Roommates (RTA)

TSL-69895-16 (Re), 2016 CanLII 39824 (ON LTB)

15. The issue in this application is whether the Tenant has transferred occupancy of the rental unit to a person without the authorization of the Landlord. The essential fact at issue in this application is whether the Tenant continues to occupy the rental unit, given that she is away from the rental unit so frequently.

16. The Landlord relies on Samuel Property Management v. Nicholson (2002), 61 O.R. 3d. 470 (C.A.), (hereinafter Nicholson).

17. In Nicholson, the tenant rented the main floor and basement of a house from the University of Toronto. He constructed a self-contained bedroom in the basement and rented the main floor to two friends for a little more than the rent the Landlord charged for the rental unit. The tenant lived with his family in the suburbs and stayed in the basement bedroom from time to time when he was in the city for business. The Court of Appeal upheld the Ontario Rental Housing Tribunal’s finding that he had transferred occupancy of the rental unit to his friends. The Court observed that the tenant’s limited use of the rental unit made it impossible to conclude that he had not transferred occupancy of the unit.

18. In Nicholson, the Court affirmed that whether a transfer had taken place is a question of fact and degree and focussed on whether the unit was in truth the home of the tenant. In this case, the Tenant has lived in the unit for approximately 10 years. The Tenant has a roommate who she charges rent but that is reasonable in the circumstances and she does not charge more rent than is charged by the Landlord. There was no evidence at the hearing that the Tenant owns a home or rents a home elsewhere. The Tenant’s belongings remain in the unit. Although the Tenant is frequently away, she has no home other than the rental unit.

19. I am therefore not satisfied that the Tenant transferred the tenancy to an unauthorized occupant. The Landlord’s application must be dismissed.

TSL-91036-17 (Re), 2018 CanLII 42660 (ON LTB)

18. Subsection 100(1) the Residential Tenancies Act, 2006 (the 'Act') states:

If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred.

19. Clearly, and as there is no dispute between the parties that the Landlord did not authorize an assignment under section 95 or a subletting agreement under s. 97, on an application such as this, the Board must initially determine if there was indeed an unauthorized transfer of occupancy in a manner, which engages subsection 100(1) of the Act.

20. On any application before the Board the party making an allegation has the onus of proving that allegation on a balance of probabilities. That means the Landlord here must lead sufficient evidence to establish it is more likely than not the Tenant transferred occupancy of the rental unit to one or more persons, without the Landlord’s consent.

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34. The Landlord’s evidence of the Tenant advertising rooms in the unit to prospective roommates on Facebook was similarly unpersuasive. As stated above, tenants are permitted to have guests and/or roommates. The Tenant explained she and her roommates do not use the unit’s living room for the intended purpose, but rather as a room, which she rents. The evidence from the Tenant’s Facebook page did not show the Tenant was renting rooms in the unit in a fashion that would preclude her from also living in the unit and, moreover, no evidence was presented more than three individuals, including the Tenant, resided in the unit during the material time which, in any event, would not be helpful to the Landlord in this particular application.

35. The copies of the Tenant’s boyfriend’s Facebook page and the land registry documents showing the Tenant’s boyfriend owns a condominium in Toronto do not advance the Landlord’s position at all. First, tenants are entitled to be in relationships with individuals who own their own home and, as already stated, to spend time in their partners’ homes, while at the same time maintaining a separate residence. The Tenant’s and the Tenant’s boyfriend’s reference, on Facebook, to “our dog” and the Tenant’s and her boyfriend’s posts of the view from the boyfriend’s unit are, again, not sufficiently convincing evidence the Tenant no longer resides in the unit. This is especially so in light of the Tenant’s affirmed and uncontradicted testimony her boyfriend owned the dog well before the couple’s relationship began and the Tenant refers to the dog as her dog because she loves dogs, including the dog at issue. As for the post on the Tenant’s Facebook page, by her boyfriend, referring to the view of the City from his unit, and stating “What an amazing view we have! We are blessed in so many ways”, such a passing comment, absent any context, and other corroborative evidence is hardly determinative as the boyfriend’s comment could have been made for any number of reasons—including, on the occasions the Tenant stays at her boyfriend’s unit, the view is “amazing.”

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40. The Landlord’s legal representative requested I should draw an adverse inference from the fact that the Tenant did not call her boyfriend and Sabrina to testify.

41. However, and as already stated, the burden of proof on an application like this rests with the applicant—in this case, the Landlord. If the Landlord wanted an opportunity to hear testimony from the Tenant’s boyfriend and S he could and should have compelled their testimony by requesting the Board issue a summons requiring their attendance and the Landlord, based on the evidence presented, certainly had knowledge of the two individuals’ place of residence for the purpose of service of a summons. In other words, the adverse inference argument works both ways; the Landlord’s failure to summons the Tenant’s boyfriend and S, given he bears the evidentiary onus, might support the inference that the Landlord knew their testimony could very well refute the allegations in the application and not be favourable to the Landlord’s case. There is no property in a witness.

42. For the stated reasons I am unable to find, on a balance of probabilities, the Tenant transferred the occupancy of the rental unit to unknown occupants in a manner that was not authorized by the Act. Therefore, the Landlord’s application must be dismissed.