Defining a Tenant

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

2 (1) In this Act, ...

“tenant” includes 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, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”)

O. Reg. 516/06: GENERAL

3. (1) If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act unless the spouse vacates the unit within the 30-day period described in subsection 91 (1) of the Act.

(2) If a tenant vacates a rental unit without giving a notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act.

(3) Subsection (2) does not apply if any one or more of the following criteria are satisfied:

1. The rental unit is in a building containing not more than three residential units and the landlord resides in the building.

2. The spouse vacates the rental unit no later than 60 days after the tenant vacated the rental unit.

3. The tenant who vacated the rental unit was not in arrears of rent and the spouse fails to advise the landlord, before an order is issued under section 100 of the Act, that he or she intends to remain in the rental unit.

4. The tenant who vacated the rental unit was in arrears of rent, the landlord gives the spouse a notice in a form approved by the Board within 45 days after the date the tenant vacated the unit, and the spouse fails, within 15 days after receiving the notice,

i. to advise the landlord that he or she intends to remain in the rental unit, or

ii. to agree in writing with the landlord to pay the arrears of rent.

5. The tenant who vacated the rental unit was in arrears of rent, the landlord does not give the spouse a notice referred to in paragraph 4 within 45 days after the date the tenant vacated the unit, and the spouse fails, before an order is issued under section 100 of the Act,

i. to advise the landlord that he or she intends to remain in the rental unit, or

ii. to agree in writing with the landlord to pay the arrears of rent.

(4) Subsections (1) and (2) do not apply to,

(a) a rental unit described in section 7 of the Act;

(b) a rental unit that is in a care home to which Part IX of the Act applies; or

(c) a rental unit to which section 6 of this Regulation applies.

Arora v Wieleba, 2016 CanLII 37551 (ON SCSM)

18. In any event the execution of the second version of the lease in late August 2014 would appear to have no effect on the rights and obligations as between these two parties. The defendant was otherwise liable under the original lease and it is not apparent what exchange of consideration occurred between these parties to support the second version of the lease. Its net effect would appear to be nothing more than an agreement to change one of the four tenants other than her. The fact the plaintiff agreed to let another tenant (Ali) out of the original lease did not oblige him to release the defendant also.

Angela Foot v. Kenny Dias; Carlos Dias; Jason Stroud ONLTB TST-30893-12

1. In summary, I find the Tenant has no standing to bring this application as she is not a tenant of the rental unit. The Tenant agreed in a separation agreement with the Other Tenant that she is not a tenant, a position consistent with that of the Landlords. Disputes involving separation agreements are outside of the Landlord and Tenant Board's jurisdiction.

5. Subsection 9(1) of the Act provides only a tenant or a landlord can bring an application to determine whether the Act applies, and the italicized excerpt from the separation agreement above contains a specific acknowledgment that the Tenant is not, in fact, a tenant of the rental unit. The question of how the Tenant can later become a tenant of the rental unit without the consent of the Landlords is not one for me to consider here.

6. The separation agreement also matches what I understand would have been the Landlords' position regarding paragraph 6 of the application, which alleges the Tenant and the Other Tenant have a verbal tenancy with the Landlords. In any event, Family Court has exclusive jurisdiction over the separation agreement pursuant to subsection 21.8(1) of the Courts of Justice Act if it is the case the Tenant now intends to resile from it. Extrinsic evidence as to who might have paid rent when is irrelevant in view of the explicit acknowledgment of the parties in the separation agreement as and Landlords' position.

7. The Tenant lacks standing to bring the application. The application must therefore be dismissed.