In such a circumstance it makes sense that a landlord should have the right to end the tenancy on reasonable notice if they are simply uncomfortable with that tenant. It further makes sense that the landlord should have the right to terminate the tenancy at the end of the rental term without cause or on a no fault basis. What does not make sense is that a tenant who is required to share a kitchen and/or bathroom with the landlord can simply be ejected from the rental property without due process in a court or tribunal.

(2) The consequence of exempting certain classes of tenancies from the Residential Tenancies Act, 2006 S.O is simply exposing those tenancies to the much more harsh conditions set-out in the Commercial Tenancies Act. Individuals who rent a room in a property that shares a kitchen and/or a bathroom with a landlord are often the most economically vulnerable individuals in society.

(3) If a RTA exempt tenant were to be evicted under the authority of section 18. (1) of the Commercial Tenancies Act in error the obligation would be on the tenant to make a complex and often expensive application to the Superior Court of Justice, seeking an interim injunction granting possession of the property again, and in some cases a sheriff may be required to enforce such an order. This kind of process could not have been the intent of parliament when drafting section 5. (i) of the Residential Tenancies Act.

(4) I do understand that a landlord in a situation where violence or the potential for violence has emerged in a residence the landlord may feel they have the right to remove a tenant immediately. The problem with this argument is that a person can be rendered homeless without any kind of due process of law. The other concern is that this kind of summary termination process is ripe for abuse by any disgruntled landlord. From a landlords perspective, when a person is trying to rent out a few rooms for as little as $400 a month the landlord could be put through the expense of spending thousands of dollars in Superior Court to resolve a tenancy dispute. This kind of heavy handed approach could be better resolved under the existing Landlord & Tenant Board framework more efficiently and cost effectively for both the landlord and the tenants.

(5) In the case of Carr v Ottawa Police Services Board, 2017 ONSC 4331 Ms. Roxanne Carr was a tenant who was renting a room from a landlord in which she was required to share a kitchen and/or a bathroom with the landlord. During the tenancy the landlord grew unhappy with the presence of Ms. Carr and obtained the assistance of the police to remove her without notice under the authority of the Trespass to Property Act, R.S.O. 1990, c. T.21. Ms. Roxanne Carr ended up suing the Ottawa Police Service for what she submitted was an unlawful eviction. What the court eventually found is stated at paragraph [28] of that decision which has been quoted below:

[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

(6) What the case of Carr v Ottawa Police Services Board, 2017 ONSC 4331 shows is that the courts are unwilling to accept the position that police can be used to enforce a residential eviction under the cover of a Trespass to Property Act ("TPA") claim by a disgruntled landlord. Given that landlords cannot rely on the Residential Tenancies Act, 2006 S.O to remove unwanted tenants that are excluded from the RTA the decision of Newman v. Glanville makes much more sense.

Understanding the Purpose of the Commercial Tenancies Act

The title of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 is a bit of a misnomer in the sense that the title gives the public the impression that the Commercial Tenancies Act only applies to commercial tenancies. This is not in fact the case. Section 2 of the Commercial Tenancies Act states:

"This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24,".

This means that the Commercial Tenancies Act is the default law applicable to landlord and tenants when the RTA does not apply. The Commercial Tenancies Act applies in cases even where the tenant is not operating a commercial business but occupies a rental property for the express purposes of residential use, as long as the class of the residential tenancy falls within one of the exempted classes of the Residential Tenancies Act, 2006 S.O.

Consequences of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 applying to a Residential Tenancy under an exempt class

Just like the Residential Tenancies Act, 2006 S.O the Commercial Tenancies Act, R.S.O. 1990, c. L.7 has sections that govern when and how a landlord may terminate a tenancy and evict a tenant. There are however some stark differences between how a tenant covered by the RTA may be evicted as compared to how a tenant covered by the Commercial Tenancies Act may be evicted. Below is a helpful chart to illustrate the differences.

Act (laws)	Reason for Termination of Tenancy	Section	Notice Requirement	Process Requirement	Enforcement
Commercial Tenancies Act, R.S.O. 1990, c. L.7	Non-Payment of Rent	18. (1)	None	Locks changed by landlord (No need for the landlord to apply to a court or tribunal for permission)	Self-Help
Commercial Tenancies Act, R.S.O. 1990, c. L.7	Operating an Illegal Business	18. (2)	"Reasonable Notice"	Locks changed by landlord (No need for the landlord to apply to a court or tribunal for permission)	Self-Help
Commercial Tenancies Act, R.S.O. 1990, c. L.7	Breach of Contract or Interference in Reasonable Enjoyment	19. (1)	"Reasonable Notice"	Application to the Superior Court of Justice for a Writ of Possession	Vacant possession can only be given by the Sheriff's Office
Act (laws)	Reason for Termination of Tenancy	Section	Notice Requirement	Process Requirement	Permissible Enforcement
Residential Tenancies Act, 2006 S.O	Non-Payment of Rent	59 (1)	14 days	Serve Formal Notice (N4), file an application with the Landlord & Tenant Board seeking an order of eviction	Vacant possession can only be given by the Sheriff's Office
Residential Tenancies Act, 2006 S.O	Operating an Illegal Business	61 (1)	10 days	Serve Formal Notice (N6), file an application with the Landlord & Tenant Board seeking an order of eviction	Vacant possession can only be given by the Sheriff's Office
Residential Tenancies Act, 2006 S.O	Breach of Contract or Interference in Reasonable Enjoyment	64 (1)	7 days	Serve Formal Notice (N5), file an application with the Landlord & Tenant Board seeking an order of eviction	Vacant possession can only be given by the Sheriff's Office

Other Remedies Available for Non-Payment by Tenants

Act	Section	Breach	Remedy Available
Residential Tenancies Act, 2006 S.O	40.	Non-Payment of Rent	No landlord shall, without legal process, seize a tenant’s property for default in the payment of rent or for the breach of any other obligation of the tenant.
Commercial Tenancies Act, R.S.O. 1990, c. L.7	30. (1)	Non-Payment of Rent	The goods and chattels exempt from seizure under execution are not liable to seizure by distress by a landlord for rent, except as hereinafter provided.

As noted above, under the RTA no landlord has the right to seize a tenant's personal property and sell it to cover losses for rent. On the other hand, under the CTA a landlord does have a limited right to seize a tenant's personal property and sell it to cover losses for rent.

Moving Forward

It is my submission that the Commercial Tenancies Act, R.S.O. 1990, c. L.7 was not drafted for the purpose of addressing the needs and unique public policy considerations that are present within residential tenancies. What I purpose moving forward is amendments to the Residential Tenancies Act, 2006 S.O that account for the public policy considerations that at present exclude certain classes of tenancies from the Residential Tenancies Act, 2006 S.O and reintegrate some of those previously excluded classes of tenancies back into the general framework of the RTA; but adjusting the RTA to account for the policy considerations that caused the the excluded classes of residential tenancies to be excluded in the first place.

Key Take Away Point

• The Commercial Tenancies Act, R.S.O. 1990, c. L.7 exposes vulnerable and high risk tenants to unlawful evictions and in some cases summary evictions without any kind of notice.
• The Commercial Tenancies Act, R.S.O. 1990, c. L.7 requires the use of a highly complex and often expensive court process to defend ones rights.
• The Commercial Tenancies Act, R.S.O. 1990, c. L.7 permits a completely legal summary eviction of cretin residential tenants without the need for any kind of due process prior to the eviction and re-possession of the rental property by the landlord.
• The purpose of the proposed amendment's are to balance the need's of vulnerable tenant's by providing cost effective access to due process prior to termination of a tenancy while also take into account the reality that landlords who share a kitchen and/or a bathroom with a tenant should not be required to continue this relationship indefinitely. In short, a no-fault eviction process should be in place for cretin classes of residential tenancies.

Purposed Draft Amendment to the Residential Tenancies Act, 2006 S.O ("RTA")

Repeal Section 5. (g)

5 This Act does not apply with respect to,

(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;

Repeal Section 5. (i)

5 This Act does not apply with respect to,

(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;

Add the following new section 12.2;

12.2 (1) A person shall be a tenant for the purpose of this section if the conditions in subsection (2) are satisfied.

(2) The 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; or,

(3) 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;

Add the following new section 38;

38 (4) Subsection (1), (2) and (3) do not apply with respect to tenancies that are classified under section 12.2 subsection (2) or (3) of the Act.

Add the following new section 38.1;

38.1 (1) If a tenant is classified as a tenant under section 12.2 (2) or section 12.2 (3) subsection (2) applies.

(2) A tenant under this section has no right to occupy the rental unit after the end of the tenancy, unless subsection (4) applies.

(3) This section applies with respect to all tenants under this section, regardless of whether their tenancies are periodic, fixed, contractual or statutory.

(4) Unless the landlord and tenant consent to a renewal of the lease term;

(i) the tenancy shall be deemed to be terminated at the end of the fixed term, unless subsection (6) applies.

(ii) if the tenancy agreement has no fixed term then then the tenancy may be terminated if the landlord or the tenant provide 60 days notice in the prescribed form. The termination date on the notice must fall on the last day of a rental period.

(5) If a tenancy is terminated under this section the landlord may apply to the Board under section 69 (1) of the Act.

(6) If a landlord does not apply to the board within 30 days after a tenancy is deemed to be terminated, and the tenant is still in possession of the rental unit, the tenancy shall be deemed to be renewed for a fixed term of 60 days.

Add the following new section 58.1

58.1 (1) A landlord may give a tenant notice of termination of their tenancy if the conditions under subsection (2) apply.

(2) The tenant is a tenant for the purposes of section 12.2 and;

(i) the tenancy agreement has no fixed term,

(ii) or the fixed term of the tenancy has expired.

(3) If the conditions under subsection (2) are met and the landlord or the tenant may terminate the tenancy, if;

(a) The landlord or the tenant serve a notice to terminate the tenancy in the prescribed form with a minimum of 30 days notice where the last day of the notice falls on the last day of a rental period

(4) If the landlord has served a notice in accordance with subsection (1) the landlord may apply to the Board under section 69 (1) of the Act.

Add the following new section 95.1

95.1 (1) The landlord shall not be required to assign a tenancy agreement if a tenant is a tenant for the purposes of section 12.2

Add the following new section 97.1

97.1 (1) The landlord shall not be required to sublet a tenancy agreement if a tenant is a tenant for the purposes of section 12.2

About Me

• Shaun D. Harvey, B.A
• Licensed Paralegal, with the Law Society of Ontario since 2013
• I practice in the area of Landlord & Tenant, as well as Small Claims Court.
• Tel: (226) 600-1076
• sharvey@riverview.legal