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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 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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| ::(a) The Board’s determinations that 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 who lived with the appellant when he entered into the tenancy agreement, are questions of fact that are not subject to appeal;
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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 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 Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), the Divisional Court found that 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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| 29. Thus, I must consider whether or not the Landlord actually lived in the rental unit at the time the tenancy began.
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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 section 202 of the Act. In making findings on an application, 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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