View source for Non-Application of the RTA (Eviction)

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[[Category:Landlord Tenant]] ==See Also== * [[No Right of Self-Help]] * https://eviction.sucks/covid19-tenancies/covid19-tenancies-evictions * https://eviction.sucks/EN/landlord-tenant-disputes/shared-living-rights ==[https://www.ontario.ca/laws/statute/06r17 Residential Tenancies Act, 2006, S.O. 2006, c. 17]== Exemptions from Act<br> 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; ::(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; ::(n) any other prescribed class of accommodation. ==[https://www.ontario.ca/laws/statute/90l07 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 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. 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, <b>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, <u>by action only,</u> 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</b> 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. R.S.O. 1990, c. L.7, s. 4 <b><u>18. (1) Every demise, whether by parol or in writing</b></u> and whenever made, unless it is otherwise agreed, <b>shall be deemed to include an agreement that if the rent reserved, or any part thereof, remains unpaid for fifteen days after any of the days on which it ought to have been paid,</b> although no formal demand thereof has been made, <b><u>it is lawful for the landlord at any time thereafter to re-enter into and upon the demised premises or any part thereof in the name of the whole and to have again, repossess and enjoy the same as of the landlord’s former estate.</b></u> R.S.O. 1990, c. L.7, s. 18 (1). :(2) Every such demise shall be deemed to include an agreement that if the tenant or any other person is convicted of keeping a disorderly house within the meaning of the Criminal Code (Canada) on the demised premises or any part of it, or carries on or engages in, on the demised premises or any part of it, any trade, calling, business or occupation for which a licence is required under a business licensing by-law, as defined in subsection 1 (1) of the Municipal Act, 2001 or a by-law passed under paragraph 11 of subsection 8 (2) of the City of Toronto Act, 2006, as the case may be, without that licence, it is lawful for the landlord at any time thereafter to re-enter into the demised premises or any part of it and to have again, repossess and enjoy the same as of the landlord’s former estate. 2006, c. 32, Sched. C, s. 6. 19. (1) In this section and in sections 20 to 22, ::“action” includes a proceeding under Part III; (“action”) ::“under-lease” includes an agreement for an under-lease where the under-lessee has become entitled to have the under-lease granted; (“sous-bail”) ::“under-lessee” includes any person deriving title under or from an under-lessee. (“sous-preneur”) R.S.O. 1990, c. L.7, s. 19 (1). :<b><u>(2) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach</b></u> of any covenant or condition in the lease, <b><u>other than a proviso in respect of the payment of rent,</b></u> <u>is not enforceable by action, entry, or otherwise, unless the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach.</u> R.S.O. 1990, c. L.7, s. 19 (2). <b>20. (1) Where a lessor is proceeding by action or otherwise <u>to enforce a right</u> of re-entry or forfeiture,</b> whether for non-payment of rent or for other cause, the lessee may, <b><u>in the lessor’s action, if any, or if there is no such action pending</b></u>, 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. R.S.O. 1990, c. L.7, s. 20 (1); 2006, c. 19, Sched. C, s. 1 (1). 30. (1) 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. R.S.O. 1990, c. L.7, s. 30 (1). 35. (1) A tenant may set off against the rent due a debt due to the tenant by the landlord. R.S.O. 1990, c. L.7, s. 35 (1). 74. (1) <b><u>Where a tenant after the tenant’s lease or right of occupation,</b></u> 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 <b><u>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,</b></u> or which the tenant has been permitted to occupy, <b><u>the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for</b></u> 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) 76. (1) If, at the time and place appointed, the tenant fails to appear, the judge, if it appears to him or her that the tenant wrongfully holds against the right of the landlord, may order a writ of possession (Form 3) directed to the sheriff of the county or district in which the land lies to be issued commanding him or her forthwith to place the landlord in possession of the land. R.S.O. 1990, c. L.7, s. 76 (1). ==[https://www.ontario.ca/laws/statute/90t21 Trespass to Property Act, R.S.O. 1990, c. T.21]== 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. 9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1). :(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2). :(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3). ==[http://canlii.ca/t/j4vgz Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)]== <b><u>[63] Section 141(1) of the Courts of Justice Ac, R.S.O., c. C.43, states that "orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement".</b></u> [64] As held by Bale J. in his decision of January 8, 2019, in combination these two provisions make clear that the sheriff "is required to enforce the eviction order, in the same manner as a writ of possession…" [70] The Sheriff does not have the discretion to decide not to enforce the eviction orders. [71] In [http://canlii.ca/t/g1cmx Central Guaranty Trust Co. v. McRae (1993), 1993 CanLII 8542 (ON SC), 13 O.R. (3d) 295 (Sup. Ct.)], at para. 12, the Superior Court held that the Sheriff has a duty to enforce validly made writs of possession and no discretion not to do so: ::<i><b><u>A writ of possession is an order of the court. It is granted only after a Judge or master has made a judicial determination which includes consideration of the rights of the occupants.</b></u> A Sheriff is an officer of the court, sworn to uphold the law. Refusal by a law enforcement officer to enforce an order of the court can only serve to undermine respect for the judicial system and bring the administration of justice into disrepute. A Sheriff, therefore, has no discretion to refuse to execute a writ of possession.</i> [72] The same principle clearly applies to the Sheriff's obligation to enforce an eviction order made by the Board, given that section 85 of the Residential Tenancies Act provides that an eviction order is to be enforced in the same manner as a writ of possession. ==[http://canlii.ca/t/j5dbs Ravnaski v. Zolis, 2020 ONSC 923 (CanLII)]== [10] First, is Mr. Ravnaski a tenant of the estate such that any request for him to vacate the condominium is governed by the Residential Tenancies Act? The answer to this question will resolve both the estate’s application and part of Mr. Ravnaski’s application to set aside the arbitration award. If Mr. Ravnaski is a tenant of the estate and his tenancy is exclusively governed by the Residential Tenancies Act, the arbitrator did not have jurisdiction to order him to vacate the property and this Court does not have jurisdiction to grant the estate’s application for vacant possession. On the other hand, <b><u>if Mr. Ravnaski is not a tenant of the estate, the estate is entitled to an order for vacant possession of the condominium.</b></u> If this Court grants the estate’s application and orders Mr. Ravnaski to vacate the condominium, his application to set aside the arbitrator’s order that he vacate the condominium would be moot. <b><u>[15] The Residential Tenancies Act did not apply to the rental agreement Mr. Ravnaski had with his mother while she was alive, even though he paid her rent. The Residential Tenancies Act does not apply with respect to living accommodation whose occupant shares a bathroom or kitchen facility with the owner.[4] Mr. Ravnaski’s mother owned the condominium and they shared a kitchen. Mr. Ravnaski’s tenancy was, therefore, not covered by the Residential Tenancies Act while his mother was alive.</b></u> [17] For the reasons that follow, <b><u>I find that Mr. Ravnaski had a contract with his mother to live in her condominium for a month at a time in exchange for rent. The estate was required to permit Mr. Ravnaski to live in the condominium for the remainder of the month for which he paid before his mother passed away.</b></u> <u>Mr. Ravnaski never entered into a contract with the estate that would permit him to continue to live in the condominium after the agreement he had with his mother expired. As a result, he is not a tenant of the estate and has no legal entitlement to stay in the condominium.</u> [33] I find that Mr. Ravnaski is not a tenant of his mother’s estate and there has never been a valid tenancy agreement between Mr. Ravnaski and the estate. <b><u>Mr. Ravnaski’s occupation of the condominium was not governed by the Residential Tenancy Act while his mother was alive and that did not change after her death.</b></u> The Estate Trustee is entitled to vacant possession of the condominium and Ms. Zolis’ application (CV-19-00624557-000) is granted. [60] Mr. Ravnaski is not now and has never been a tenant of the estate. His occupation of the condominium is not governed by the Residential Tenancies Act. The estate’s application (CV‑19‑00624557-000) for vacant possession of the condominium is granted. <b><u>[61] In her application, Ms. Zolis asked for an Order that Mr. Ravnaski vacate the property immediately. She also asked for an Order authorizing her to seek the assistance of the Sheriff to secure the vacant possession of the property if Mr. Ravnaski does not voluntarily leave.</b></u> [62] Mr. Ravnaski is ordered to vacate the property within 90 days from today. If Mr. Ravnaski refuses to leave the condominium in compliance with my order, Ms. Zolis, in her capacity as the Estate Trustee, is granted leave to issue a writ of possession in relation to the condominium and require the Sheriff of the City of Toronto (the “Sheriff”) to put her in vacant possession of the condominium. Ms. Zolis, in her capacity as the Estate Trustee, can seek the assistance of the Toronto Police Service, the Sheriff and any qualified and licensed locksmith to obtain and secure vacant possession of the condominium. To the extent that the Toronto Police Service, the Sheriff of the City of Toronto or a locksmith are involved with securing vacant possession of the condominium for the Estate Trustee, they are to be held harmless. ==[http://canlii.ca/t/h4tf7 Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)]== [24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s [https://laws-lois.justice.gc.ca/eng/const/page-15.html Charter rights]. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed. Issue No. 1 - Did the police have authority, under either of the provincial [https://www.ontario.ca/laws/statute/90t21 Trespass to Property Act] or the [https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code of Canada], to arrest Roxanne without a warrant? [25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the [https://www.ontario.ca/laws/statute/90t21 Trespass to Property Act, R.S.O. 1990, c. T.21] (“TPA”) and the [https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code of Canada, R.S.C. 1985, c. C-46] (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant. ::'''a) Arrest Without a Warrant Under the TPA [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 [https://www.ontario.ca/laws/statute/90t21 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 [https://www.ontario.ca/laws/statute/90t21 section 9(1)]. <b><u>[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;</b></u> ::*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. <b><u>[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</b></u> ==[https://caselaw.ninja/img_auth.php/4/41/Divitcos_v_CompCorp_Life_Insurance_Co.pdf Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division)]== 48. When Diane and Steve Divitcos re-entered the building and changed the locks after they had been evicted pursuant to a writ of possession, they were clearly doing an illegal act. One of the main public policies manifested in Part IV of the Landlord and Tenant Act is a legislative determination not to have the obtaining of possession of leased residential premises made the subject of self-help remedies by either landlords or tenants. 51. The Act reflects the expectation that in the usual case it would be the landlord that would be seeking to recover possession. However, as decided by Hayes J. in Foster v. Lewkowizc, supra , a tenant may seek a writ of possession - and it would follow that in the case of the tenant as much as in the case of the landlord that is the only lawful way to recover possession. 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. <b><u>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.</b></u> The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. <b><u>I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence.</b></u> 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 [https://www.ontario.ca/laws/regulation/900194 rule 60.10(2)] of the [https://www.ontario.ca/laws/regulation/900194 Rules of Civil Procedure] which states: ::<i><b><u>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.</i></b></u> 75 It is submitted on behalf of the respondent mortgagee that the premises here in question, while clearly residential in the sense that they are not used for any other purpose, are excluded from the operation of Part IV of the Landlord and Tenant Act by virtue of subdiv.1(e) of that Act, which excludes from the definition of "residential premises" in that Act (which definition and exclusion are adopted and made applicable to Part V of the Mortgages Act ) premises described as follows: ::<i>(e) premises 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, where the owner, spouse, child or parent lives in the building in which the premises are located,</i> I observe that the words "required to share ... a kitchen" require some interpretation. In my view, they mean that the only kitchen available for use by an occupant is one which another occupant is also entitled to use. An applicant may of course avoid sharing by simply not using the kitchen facilities. There is no mandatory requirement that he use them. 77. Each of Steve and Diane is a child of the owners, and the owners live in the building. The premises are therefore premises described in subdiv.1(e), and therefore are excluded from the term "residential premises". It follows that the provisions of the Mortgages Act and the Landlord and Tenant Act , which are applicable only to residential tenancies as defined, do not apply to the premises here in question. 78. Although the argument is admittedly quite technical I find it to be technically correct. And I find that the equities in this case so favour the respondents that I have no reluctance to accept the technical argument. I accept it as a second ground or reason for the dismissal of the motion. ==[http://canlii.ca/t/fvn6g Rossiter et al v. Swartz and Swartz, 2013 ONSC 159 (CanLII)]== V. ANALYSIS OF CLAIM BASED ON THE DOCTRINE OF OCCUPATION RENT [40] Occupation rent is an equitable remedy which may be claimed in circumstances where a person is in occupation of the land of another. The principle of occupation rent has been described by the Ontario Court of Appeal in [http://canlii.ca/t/gw6bt Young v. Bank of Nova Scotia] in the following terms: ::<b><u>If a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of this land.</b></u> [41] The principle of occupation rent is founded on the presumption that the parties have agreed that the occupier will pay a reasonable amount of compensation for their use of the land. This presumption can be rebutted by evidence indicating that the parties intended that the occupier use the land without an expectation of providing compensation.[27] ==[http://canlii.ca/t/g1cmx Central Guaranty Trust Co. v. McRae, 1993 CanLII 8542 (ON SC)]== 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 <b><u>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.).</b></u> <b><u>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.</b></u> 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. ==[http://canlii.ca/t/gt333 Toronto-Dominion Bank v. Hosein, 2016 ONCA 628 (CanLII)]== [25] The respondent relies on this court’s decision in [http://canlii.ca/t/1k8v3 Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383], to support the application judge’s determination that the jurisdiction of the Superior Court is ousted by the provisions of the RTA. At issue in Fraser was an order of the Superior Court in a nuisance action. The Superior Court ordered the tenants to vacate the premises as a method of enforcing an earlier order restraining the landlord from operating an illegal rooming house. This court held that the tenancies could only be terminated by the Board pursuant to the predecessor statute to the RTA. [26] Fraser is not applicable here. In Fraser and in [http://canlii.ca/t/fpn5v Parker v. Yundt, 2012 ONSC 244 (CanLII)], the applicants sought to terminate existing tenancies. The tenancy agreements were presumed to be valid. [27] In this case, the appellant’s Notice of Application before the Superior Court was “for an order setting aside an alleged tenancy agreement” made between Boodhoo and Hosein. The application did not seek to terminate the tenancy. <b>Fraser holds that the inherent jurisdiction of the courts to make an order evicting a residential tenant is ousted by the RTA. Here, <u>jurisdiction is specifically given to the Superior Court by s. 52 of the MA not to terminate but to set aside a tenancy agreement when it was entered into by a mortgagor under certain conditions.</u> The jurisdiction of the Superior Court to apply s. 52 of the MA has also been recognized by the Board: File Number: [http://canlii.ca/t/gs8hv TET-66943-16, 2016 CanLII 38767, at paras. 14 and 18]; File No. CEL-02248, 2007 LNONLTB 27, at para. 47.</b> ==[http://canlii.ca/t/1mjl9 Re Residential Tenancies Act, 1981 CanLII 24 (SCC), (1981) 1 SCR 714]== DICKSON J.—The resolution of disputes between landlords and tenants has long been a central preoccupation of the common law courts. As early as 1587, Lord Coke observed that the law of landlord and tenant was vital since, “for the most part, every man is a lessor or a lessee”. (Walker’s Case[2] at p. 680.) ==[http://canlii.ca/t/h3j4z 772067 Ontario Limited v Victoria Strong Manufacturing, 2017 ONSC 2719 (CanLII)]== '''Issues for Determination [6] The parties agree that the following six issues are to be determined on this motion: ::1. Is it appropriate to determine the issues in both the main action and counterclaim by way of summary judgment? ::2. Did the plaintiff have a right of re-entry on October 3, 2014 for non-performance of covenants? ::3. Did the plaintiff have a right of re-entry on October 3, 2014 for non-payment of rent? ::4. If the plaintiff exercised a valid right of re-entry on October 3, 2014 and thereby terminated the lease agreement, did the plaintiff nonetheless enter into a new agreement with the defendant to reinstate the old lease? ::5. If the plaintiff exercised a valid right of re-entry on October 3, 2014 and did not agree to reinstate the old lease, what damages, if any, are owing by the defendant? ::6. If the plaintiff did not have a valid right of re-entry or if the plaintiff violated the agreement to reinstate the old lease, what damages, if any, are owing to the defendant? [30] The mandatory nature of s. 19(2), notwithstanding an agreement to the contrary, is supported by the important public policy purpose it serves. Section 19(2) serves to protect tenants and in this spirit courts have required strict compliance with its requirements. As the Court of Appeal states in 780046 Ontario at para. 23: ::Notice is a protection to the tenant. Its purpose is to warn the tenant that its leasehold interest is at risk and to give the tenant an opportunity to preserve that interest by remedying the breaches complained of, and, where necessary, by compensating the landlord. Because courts have not looked favorably upon the remedies of re-entry, forfeiture and termination they have insisted that landlords strictly comply with the notice requirements in s. 19(2) of the Act. <b><u>[31] As a result, I find that the plaintiff had no right to re-enter pursuant to the purported breaches of covenant given that the requirements of s. 19(2) were not satisfied.</b></u> [36] With respect, I do not accept this submission. Section 18(1) of the CTA clearly provides that unless otherwise agreed, the plaintiff “may at any time” re-enter a premise if rent has been outstanding for more than 15 days. Notably, it does not require any notice. Section 19(2) requires notice prior to re-entry for breaches of covenant, but that section explicitly provides that it applies to breaches “other than a proviso in respect of the payment of rent”. [41] I accept the plaintiff’s submission. The defendant’s contention that the deposits are due under previous lease agreements is at odds with its admission that the 2012 lease superseded and consolidated all previous leases. <b><u>I note that in Nationwide Parking Inc. v. Daulat Investments Inc, 1990 CarswellOnt 2199 (H.C.), the court held that non-payment of a security deposit is not a default on the payment of rent and must be treated as a breach of covenant.</b></u> However, the terms of that lease agreement were not made clear by the court, nor has it been relied upon subsequently for the proposition that a deposit can never be considered rent. I therefore conclude that the outstanding deposits were consolidated into the 2012 lease and are to be considered rent. ==[http://canlii.ca/t/htrqk Toronto Community Housing v. Bryant Didier, 2018 ONSC 5158 (CanLII)]== [22] In cases where there is no written lease and where the parties dispute the type of tenancy that was agreed upon, the onus is on each party to establish, on a balance of probabilities, their respective positions concerning the term of the tenancy. In this regard, the Court must look at the surrounding circumstances, including the actions of the parties, to determine what the parties intended their contractual relationship to be: Manitouwadge General Hospital v. Kudlak, 2000 CarswellOnt 3243 (Ont. S.C.J.), at para. 28. All matters considered, in assessment of all evidence regarding Mr. Didier’s rental history, I have determined that Mr. Didier’s rental of Unit B3 is a monthly tenancy. I do not find in the current record any agreement on implied terms between the parties pertaining to the rental of Unit B3. [28] Section 2 of the Commercial Tenancies Act restricts its application to tenancies that are not residential in nature: “This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act applies.” The Landlord and Tenant Board found that the Residential Tenancies Act does not apply to Mr. Didier’s tenancy. I find that Mr. Didier’s rental of Unit B3 is governed by the Commercial Tenancies Act. <b><u>[33] Under the Commercial Tenancies Act, there is no requirement that the Landlord state a reason for termination in a monthly tenancy. Absent any term in a lease requiring the existence of any condition as justification for the termination of a commercial month-to-month rental by either party, 30 days’ notice is sufficient to terminate a lease under s.28 of the Commercial Tenancies Act: Downtown Pallets Ltd. v. Ontario Food Terminal Board, 2013 ONSC 502, 30 R.P.R. (5th) 153, at paras. 17‑18.</b></u> [34] Section 74(1) of the Commercial Tenancies Act provides: ::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 ben determined by any other act <b><u>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.</b></u> [35] Mr. Didier has failed to vacate his occupation of Unit B3 after the TCHC served a valid Notice under section 28 of the Commercial Tenancies Act. The TCHC has thereby established an entitlement to the relief sought in this Application. ==[http://canlii.ca/t/fpdp1 Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII)]== '''Were the Eviction and Distraint Legal? <b><u>[102] The plaintiffs seek damages for unlawful eviction from their</b></u> business and <b><u>residential premises</b></u>, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, <b><u>as well as punitive damages for the defendants’ malicious and high-handed conduct.</b></u> '''The Eviction [103] The plaintiffs received their first Notice of Eviction for failure to sign a lease and unspecified arrears of rent of “more that $3000” on July 28, 2009, followed by a Demolition Permit on September 8, 2009, which Chris McGowan testified was used as an “intimidation tactic” to force the plaintiffs to either sign their lease, without option to purchase, or to leave the premises. In neither case, and at no time after June 5, had the defendants attempted to speak with the plaintiffs. Nor had they given the plaintiffs any warning. I find these tactics to be unbusiness-like, unprofessional, high-handed and reprehensible. [104] On September 22, the defendants issued a final Eviction Notice, again without any prior communication or attempt to discuss issues or concerns. They changed the locks to the business and residential property and, further, distrained the plaintiffs’ business and personal assets. [108] While the defendants made it difficult after June 5 for the plaintiffs to communicate with them directly, the problems, and emergency repairs continued in July and August, with significant amounts expended by the plaintiffs to remedy the problems. An accounting was provided to the defendants on July 28 which calculations showed that the plaintiffs had spent more than they owed the defendants. The defendants never provided any response or alternate calculations to the plaintiffs. <b><u>I find that the defendants conduct in cashing the cheques for June and in remaining silent regarding the deductions made constitutes waiver and estoppel from thereafter exercising their right of forfeiture under the lease.</b></u> In arriving at this conclusion, I have considered the cases of Fitkid (York) Inc. v. 1277633 Ontario Ltd., 2002 Carswell Ont. 3373 (Ont. S.C.); Chan v. Lorman Developments Ltd., (2007) Carswell Sask 227 (Sask QB), and 140231 Inc. v. Computer Mind Inc., [2001] O.J. No. 1679 (Ont. SCJ). <b><u>[116] The right of distraint (also known as distress) is a common law right available to landlords for recovery of arrears of rent under a lease. It allows landlords to seize goods and chattels on the leased land in question and owned by the tenant. The remedies of forfeiture and distress are mutually exclusive at law and, therefore, the landlord must choose between the right of forfeiture or the right of distraint.</b></u> Where the landlord elects forfeiture, a simultaneous distress is illegal and will result in the landlord being liable to the tenant for the full extent of the tenant’s damages: See: Falwyn Investors Group Ltd. v. G.P.M. Real Property (6) Ltd., [1998] O.J. No. 5258 (Gen. Div.). <b><u>[118] The law is clear that a landlord cannot both evict and distrain,</b></u> which the defendants did here: Mundell v. 796586 Ontario Ltd. (1996) Carswell Ont. 2620. I have found the eviction to be unlawful, and find the distraint to also be unlawful. ==[http://canlii.ca/t/j47sx YMH v YWCA, 2019 CanLII 121436 (NWT RO)]== 12. I understand that Northview took action by giving the Landlord an eviction notice on September 10, 2019, ending the contract for the rental premises effective immediately and requiring the Landlord to have the premises vacated. The Landlord told the Tenant to vacate the premises, and then on September 12, 2019, Northview changed the locks to the premises, prohibiting the Tenant’s return. Sometime over the next few days the Tenant was granted access to the premises during daytime hours only, and then started staying there again on September 18, 2019. <b><u>The Tenant’s children returned to the premises September 20, 2019. On October 2, 2019, the RCMP forcibly entered the premises and removed the Tenant and his children, returning possession to Northview. Under what authority the RCMP conducted this eviction was not established at hearing – no evidence was presented of either an eviction order or a writ of possession issued by the Supreme Court. Neither was an application to a rental officer made by the Landlord seeking termination of the tenancy agreement and eviction.</b></u> 19. The Landlord did not take advantage of any of the above options provided for under the Act. Consequently, I am satisfied the tenancy agreement was not terminated in accordance with the Act and the Tenant was improperly evicted from the rental premises. 20. Subsection 25(1) of the Act prohibits the alteration of any locking system giving entry to the rental premises except by mutual consent. Subsection 34(1) of the Act prohibits the Landlord from disturbing a Tenant’s possession of the rental premises. ==[http://canlii.ca/t/gt6wx SOT-66425-16 (Re), 2016 CanLII 57313 (ON LTB)]== 5. The tenancy began in 2013. At that time, a written rental agreement was entered into by the Respondent and AE. AE is the son of EE and IE. The rental agreement listed AE as "Leaseholder/Occupant" and IE as "Occupant." It makes no mention of EE. 7. The Respondent's position is that simply accepting EE's rent payments does not make him a tenant. The Respondent had a tenancy with AE, and as long as his rent was being paid, they did not care who was paying it. Ultimately, the Respondent's position was that EE is a mere occupant. 8. EE argued that by paying rent and residing in the rental unit, he should be considered a tenant as it is defined by section 2(1) of the Act, particularly as “occupant” is not defined by the Act. 9. Section 2(1) of the Act defines “tenant,” as “includ(ing) a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives.” 10. As the Divisional Court stated in its reasons for remitting this application back to the Board for a new hearing, the Court of Appeal has recognized, in [http://canlii.ca/t/1cx63 Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority, 2002 CanLII 41961 (ON CA)], that the Act should be interpreted with an "expansive and liberal approach," and with a "tenant protection focus." 11. However, I am also mindful of the Divisional Court's pronouncement in [https://caselaw.ninja/img_auth.php/0/01/Jemiola_v_Firchuk.pdf Jemiola v. Firchuk, (2005) O.J. No. 6085 (Div. Ct.)] which stated that while “tenant” should be broadly and liberally construed, it should also be recognized that, ::<i>“… the legislation does not prohibit tenants from having roommates, family and friends living with them. The Member found, correctly in our view, that this does not necessarily confer on them the status of tenant.”</i> 12. Further, while <u>'''EE is correct in submitting that “occupant” is not defined within the Act, this does not mean that there is no such thing as a non-tenant “occupant” of a rental unit for the purposes of the Act'''</u>. It is recognized in various provisions of the Act that there may be occupants that are not tenants. One need only look at a number of provisions in the Act referring to “occupants,” and "other members of (a tenants') household," including: ::- Section 22, which states that landlords may not interfere with the reasonable enjoyment of rental units by a tenant or “members of his or her household; ::- Section 60, which allows landlords to apply to terminate a tenancy if a tenant or “other members of his or her household,” misrepresent their income; ::- Section 61, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit commits an illegal act…;” ::- Section 62, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit…” wilfully or negligently causes undue damage; ::- Section 63, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” wilfully causes undue damage or uses the rental unit in a manner inconsistent with use as a residential premises; ::- Sections 64 and 65, which allow landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” substantially interferes with reasonable enjoyment of a residential complex by other tenants or a landlord, or a landlord’s lawful rights, privileges or interests; and ::- Section 66, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” seriously impairs the safety of any person in the residential complex. 13. Just as the Act recognizes that persons other than tenants may reside in a rental unit, <u>'''it also recognizes that persons other than tenants may pay rent,''</u>' as section 2(1) of the Act defines “rent” as “includ(ing) the amount of any consideration paid or given or required to be '''<u>paid or given by or on behalf of a tenant</u> to a landlord or the landlord’s agent for the right to occupy a rental unit.'''..” [emphasis added] 15. It is worth noting that implied tenancies usually arose where, before the continuation of expired leases on a month to month basis was made automatic by statute, tenants continued to occupy rental units and continued to pay rent after fixed term tenancies had ended. However, implied tenancies could also arise where tenants moved out or died, but other persons paid rent to landlords for the right to remain in rental units. 16. In my view, consideration of the evidence in its full context in the current case did not support the creation of an implied tenancy between EE and the Respondent. The evidence did not show that EE paid rent for continuation of a lapsed or terminated tenancy. He testified that he has lived in the rental unit, and paid the rent, since the commencement of his son's tenancy, which is still in effect. The tenancy with AE has never lapsed or terminated. The Landlord's staff members have approached EE about being added in writing as an occupant, not a tenant. These facts comfortably support a conclusion that EE has lived in the rental unit as an occupant by benefit of his son's tenancy, that he has paid rent on behalf of his son, and that he has never become a tenant himself.

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