Non-Application of the RTA (Eviction)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	583
Page Categories:	[RTA Exempt Tenancies], [Eviction (Commercial Tenancy)], [Trespass to Property]
Citation:	Non-Application of the RTA (Eviction), CLNP 583, <https://rvt.link/20>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/11/02

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

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.

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, 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, by action only, 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 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

...

18. (1) Every demise, whether by parol or in writing and whenever made, unless it is otherwise agreed, 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, although no formal demand thereof has been made, 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. 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).

(2) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease, other than a proviso in respect of the payment of rent, 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. R.S.O. 1990, c. L.7, s. 19 (2).

20. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, 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).

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74. (1) 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 been determined by any other act 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. R.S.O. 1990, c. L.7, s. 74 (1); 1993, c. 27, Sched.; 2006, c. 19, Sched. C, s. 1 (1)

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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).

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).

2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149

[1] As a courtesy by letter dated June 17, 2019, this court’s Senior Legal Officer alerted the parties to a potential problem regarding this court’s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today’s attendance.

[2] The parties did not do so but argued that this court has jurisdiction to hear this appeal.

[3] We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.

[4] As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.

[5] Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Newman v. Glanville, 2019 ONSC 1040 (CanLII)

[1] Mr. Newman owns a house which is located at 446 Whitmore Avenue in Toronto. Cedric Glanville became a tenant in Mr. Newman’s home in August, 1994. It appears that the two friends never did have a written lease but Mr. Glanville paid his rent weekly and they shared the house for many years.

[2] Mr. Newman now applies under rule 14.05 for an order to evict Mr. Glanville.

[3] Mr. Newman has filed an affidavit in which he indicates that he first gave written notice to Mr. Glanville to leave the house back in 2010. He has repeatedly asked him to leave since then but Mr. Glanville has refused. In the interim, Mr. Glanville has begun to drink heavily and makes no effort to clean up after himself. He has not paid his rent since March 9, 2018 and he refuses to pay his arrears despite repeated requests by Mr. Newman.

[4] Mr. Newman served a written Notice of Eviction on Mr. Glanville on August 8, 2018. The Notice gave Mr. Glanville 60 days to vacate the house. The notice clearly set out the reasons for the eviction including the failure to clean garbage from the home, a refusal to clean the bathroom leaving it in “a disgusting state” and the excessive use of utilities. Notwithstanding a very reasonable notice period, Mr. Newman has not vacated the house.

...

[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

...

[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:

a. order the payment of rent;

b. make a costs order;

c. award damages: and

d. issue injunctive relief to restrain any future breach of the lease agreement.

[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.

[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.

...

[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.

[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.

[14] There will be an order declaring that the lease was terminated on October 8, 2018.

[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019.

Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC)

[1] WILSON J.:—The jury has answered questions and rendered a verdict in this matter in favour of the plaintiff, Michael Davidson. Based upon the answers to the questions asked, counsel concede that there were no reasonable and probable grounds for the plaintiff’s arrest, which was made pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21 (the “Act”). This case raises a novel issue and a more fundamental question, however. Do the arrest provisions of the Act apply in the context of ticket holders with a licence to attend the premises? As this question has not been considered before, counsel asked me to provide reasons to clarify this question. In light of the jury’s answers to the questions asked, however, these comments are obiter.

[2] The plaintiff was arrested by three off-duty Metropolitan Toronto police officers while attending a Blue Jays game at the SkyDome on April 28, 1995. At the time of the arrest the plaintiff was told that he was arrested pursuant to the Act. The plaintiff alleges that the arrest was unlawful, and that the Blue Jays and the Metropolitan Toronto Police Board and the three named police officers involved (the Police) are liable for general, special, aggravated and punitive damages.

...

[13] The decision of Hurst v. Picture Theatres Ltd., [1915] 1 K.B. 1 (C.A.), confirms that the purchaser of a ticket for a seat at the theatre has the right to remain and attend the entire performance. The licence granted by the ticket includes a contract not to arbitrarily revoke the licence during a performance. The right to remain is subject to the implied contractual condition that the patron behaves properly, and complies with the rules of management. It appears clear that a ticket holder for a performance is “acting under a right or authority conferred by law”, and therefore prima facie the trespass provisions of the Act do not apply.

...

[18] Prior to this incident there is no allegation that the plaintiff was misbehaving or not in compliance with the rules of management. He was simply enjoying the ball game with his friend. It is clear that the plaintiff was vocal and rude when he was requested to accompany the Blue Jays personnel and the police to discuss this incident. The plaintiff refused to leave his seat. The issue is who was responsible for escalating the situation—the plaintiff or the Blue Jays’ personnel. I concur with the findings of the jury that it was unfortunate that the Blue Jays personnel escalated the situation to the point of unnecessary conflict culminating in the plaintiff’s arrest.

[19] I conclude after review of the terms of the ticket, and the relevant case law that the defendants are not entitled to revoke at will the licence granted to the plaintiff, and to treat the plaintiff as a trespasser after he refused to voluntarily leave the SkyDome.

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[26] The defendants argue that the licence was not valid until shown. A contractual licence, by definition, is a licence supported by consideration. See Halsbury’s Laws of England, 4th ed., vol. 9 (London: Butterworths, 1974) at 365, citing Hurst, supra. It is clear that the defendants’ argument must fail. The licence conferred by the ticket was created upon payment for the ticket, once consideration was given. If the management chooses not to check tickets, as in this case, the licence still exists. It is usual for management to check tickets to protect their enterprise. Inspecting the ticket is not, however, a condition precedent to the creation of the licence, revocable or otherwise.

...

[37] In what circumstances can a ticket holder be arrested and removed from the premises? I emphasize that although the management cannot rely upon the provisions of the Act to arrest and evict ticket holders, the police and the Blue Jays security personnel are not without remedies. The reasons in this case in no way diminish the police powers to arrest in accordance with law, when the facts and circumstances support the arrest.

[38] If the police believe on reasonable and probable grounds after appropriate investigation that a ticket holder has committed, or is about to commit an indictable offence, then the police can rely upon the powers to arrest stipulated in the Criminal Code, R.S.C. 1985, c. C-46 (see s. 495(1)(a) and R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241). The scope of the appropriate investigation is factually dependent upon the urgency of the situation. The police may also arrest if they encounter a ticket holder actually committing any offence, whether it be an indictable or summary offence (see s. 495(1)(b) and R. v. Biron (1975), 1975 CanLII 13 (SCC), 23 C.C.C. (2d) 513, 59 D.L.R. (3d) 409 (S.C.C.)).

[39] The Act does not apply in the context of ticket holders. Any arrest pursuant to the Act is therefore unlawful. The ticket is a personal revocable licence, and provides the holder a right or authority conferred by law to be present in the premises of the SkyDome. The licence may be revoked by management in accordance with the terms and conditions stipulated on the reverse side of each ticket. If the holder is in breach of any municipal, provincial or federal by-law or regulation he or she may be removed without compensation. In accordance with the common law, the ticket holder has a licence for value that is an enforceable right to attend the event in question until its conclusion, provided the ticket holder behaves properly and complies with the rules of management.

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In case of unlawful arrest

9a. Regardless of your answers to the questions above, assuming Michael Davidson was unlawfully arrested, confined and assaulted, at what amount do you assess Michael Davidson’s damages?

a) General Damages

$ 35,000.00

b) Special Damages

$ 54.00

c) Aggravated Damages

$ 50,000.00

d) Punitive Damages

$ 125,000.00

9b. If you award damages under c) or d), please provide particulars of the conduct leading to the damages.

Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)

[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".

[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 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:

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. 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.

[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.

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, if Mr. Ravnaski is not a tenant of the estate, the estate is entitled to an order for vacant possession of the condominium. 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.

[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.

[17] For the reasons that follow, 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. 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.

[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. 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. 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.

[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.

[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.

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 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 Trespass to Property Act or the 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 Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the 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 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 section 9(1).

[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;

• 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.

[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

[254] In summary, the defendants are liable to Roxanne as follows:

1. Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for the following damages:

a) General damages in the amount of $90,000.00;

b) Damages for loss of earning capacity in the amount of $120,000.00; and

c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84.

2. Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of $7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.

[255] The balance of the claims against the defendants are dismissed.

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. 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. The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence. 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 rule 60.10(2) of the Rules of Civil Procedure which states:

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.

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:

(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 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.

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 Young v. Bank of Nova Scotia in the following terms:

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.

[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]

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

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.).

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. 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.

Toronto-Dominion Bank v. Hosein, 2016 ONCA 628 (CanLII)

[25] The respondent relies on this court’s decision in 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 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. Fraser holds that the inherent jurisdiction of the courts to make an order evicting a residential tenant is ousted by the RTA. Here, 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. The jurisdiction of the Superior Court to apply s. 52 of the MA has also been recognized by the Board: File Number: TET-66943-16, 2016 CanLII 38767, at paras. 14 and 18; File No. CEL-02248, 2007 LNONLTB 27, at para. 47.

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.)

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.

[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.

[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. 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. 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.

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.

[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.

[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 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.

[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.

Sigrist et al. v. Keri McLean et al., 2011 ONSC 7114 (CanLII)

Were the Eviction and Distraint Legal?

[102] The plaintiffs seek damages for unlawful eviction from their business and residential premises, loss of business income resulting from the wrongful eviction and distraint of their business and personal property and assets, as well as punitive damages for the defendants’ malicious and high-handed conduct.

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. 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. 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).

[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. 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.).

[118] The law is clear that a landlord cannot both evict and distrain, 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.

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. 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.

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.

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 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 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,

“… 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.”

12. Further, while 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. 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, 'it also recognizes that persons other than tenants may pay rent,' as section 2(1) of the Act defines “rent” as “includ(ing) the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant 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.

Keith Whitney Homes Society v. Payne, 1992 CanLII 7691 (ON SC)

The residents were required to sign a licensing agreement. The licensing agreement required the resident to pay rent monthly according to his or her financial capability and provided that if the rent was not paid on time this was deemed to be notice by the resident that he or she intended to vacate the premises. The agreement also contained rules of conduct.

The applicant applied for a declaration that its premises were not "residential premises" for the purposes of Part IV of the Landlord and Tenant Act and that the licensing agreement with the respondent was not a tenancy agreement subject to the Act.

Held, the premises were not residential premises; the licensing agreement was a tenancy agreement.

The definition of "residential premises" in the Landlord and Tenant Act excluded "accommodation occupied by a person for rehabilitative or therapeutic purposes or for the purposes of receiving care". The applicant's premises qualified under this exclusion. The accommodation went beyond simple low-income housing. It was not necessary that the occupation of the premises be primarily for the purpose of rehabilitation. If the legislature had intended rehabilitation to be a primary purpose, rather than, for example, a significant purpose, it would have said so.

The parties cannot turn a tenancy into a licence merely by calling it one. In determining whether there was a tenancy, the only intention that is relevant is the intention to grant exclusive possession for a term at a rent. The respondent was given exclusive possession of his room, and together with other members of his apartment, the kitchen, bathroom and living room, for so long as he paid the rent. The respondent was a tenant and the relationship between the parties was that of landlord and tenant.

APPLICATION by a landlord for a declaration that its premises were not "residential premises" for the purposes of Part IV of the Landlord and Tenant Act and that its licensing agreement with the respondent was not a tenancy agreement subject to the Act.

...

The Landlord and Tenant Act [then R.S.O. 1980, c. 232] was amended in June 1987 by Bill 10 [S.O. 1987, c. 23, s. 1] which expanded the definition of "residential premises" to include rooming houses, boarding houses and lodging houses, making them subject to Part IV of the Act. In its report leading up to the introduction of Bill 10 the Ontario Task Force on Roomers, Boarders and Lodgers acknowledged that rooming and boarding houses providing "special needs" people with accommodation in association with "care" should be exempted from the Landlord and Tenant Act and that "care" should be broadly defined. The Task Force specifically recommended that what is now para. ( i) of s. 1 "residential premises" of the Act be added as an exemption to the definition of "residential premises". The report of the Ontario Task Force was filed in evidence in the applicants' book of authorities under Tab 24.

...

I am urged by counsel for the respondent to find that the occupation required by s. 1 "residential premises" ( i) must be primarily for the purpose of rehabilitation. That submission is made because of decisions of the Rent Review Hearings Board of this province pursuant to s. 4(1)( e) of the Residential Rent Regulation Act, R.S.O. 1990, c. R.29. That section is virtually identical to the section of the Landlord and Tenant Act that I have to consider, providing as it does that the Residential Rent Regulation Act does not apply to:

(e) living accommodation occupied by a person for penal, correctional, rehabilitative or therapeutic purposes or for the purpose of receiving care . . .

The Board has held that for the premises to be exempted, the occupation must be primarily for one of the purposes set out in the section.

I am not, of course, bound by a decision of the Rent Review Hearings Board but because of the similarity of the language, I must obviously take that Board's decision into consideration. I am persuaded that if the legislature had intended rehabilitation to be a primary purpose, rather than, for example, a significant purpose, of the accommodation it would have said so as it did in para. (f)(i) of s. 1 "residential premises". In that paragraph an exemption is provided for an educational institution for accommodation provided to its students or staff where "the accommodation is provided primarily to persons under the age of majority" (emphasis added).

Giving the words of para. (i) their natural meaning, I conclude that if the accommodation is occupied for one of the listed purposes, it is within the exclusions to residential premises provided for in s. 1.

Upon the evidence before me, I must conclude that rehabilitation is a purpose of accommodation in the applicant's quarters. The system of involving the residents in the management of their living arrangements, the provision of facilitators/counsellor services on a 24-hour basis, and the recognition that the tenants are persons having special needs, satisfy me that the accommodation provided goes beyond simple low income housing.

The respondent argues that whatever was the intent of the applicant in providing the accommodation, he was not in need of any rehabilitation, and he took the premises because they were affordable.

That may well be the case, but I do not feel that the respondent's individual and subjective view of the reasons for his occupancy can be the indicia to decide whether the applicant's housing operation is or is not subject to the Act.

I accordingly conclude that the applicant's premises are not residential premises within the definition of the Landlord and Tenant Act.

The second issue

The next issue that I must determine is whether the right of occupation given to Mr. Payne is in the nature of a licence or of a tenancy.

The law on the second issue

I have been referred to Donald Lamont's helpful work, Residential Tenancies , 4th ed. (Toronto: Carswell, 1983) where the author discusses at pp. 14-15 the distinction between the relationship of landlord and tenant on the one hand and licensor and licensee on the other. It is suggested that in considering this problem I must have regard to more than whether the resident has exclusive possession of the premises. In this case there is no question that the respondent has exclusive possession of his bedroom subject to the applicant's right to inspect on an annual basis. However, I must also consider whether the applicant is subject to rules restricting his use of the premises and, more fundamentally, the intention of the parties as expressed in the agreement which they have made.

In the case before me, the agreement between the parties which is to be found at Exhibit A to the affidavit of the respondent filed under Tab 8 of the application record is very much more than a lease. As previously noted, it provides for building rules and a host of other regulations, including an extensive section on conflict and dispute resolution.

I conclude that the agreement between the parties was intended to be an agreement for far more than the use by Mr. Payne of a designated room within the applicant's premises. It was an agreement whereby Mr. Payne would be admitted to a community, expected to participate in the decisions of the community and to be governed by its rules. To that extent the applicant and the respondent intended to create an agreement that was personal in nature.

...

The applicant has referred me to the decision of Doyle Co. Ct. J. in Maxwell v. Brown (1982), 1982 CanLII 2161 (ON SC), 35 O.R. (2d) 770 (Ct. Ct.) and the authorities and cases reviewed by him in that decision.

That case concerned whether the Act applied to the relationship between the occupant of a room in a rooming house and the owner of the house. The learned judge relied upon decisions of Lord Denning M.R. in Abbeyfield (Harpenden) Society Ltd. v. Woods , [1968] 1 All E.R. 325, [1968] 1 W.L.R. 374 (C.A.) and Marchant v. Charters , [1977] 3 All E.R. 918, [1977] 1 W.L.R. 1181 (C.A.), to support his conclusion that the occupant in the case before him did not have a sufficient stake in his room to bring him within the Act and was a mere licensee.

The troublesome question of tenancy or licence was reviewed thoroughly by the House of Lords in the recent case of Street v. Mountford, [1985] 2 All E.R. 289, [1985] 2 W.L.R. 877. Lord Templeman, with whose opinion the other members of the panel concurred, suggest that the decisions in Abbeyfield and Marchant were sustainable on the grounds that the occupier was a lodger and did not enjoy exclusive possession. At p. 299 All E.R. His Lordship said:

But in my opinion, in order to ascertain the nature and quality of the occupancy and to see whether the occupier has or has not a stake in the room or only permission for himself personally to occupy, the court must decide whether on its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.

In dealing with the suggestion that it is the intention of the parties that is to be determined, His Lordship said at p. 300:

My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent.

His Lordship was of the opinion that a tenancy arose whenever there was a grant of exclusive possession for a fixed or periodic term at a stated rent.

It was not suggested by the applicant that the respondent was a roomer. He was given exclusive possession of his room, and, together with other members of his "apartment", the kitchen, bathroom and living room, for so long as he paid the stipulated monthly rent.

It is clear that the parties cannot turn a tenancy into a licence merely by calling it one.

In this case, the parties called the agreement a licence, and it contained provisions not found in the usual form of lease. But it did give the respondent exclusive possession of accommodation for a term in return for rent, and applying the test in Street v. Mountford, supra, I find the respondent to be a tenant, and the relationship between the parties to be that of landlord and tenant.

I am prepared to hear submissions as to costs, but in the absence of an appointment being taken out for that purpose within ten days, costs shall be to the applicant.

Order accordingly.