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| [[Category:Landlord Tenant]]
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| ==[http://canlii.ca/t/29wbs Cowie v. Bindlish, 2010 ONSC 2628 (CanLII)]==
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| [1] Judgment is to issue allowing this appeal, setting aside the orders in appeal and remitting the application of the tenant to the Landlord and Tenant Board (“the board”) with the opinion of this court for a new hearing before a different member of the board pursuant to section 210 (4) (b) of the [https://www.ontario.ca/laws/statute/06r17#BK292 Residential Tenancies Act, 2006, S.O. c. 17] (“the Act”). It is our opinion that section 5 (i) of the Act does not exempt the living accommodation which is the subject of the application of the tenant from the application of the Act. The parties may make written submissions with respect to costs by exchanging copies and delivering the submissions to the office of this court at Brampton within one month.
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| [3] The central issue in this appeal is whether the board had jurisdiction to consider the appellant’s first application. The board held that it did not and its decision was subsequently confirmed by the board, composed of a different member, in dismissing the appellant’s application for a review. This issue requires an interpretation of section 5 (i) of the Act which reads, in part, as follows;
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| 5. This Act does not apply with respect to,
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| ::(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.
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| [4] The appellant does not dispute that living accommodation which is the subject of this appeal falls within the scope of section 5 (i). However, it is his position that the respondent, his landlord, did not “live in the building in which the living accommodation is located” at the time that he and the respondent entered into their tenancy agreement and, therefore, that the Act does apply to the room which he rented.
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| [16] It is my respectful view that neither view was a sufficient basis on which the board was entitled to decline jurisdiction. <b><u>Both board members erred in law, albeit differently, in their respective interpretation of section 5 (i) of the Act and we must now interfere. The section explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.</b></u>
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| [17] Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.
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| [18] Any such interpretation would also, in my view, be inconsistent with the objectives of the Act as reflected in sections 1 and 3 (1) of the Act.
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| Section 3 (1) of the Act sets out the application of the Act. It reads as follows;
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| ::3. (1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
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| Section 1 of the Act sets out the purposes of the Act. It reads as follows;
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| ::The purposes of the Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.
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| [19] Other grounds of appeal relating to the conduct of the board hearings including the findings made and the sufficiency of the reasons given were also briefly argued by counsel for the appellant but the respondent, who was self-represented, was understandably unable to make any submissions in response. Although we recognize that there may well be merit in these grounds too, we consider that in these circumstances it is desirable that we confine our judgment to the jurisdictional issue.
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| ==[http://canlii.ca/t/gw54r Quin v McCaughey, 2016 ONSC 7921 (CanLII)]==
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| <b><u>[18] The appellant claims that the Board’s determination that the Act does not apply to this case was unreasonable. He claims that the nature of the tenancy can change over time and the word “child” in the exclusion in section 5(i) of the Act does not include a situation where the tenant is married to the “child” of the landlord. He claims that the exemption only applies to rooming houses.</b></u>
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| [19] The words of the legislation are to be read in context, in their ordinary sense, in a manner consistent with the objectives of the Act and the intention of the legislators. (See [http://canlii.ca/t/1fqwt Rizzo v. Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), 1998 CarswellOnt 1 (SCC) at para 52]).
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| [20] The Board member and the Vice Chair determined that section 5(i) of the Act governed the tenancy at the time this tenancy agreement was entered into. At the time, the appellant was cohabiting with the respondent’s daughter. The respondent landlady never agreed to a tenancy agreement within the meaning of the Act. The Board therefore determined that the appellant’s living accommodation was within the exemption in section 5(i) of the Act.
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| <b><u>[21] The decisions of the Board are reasonable for the following reasons:</b></u>
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| ::<b>(a) The Board’s determinations that <u>there is only one kitchen and bathroom in the unit and that the appellant was therefore required to share them with the respondent’s daughter</u> who lived with the appellant when he entered into the tenancy agreement, are questions of fact that are not subject to appeal;</b>
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| ::(b) As the Board found, contrary to the assertion of the appellant, the plain and ordinary meaning of the word “child” in section 5(i) of the Act does not exclude a situation where the tenant is married to the “child” of the landlord or this type of tenancy;
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| ::(c) There is no authority for the appellant’s proposition that the legislators intended to treat spouses differently from others subject to the exemption in section 5(i) of the Act;
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| ::<b><u>(d) The finding that the determination is made in this case at the time the agreement is entered into, is consistent with the decisions in Cowie v. Bindlish, paras 4, 16 and 17 and Hooey v. Bomze, 1993 CarswellOntario 2047 (Gen.Div). Those decisions make it clear that one party alone cannot change the legal nature of the relationship. This means that the appellant could not decide that he could rely on the protections in the Act just because the landlady’s daughter Meghan was no longer sleeping in the unit; and
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| ::(e) To enable a party to opt in and out of the exemption is not reasonable as it would allow the appellant to unilaterally revise the terms of the tenancy agreement.</b></u>
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| [22] For these reasons, the Appeal is dismissed.
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| ==[http://canlii.ca/t/hs1dr TET-87517-18-IN (Re), 2018 CanLII 42846 (ON LTB)]==
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| 1. At the beginning of the hearing the Landlord raised a preliminary issue with respect to the Board’s jurisdiction. The Landlord contends that the [https://www.ontario.ca/laws/statute/06r17#BK292 Residential Tenancies Act 2006] (the ‘Act’) does not apply to the tenancy agreement between the parties as the Landlord lived in the rental unit and shared a washroom and a kitchen with the Tenant.
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| 2. Subsection 5(i) of the Act stipulates that the Act does not apply to living accommodation where the occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent, and where the owner, spouse, child or parent lives in the building in which the accommodation is located (emphasis added). Both prongs of the test must be satisfied for the tenancy to be exempt.
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| 3. The Tenant disputes that the Landlord ever shared a kitchen or washroom with the Tenant and maintains that the Landlord did not live in the rental unit at all. The Tenant stated that the Landlord hung his clothes in the bathroom in order to stage his presence and that he lived elsewhere returning to the rental unit only to deliver mail and to collect the rent.
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| 28. However, in the decision [http://canlii.ca/t/29wbs Cowie v. Bindlish, 2010 ONSC 2628 (CanLII)], the Divisional Court found that [https://www.ontario.ca/laws/statute/06r17#BK292 section 5(i)] of the RTA:
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| ::explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.
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| <b><u>29. Thus, I must consider whether or not the Landlord actually lived in the rental unit at the time the tenancy began.</b></u>
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| 30. The necessity of looking at the actual living circumstances at the beginning of the tenancy also arises as a result of the application of [https://www.ontario.ca/laws/statute/06r17#BK292 section 202] of the Act. In making findings on an application, [https://www.ontario.ca/laws/statute/06r17#BK292 section 202] of the Act empowers the panel to determine the real substance of all transactions and activities pertaining to a rental unit; with respect to this tenancy.
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| 31. The effect of [https://www.ontario.ca/laws/statute/06r17#BK292 section 202(1)] was considered by the Court of Appeal for Ontario in [http://canlii.ca/t/2d05l Slapsys (c.o.b. 1406393 Ontario Inc.) v. Abrams 2010 ONCA 676 (CanLII)]. It was determined that the purpose of [https://www.ontario.ca/laws/statute/06r17#BK292 section 202(1)] was both to enable and to require the Board to determine the true substance of the transaction, activities and good faith of the parties when making findings on an application.
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| <b><u>32. In this case the question is whether the Landlord has staged his living situation in an attempt to evade the Act or did he genuinely reside in the apartment.
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| 33. The Landlord likely understood the advantage he derives where the kitchen and/or bathroom facilities are shared with the Landlord. If I believe that the Landlord has not acted in good faith and has staged the appearance of a shared tenancy in order escape the jurisdiction of the Residential Tenancies Act, 2006, this is inconsistent with the legislative intent of the exemption under section 5(i) in conjunction with [https://www.ontario.ca/laws/statute/06r17#BK292 section 202].</b></u>
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| 34. As a result, the Landlord did not meet his onus of establishing on a balance of probabilities that he shared a bathroom and/or kitchen with the Tenant and has not established that the tenancy falls under section [https://www.ontario.ca/laws/statute/06r17#BK5 5(i) of the Residential Tenancies Act, 2006]
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| 35. This order contains all of the reasons for the decision within it. No further reasons will be issued.
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| ==[http://canlii.ca/t/hv7qb SWL-17145-18 (Re), 2018 CanLII 88667 (ON LTB)]==
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| 2. In the Residential Tenancies Act, 2006 (‘the Act’), the definition of ‘tenant’ in section 2(1) includes a person who pays rent in return for the right to occupy a rental unit, but does not include a person who has the right to occupy a rental unit by virtue of being a co-owner of the property.
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| 9. In [http://canlii.ca/t/hqp5 Warraich v. Choudhry, 2018 ONSC 1267], the Courts clarified that the Board cannot determine equitable ownership as this falls exclusively within the Superior Court’s jurisdiction. To determine if someone is a “co-owner,” the Board may only consider whether that person has legal ownership. The Courts also set out that there is no basis for indefinitely deferring a Board proceeding merely because an equitable claim is being pursued at the Superior Court. In [http://canlii.ca/t/hqp59 Warraich], the Court found that the Board had jurisdiction to hear the L1 application before it despite the fact that the property was subject to a dispute in Superior Court, and that there was no error in the Board proceeding before the dispute was resolved at Superior Court. [http://canlii.ca/t/hqp59 Warraich] is binding upon me.
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| 10. In this case, based on the testimony and documents before me, I find that KW is not an “owner” or a “co-owner” of the property as that term of the Act was defined by the Court in [http://canlii.ca/t/hqp59 Warraich] because he is not on title as a legal owner. KW is free to pursue his equitable claim in Superior Court but such a proceeding does not affect this Board’s exclusive jurisdiction over residential landlord-tenant disputes.
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| <b><u>16. This is a rather unique tenancy situation. The Landlord and the Tenant lived together for approximately four years, sharing a kitchen and bathroom, until the Landlord moved into a new principle residence in the winter of 2017. Subsection 5(i) of the Act exempts living accommodations in which the occupant is required to share a bathroom or kitchen facility with the owner. In this case, the rental unit was exempt from the Act from the commencement of this tenancy in 2014.</b></u>
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| 17. In [http://canlii.ca/t/29wbs Cowie v. Bindlish, 2010 ONSC 2628 (CanLII)], the Courts set out that the Board must have regard to the living circumstances at the commencement of the tenancy, and neither party can unilaterally change the terms of the tenancy. One might interpret that to mean since the Act did not apply to this tenancy when it began in 2014, the Act can never apply to this tenancy, even after the conditions that exempted the accommodations from the Act (the sharing of facilities) ceased to exist.
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| 18. However, a careful reading of [http://canlii.ca/t/29wbs Cowie] reveals that the intent behind the Court’s decision was to prevent parties from making unilateral decisions that would cause the Act to cease to apply. The decision references the purposes of the Act, as set out in subsection 1 which include providing protection for residential tenants from unlawful evictions, and balancing the rights and responsibilities of residential landlords and tenants. In addition, the decision references subsection 3(1) of the Act which sets out that the Act “applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.”
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| 19. The [http://canlii.ca/t/29wbs Cowie] decision goes on to state at para. 17:
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| ::<i>“Any interpretation of section 5 (i) of the Act that would … unilaterally cause the board to be deprived of its jurisdiction … would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made”</i>
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| <b><u>20. In this case, when the Landlord moved out, I find he made a unilateral decision that caused the Act to apply after he vacated. I do not view this to be an “unwarranted” revision of the tenancy that is unfair to the Tenant; rather it is a reasonable revision of the tenancy agreement reflecting the reality of the Tenant’s changed living arrangements. As a result of the Landlord’s decision to vacate the Tenant, gained the legal protection offered by the Act.</b></u>
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| 21. The Landlord and his spouse, expecting their first baby, purchased a new primary residence and permanently vacated the rental unit in order to permanently move into their family home. This action caused the exemption set out in subsection 5(i) to cease to apply as the Tenant was no longer required to share a kitchen or bathroom with the owner or a family member of the owner. Once the exemption in subsection 5(i) of the Act ceased to apply, the tenancy became subject to the Act in accordance with subsection 3(1) of the Act.
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| <b><u>22. I must determine exactly when the Act began to apply to this tenancy. The Landlord testified that he moved out of the rental unit in January 2018, while the Tenant insisted he moved out in December 2017. With no other supporting evidence, I find the Landlord vacated on or before December 31, 2017, as the Landlord testified he turned the gas to the stove off sometime before January 1, 2018.
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| 23. Therefore, I find the Act applies to this tenancy as of January 1, 2018, and the Board has jurisdiction to hear and make determinations on the Landlord’s application for rent arrears.</b></u>
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| ==[http://canlii.ca/t/hwqcs TST-92268-18 (Re), 2018 CanLII 123244 (ON LTB)]==
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| <b><u>12. EX brought a preliminary motion as to whether the Residential Tenancies Act, 2006 (the ‘Act’) should apply in a situation where the Landlord’s child is living on the property and sharing a bathroom and kitchen with the Tenants. Ordinarily in these circumstances section 5(i) of the Act would apply to remove the tenancy from the jurisdiction of the Board. However, the evidence demonstrates that it was never disclosed to the Tenants prior to their making their tenancy agreement and moving in to the rental unit that the daughter of the Landlords was resident in the unit.</b></u> There were a number of opportunities to do so: the text exchange about a girl residing in the living room that would start in April; the rental agreements provided by EX and signed by the Tenants; advising the Tenants at any time before they moved in on January 5, 2018 that EX was a resident. Even when they moved in, the Tenants were unaware that she had possessions there and was apparently resident.
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| 13. I accept the testimony of the Tenants on this issue. <b><u>I find that EX did not disclose at any point when the tenancy agreement was entered into that she, as a child of the Landlord, was resident in the unit.</b></u> The Divisional Court case of [http://canlii.ca/t/29wbs Cowrie v. Bindlish, 2010 ONSC 2628] says:
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| ::<i>The section [section 5(i)] explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.
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| ::Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.
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| ::Any such interpretation would also, in my view, be inconsistent with the objectives of the Act as reflected in sections 1 and 3 (1) of the Act.</i>
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| <b><u>14. I find that in the application of Cowrie to the circumstances, that neither EX nor the owner Landlord provided any information to the Tenants on which they could have been advised that they were sharing the rental unit with an owner and that the Act would not apply to their tenancy. I find that the Act applies to this tenancy.</b></u>
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| ==[http://canlii.ca/t/j1kb8 Azevedo v. Lograsso, 2019 ONSC 4267 (CanLII)]==
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| [21] Section 24(1)(b) of the FLA authorizes the Court to “direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs”.
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| [22] Section 18(1) of the FLA deems a property to be a matrimonial home in particular circumstances where one of the spouses has an “interest” in the property. Neither Nancy nor Mario have had any proprietary interest in the property since the sale of the property in 2005. A spouse’s interest in the matrimonial home can only be exercised against the interest of the other spouse: FLA s. 19(2). Since Nancy has no interest in the property, Mario cannot assert an interest under s. 18 of the FLA. Mario cannot assert a FLA claim against Maria and Antonio.
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| [23] Nor are the Respondents tenants under the Residential Tenancies Act, 2006, S.O. 2006, c.17 (RTA). When the “tenancy” first took effect, the Respondents shared a bathroom and kitchen facility with the owners’ daughter, thus bringing the tenancy into the exemption contained in s. 5(i) of the RTA:
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| 5. This Act does not apply with respect to,
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| ::(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
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| ::See: [http://canlii.ca/t/gw54r Quin v McCaughey, 2016 ONSC 7921, at paras. 20 and 21 (Div. Ct.)].
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| <b><u>[24] The Respondents have been given more than reasonable notice to vacate. The Respondents have continued to occupy the property without paying rent or maintenance after having received the Applicants’ notice to vacate over one year ago.
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| Conclusion
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| [25] The Application is granted. This Court orders that:
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| ::(a) The occupancy rights of the Respondents, Mario Lograsso, Joseph Lograsso, Michael Lograsso, and Julian Lograsso in respect of the property known as 33 Solway Avenue, Vaughan, Ontario, if any, have been validly terminated.</b></u>
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| ::(b) The Applicants, Maria Candida Azevedo and Antonio Julio Azevedo are entitled to vacant possession of the property as of July 31, 2019.
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| ::(c) An Order that a Writ of Possession in respect of the property shall issue as of August 1, 2019, to the Sheriff of the Regional Municipality of York.
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| [26] The Applicants are entitled to their costs for today’s proceedings and the January 17, 2019 adjournment, which were reserved for the hearing. The costs of the March 7, 2019 adjournment were ordered on that day.
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| [27] Costs for the January 17, 2019 adjournment are fixed at $200. Costs of the Application are fixed at $7,500. All costs are payable by the Respondents on a joint and several basis, and payable to the Applicants within 30 days.
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| ==[http://canlii.ca/t/27ffl TET-02061 (Re), 2009 CanLII 74523 (ON LTB)]==
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| . Analysis
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| 19. In my view, the phrase “required to share” contained in section 5. i) of the Act lends itself to two possible interpretations. The first interpretation is that an occupant and an owner of a living accommodation may be required to share a kitchen or bathroom because of the available amenities or physical layout of the premises. The second possible interpretation is that an occupant and an owner of a living accommodation may be required to share a kitchen or bathroom because they have agreed to do so. This latter interpretation was adopted by Ontario District Court Judge Clarke in the case of Kutzak v. Gauthier [1988] O.J. No. 1033, a matter decided under a similarly worded exemption clause found in Part IV of the Landlord and Tenant Act R.S.O. 1980 ch. 232. Judge Clarke determined that the fact that there is more than one kitchen or bathroom in a living accommodation is not determinative of the requirement to share issue:
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| ::“…I hold that the phrase “required to share” is wide enough to embrace an occupancy where the occupant is required to share his bathroom or kitchen with the owner even though the owner has separate facilities. That the owner has separate facilities is not determinative. If the Legislature had intended to limit the exclusion to single kitchen and bathroom facilities, it would have expressly said so. I am strengthened in this view by the wording in Section 1(c)(v) which refers not to the bathroom or kitchen facility but to a bathroom or kitchen facility. While this interpretation can lend itself to abuse, the Court will look at the substance, not the formality of the arrangement. In short, the bona fide intention of the parties as gleaned from their words and conduct is critical. Each case will pivot on its own facts.”
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