Talk:Possession of the Rental Unit (LTB)

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Date Retrieved:	2025-05-09
CLNP Page ID:	2502
Page Categories:	[Payment of Rent (LTB)‎], [Hearing Process (LTB)], [Contract Law, Leases, & Sub-Letting (LTB)], [Personal Use Application (LTB)], [Interference of Reasonable Enjoyment (LTB)‎]
Citation:	Possession of the Rental Unit (LTB), CLNP 2502, <>, retrieved on 2025-05-09
Editor:	Sharvey
Last Updated:	2025/05/07

TSL-61393-15 (Re), 2015 CanLII 77364 (ON LTB)

19. The issue with respect to “possession” arises because of the wording of s. 87(1) of the Act which says: A landlord may apply to the Board for an order for the payment of arrears of rent if,

(a) the tenant has not paid rent lawfully required under the tenancy agreement; and

(b) the tenant is in possession of the rental unit.

[Emphasis added.]

21. So this concept of being in possession not only dictates whether or not the landlord can apply to the Board for an order requiring the tenant to pay money, but it also is tied to the landlord’s right to an order for daily compensation for use and occupation of a rental unit.

22. So the question is what does the phrase “in possession” mean? The leading and definitive case on the meaning of this phrase in the Act is found in the Court of Appeal’s decision in 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (ON CA) (‘Bakker’). It says (at paragraphs 18 to 22):

[18]…I think the requirement that the tenant be "in possession of the rental unit" at the time of the application reflects a determination that rent arrears disputes can be resolved efficiently and fairly through the Tribunal where the tenant at the time of the application continues to have some connection with the rental unit and, therefore, some relationship with the landlord. Situations where that connection has been severed and the relationship gone are best resolved through the more formal court processes.

[19] Some further assistance in defining "tenant in possession" is found by an examination of s. 86(2). That subsection provides that a landlord may be compensated for "the use and occupation" of a rental unit after notice of termination of the lease. A landlord can only be compensated, however, if the tenant is "in possession of the rental unit" when the landlord's application is made.This suggests that a "tenant in possession" is a person who was using or occupying the rental unit at the time of the application but does not necessarily indicate that the phrase is limited to users and occupiers.

[20] Possession is a difficult concept to define. Both in common and legal parlance, it connotes some form of control over the thing said to be possessed: e.g. D. Dukelow, B. Nuse, The Dictionary of Canadian Law 2nd ed., (1995) Carswell at p. 916; The Shorter Oxford English Dictionary, Vol. II (1973) p. 1635. Clearly, possession in s. 86(1)(b) is not limited to immediate physical control. For example, a tenant who locks up a rental unit and leaves on an extended vacation, continues to exercise sufficient control over that rental unit so as to qualify as a "tenant in possession" for the purposes of s. 86(1)(b). In my view, possession of a rental unit refers to some form of control over that unit as demonstrated by factors such as access to, use of, or occupation of the unit.

[21] There will be cases, although I would not think a great many, where a determination of whether the tenant was "in possession of the rental unit" at the time of the application will raise a difficult issue. In those cases, the Tribunal will have to decide, based on the evidence, whether there is a sufficient connection between the rental unit and the tenant to permit a finding that the tenant was "in possession" of that rental unit.

[22] In this case, there was no connection between Bakker and the rental unit at the time the s. 86 application was commenced. Bakker exercised no control over that unit. He had unequivocally, completely, and permanently vacated the unit more than two years before the application.

[Emphasis added.]

23. I would agree with the Tenant that just because a tenant does not return the keys does not necessarily mean a tenant will be found to be “in possession” for the purposes of the Act. I would also agree that it is not unusual for tenants to move out of a rental unit and leave belongings behind so the fact that some items were left in the rental unit is not determinative either.

24. Rather what Bakker directs the Board to do is to examine the evidence to determine the degree of connection with and the extent of control over the unit that the Tenant exercises.