Defining a Rental Unit

Kong v Hamilton Fire Department, 2016 CanLII 102466 (ON FSC)

27. The criteria for collective decision-making that have been cited in Good v. Waterloo and subsequent cases address the characteristics of a housekeeping unit, which is one of the pre-requisites cited by the Fire Code to identify a dwelling unit. These criteria have included occupants who lease premises as a group, arrange rent as a single amount, have responsibility for selecting replacement tenants in the event of the departure of an individual, determine their own room assignments, pay for utilities independent of the landlord, provide their own furnishings, take responsibility for housekeeping and cleaning, perform as a cohesive group through occupation over lengthy periods of time, store and consume food together and who enter into relationships that extend outside the sharing of accommodation and school activities. The criteria also include the absence of presence and control by the landlord or the landlord’s representative.

List of Other Caees

• ONLTB-TSL-28365-12
• Kritz v City of Guelph, 2016 ONSC 6783 (CanLII)
• Good v. Waterloo (City), 2003 CanLII 14229 (ON SC)

Good v. Waterloo (City), 2004 CanLII 23037 (ON CA)

[3] The motions judge correctly addressed the critical phrase to be interpreted, namely whether the premises in question are a "single housekeeping unit". He used as an important interpretive criterion whether there was collective decision- making sufficient to create a single unit for housekeeping purposes. We agree this is an appropriate criterion.

[4] In this case, there was ample evidence to support his decision that there was sufficient collective decision-making to meet this criterion, including:

(a) how the rent was paid;

(b) the furnishing of the apartment and rooms by the occupants;

(c) payment of the utilities by the occupants;

(d) the assignment of the rooms by the occupants; and

(e) how the housekeeping, or lack of it, was to be done.

[5] The cohesiveness of this unit is further exemplified by the fact that most of the occupants had occupied the premises for lengthy periods of time.

[6] There was also ample evidence on which the motions judge could conclude that this was not a circumstance in which there was exclusive possession of any parts of the unit.

Good v. Waterloo (City), 2003 CanLII 14229 (ON SC)

[23] In my view, the distinguishing characteristic as between a lodging house and a residential unit focuses on the control of the premises. The label currently attached, a lease, is of little importance as such may, in some cases, simply be a method to disguise the true purpose and use.

[24] Control, in a lodging house, is by the owner and the occupants on an individual basis, whereas in a residential unit it is by the group. Accordingly, for a residential unit there must be evidence of collective decision-making regarding the use of the premises.

[28] The existence of locks on bedroom doors is not a factor. The evidence indicates the occupants have used locks without the applicant's permission although I am certain they were aware of their existence. To suggest the use of locks creates exclusive possession contrary to para. 2.4(d) of the by-law is not appropriate. This is not the operative part of para. 2.4(d). Further, the use of locks, in my view, merely denotes privacy and security.

[29] Payment of rent individually is now a common practice in residential leases, particularly involving students. It avoids the need of a communal bank account.

[31] If this was a lodging house, there would be significant control of the premises and the use of the premises by the applicant. There was no evidence to support this argument.

[32] In result, I am satisfied the evidence presented on this application indicates the actual use of the premises is as residential units within the meaning of para. 2.4 of By-law No. 00-140 and, accordingly, the application is granted.