Trailer Park (Eviction) - Re: Commercial Tenancy

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-03
CLNP Page ID:	1883
Page Categories:	[Eviction (Commercial Tenancy)], [RTA Exempt Tenancies]
Citation:	Trailer Park (Eviction) - Re: Commercial Tenancy, CLNP 1883, <6V>, retrieved on 2024-05-03
Editor:	Sharvey
Last Updated:	2022/03/01

Commercial Tenancies Act, R.S.O. 1990, c. L.7

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, III and IV also includes the person entitled to possession of the premises; (“locateur”)

..

“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives. (“locataire”) R.S.O. 1990, c. L.7, s. 1; 1994, c. 2, s. 1; 1994, c. 4, s. 1; 1997, c. 24, s. 213 (1, 2); 1999, c. 6, s. 9 (1); 2005, c. 5, s. 10 (1, 2); 2020, c. 10, s. 1; 2020, c. 23, Sched. 2, s. 1; 2021, c. 4, Sched. 11, s. 2.

...

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.

...

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.

...

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).

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

[1] As a courtesy by letter dated June 17, 2019, this court’s Senior Legal Officer alerted the parties to a potential problem regarding this court’s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today’s attendance.

[2] The parties did not do so but argued that this court has jurisdiction to hear this appeal.

[3] 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.

[4] As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.

[5] Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Feeney v. Noble, 1994 CanLII 10538 (ON SC)

Issue No. 1

Section 103 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7 (the "Act"), provides as follows:

103(1) Despite section 98, 99, 100, 101 or 102, where a landlord in good faith requires possession of residential premises at the end of,

(a) the period of the tenancy; or

(b) the term of a tenancy for a fixed term,

for the purpose of occupation by himself or herself, his or her spouse or a child or parent of the landlord or the landlord's spouse, the period of the notice of termination required to be given is not less than sixty days.

...

The tenant submits that the notice of termination did not comply with s. 103(1) of the Act because Feeney was not the landlord at the appropriate time that the notice was given. In my opinion this is not the proper construction to be placed upon the Act. If it were a person could not purchase a property for his own use and gain possession on closing. He would have to purchase it and then give the appropriate notice and wait for the expiry of that notice before bringing the application to court. This is unreasonable and not within the intent of the Act. It should be remembered that the notice itself does not evict the tenant. If the tenant chooses not to vacate, the landlord must still apply for an order of termination and writ of possession before the tenant must vacate. If for some reason the purchase had not been completed Feeney would not have the status to bring the application. The important thing is to provide reasonable notice to the tenant.

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.”

Campbell v. 1493951 Ontario Inc., 2020 ONSC 4029 (CanLII)

[5] Tri-Echo Restaurants opposes Mr. Campbell’s application but does so without prejudice to its own position under its lease with 149. Tri-Echo takes the position that its agreement with Mr. Campbell was a license to occupy the premise not a sub-lease.

...

[11] An agreement will constitute a lease if it grants, and was intended to grant, exclusive possession of the premises to the occupant.[6] I am satisfied that the agreement between Mr. Campbell and Tri-Echo was a sub-lease.

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.