Defining a Tenancy

SOT-68533-16-RV (Re), 2016 CanLII 44359 (ON LTB)

6. The "English approach," as Vice-Chair Gascoyne described it, was summed up by Lord Neuberger of the Supreme Court of the United Kingdom in Sims v Dacorum Borough Council [2014] UKSC 63, at paragraphs 1 and 2:

1. Where a tenancy of land is held by more than one person, those persons hold the tenancy jointly. In Hammersmith and Fulham LBC v. Monk [1992] AC 478 (“Monk”), the House of Lords unanimously held that, where such a tenancy is a periodic tenancy, which can be brought to an end by a notice to quit, the common law rule is that, in the absence of a contractual term to the contrary, the tenancy will be validly determined by service on the landlord of a notice to quit by only one of the joint tenants. (This was not a revolutionary decision: it had long been assumed to be the law: see eg Doe d Aslin v Summersett (1830) 1 B & Ad135, 140 per Lord Tenterden CJ).

2. Thus, in common law, one of a number of joint periodic tenants can bring the tenancy to an end against the wishes, even without the knowledge, of his or her co-tenant or co-tenants, by serving a notice to quit on the landlord.

7. I am not bound by Vice-Chair Gascoyne's reasoning in order NOL-11017 and NOL-10838, nor do I choose to follow it. The difficulty with the Tenant's position is that the approach taken by Vice-Chair Gascoyne does not reflect the common law in Ontario. It has not been adopted by any courts in Ontario, or elsewhere in Canada.

8. In contrast, the principle that one joint tenant may serve a termination notice that binds other joint tenants has been accepted by Canadian courts for many decades, including in the following cases:

Burrows v. Michelson (1904) 1904 CanLII 127 (MB QB), 14 Man.R. 739 (K.B.);

Balemba and Balemba v. Louis, [1945] A.J. No. 81 (S.C.);

Andreason v. Clarke, [1945] A.J. No. 10 (S.C.);

Dudiak v. Holzer, 1950 CanLII 133 (SK QB); and

Soucy v Milton Heights Inc., 2015 SKQB 126 (CanLII)

9. While Vice-Chair Gascoyne's reasoning in order NOL-11017 and NOL-10838 was based in large part on the potential unfairness that might arise from the unilateral decision of one joint tenant to end a tenancy for all joint tenants, it is worth noting that Lord Neuberger stated the following in Sims, at paragraph 17:

“... Further, it is not an unreasonable provision, in that someone’s interest has to suffer when one of two joint periodic tenants serves a notice to quit. If the result is not as decided in Monk, either the tenant who served the notice is forced to remain a tenant against her will, or the landlord is landed with one tenant instead of two, which means less security - and, in a case such as the present, a family property occupied by a single person. Just as a joint tenant in Mr Sims’s position can claim that the outcome determined as correct in Monk is harsh, so could a joint tenant in Mrs Sims’s position or a landlord in Dacorum’s position contend that either of the alternative outcomes is harsh.”

10. In my view, the hearing member did not err by concluding that the tenancy was properly terminated by the notice of only one joint tenant. Such a conclusion was amply supported by law.