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| [[Category:Landlord Tenant]]
| | https://caselaw.ninja/index.php/Non-Application_of_the_RTA_(5.(i)) |
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| See Also:
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| * [[Hotel Room (Rental Unit)]]
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| * [[Trespass to Property (LTB)]]
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| * [[Shared Accommodations (With-Landlord)]]
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| ==[https://www.ontario.ca/laws/statute/06r17 Residential Tenancies Act, 2006, S.O. 2006, c. 17]==
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| Exemptions from Act<br>
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| 5 This Act does not apply with respect to,
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| ::(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;
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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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| ::(n) any other prescribed class of accommodation.
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| ==[http://canlii.ca/t/gt6wx SOT-66425-16 (Re), 2016 CanLII 57313 (ON LTB)]==
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| 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.
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| 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.
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| 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.
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| 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.”
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| 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."
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| 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,
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| ::<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>
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| 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:
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| ::- 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;
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| ::- 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;
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| ::- 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…;”
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| ::- 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;
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| ::- 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;
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| ::- 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
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| ::- 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.
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| 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]
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| 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.
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| 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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| ==[http://canlii.ca/t/j47sx YMH v YWCA, 2019 CanLII 121436 (NWT RO)]==
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| 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>
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| ==[http://canlii.ca/t/j4vgz Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)]==
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| [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".
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| [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…"
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| [70] The Sheriff does not have the discretion to decide not to enforce the eviction orders.
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| [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:
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| ::<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>
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| [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.
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