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Tremblay v. Ogunfeibo, 2019 ONSC 7423 (CanLII)

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[4] The parties both resided in a building that consists of eight rental units. The building is owned by a landlord who is not a party to this proceeding. Ms. Tremblay rented two units from the landlord. She lived in one of the units. The second unit consists of two bedrooms, a bathroom, a common area, and a kitchen.

[5] Since 2016, Mr. Ogunfeibo has rented from Ms. Tremblay one of the two bedrooms in the second unit with shared use of the kitchen, common area, and bathroom. Initially, Mr. Ogunfeibo had a roommate who rented the other bedroom in the unit. After the roommate left, Ms. Tremblay has rented the room on a short-term basis at times. She herself does not live in the unit.

[40] Mr. Ogunfeibo is again challenging his eviction at the board and claims that the landlord and Ms. Tremblay colluded to evict him unlawfully. I am not to be taken to be prejudging that ongoing proceeding. However, I do not see the fact that the landlord may have rights against an unauthorized subtenant as undermining the point that the Act applies to the relationship between the tenant, in the position of Ms. Tremblay, and a person who rents from her in the circumstances of this case. If others are able to assert superior rights, then the outcome can be determined by the board on an analysis of each of the relationships. Specific rights set out in s. 97 in favour of tenants who sublet and their subtenants may or may not be available where a proper subtenancy is not created as defined in s. 2(2). Moreover, if a tenant is found to have misled someone as to her capacity to rent the premises, that too may have legal consequences. The board is instructed by s. 202 of the Act to “ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit”. With this mandate, the board is well able to sort through the complexities of modern commerce to separate appropriate and necessary structure from deliberate or abusive misconduct.

[41] In my view, finding that the Act applies to the relationship between Ms. Tremblay and Mr. Ogunfeibo as landlord and tenant is consistent with the wording of the Act and its remedial purpose. It follows that Ms. Tremblay had no right to evict Mr. Ogunfeibo by self-help on October 1, 2018 as she did. Moreover, her conduct was particularly egregious as she had previously submitted her issues to the board for resolution. Evicting Mr. Ogunfeibo while they were waiting for the board hearing in a proceeding that she herself had commenced was high-handed to say the least.

[42] Therefore, while the Board erred in its application of the subtenancy provisions of the Act, this is not an appropriate case to set aside the decision. Given the evidence before the Board and the definitions of landlord and tenant, the Board’s remedial order should stand. The appeal is therefore dismissed.

Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII)

[7] The definition of “landlord” in the Act, however, is not restricted to the owner of a rental unit and it clearly contemplates that there may be more than one “landlord”. Section 2 of the Act provides in part: “landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit….[emphasis added]

[8] Where the premises are owned by a corporation, the issue is whether the sole shareholder and officer of that corporation may also come within the definition of “landlord” as a “person who permits occupancy of a rental unit”. In this case, the sole shareholder and officer is clearly the directing mind of the corporate owner and is therefore a “landlord” within the definition of the Act as the person who permits occupancy of the unit. Whether another individual is “a person who permits occupancy of a rental unit” will depend upon the facts, including particularly whether the person has the ultimate authority to permit occupancy.

[10] Section 202 provides: In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.

[13] Furthermore, by its language, s. 202 obligates the Board to ascertain the true substance of transactions, activities and the good faith of the parties when making findings on an application. It allows the Board to disregard the separate corporate existence of the parties to the transaction in doing so. These are matters that are relevant to an enquiry under s.48. As a result, we are satisfied that s. 202 is relevant to the determination of an application under s. 48 of the Act.

York Region Condominium Corp. No. 639 v. Lee 2013 ONSC 503 (Divisional Court)

1. The applicant appeals two orders of the Landlord and Tenant Board ("Board"). The first is an order dated March 22, 2012 made by Member Karol Wronecki dismissing an application made by the applicant, as landlord, pursuant to section 48 (1) of the Residential Tenancies Act, 2006 S.O. c. 17 ("the Act"). The application was for an order terminating the tenancy of the respondents at the end of the term of their tenancy on the ground that the applicant required possession of the respondents' unit for the purpose of its own residential occupancy. The second is an order dated April 20, 2012 made by Member Vincent Ching pursuant to Rule 29 of the Board's Rules of Practice declining the applicant's request to review the previous order, confirming it and declaring that it "remains unchanged". Although the notice of appeal states that the appeal is from only the second order, the applicant's factum states that it is from both orders and no objection limiting the scope of this appeal was made.

2. The respondents were not represented in this appeal by counsel. The respondent, Norbert Lee, appeared in person and made brief oral submissions. His spouse, the respondent, Frances Lee, did not appear. The Board has intervened in this appeal pursuant to section 210 (3) of the Act and, as a result, we have had the benefit of the able assistance of its counsel, who confined his submissions to the issue of what the applicable standard of review ought to be.

Background

1. York Region Condominium Corporation #639 (CC) has owned a building in Markham, Ontario, since 1986. All units (approximately 150) but one are owned by individual members. Unit 118 is owned by CC as a common element and until 2007 it was occupied by a resident superintendent.

2. From April 2007 the owners decided to rent unit 118 to the present Tenants. The building is being serviced by an off-site superintendent. After work hours owners have acted as on-call residents for emergency purposes.

3. In 2012 the corporation decided to again employ an on-site superintendent who will reside in the building. They wish to return to the pre-2007 status of unit 118 and gave the Tenants, who have lived there since 2007, a notice of termination (so-called Form N12). There actually have been two notices, the applicant relies on the amended one dated January 30, 2012. It states that CC needs the unit for "a person who provides or will provide care services to...the Corporation". The date of termination in the notice is April 10, 2012.

11. It is clear from Member Wronecki's Reasons that he approached the application before him by concluding that the Court of Appeal in Slapsys v. Abrams [2010 CarswellOnt 7831 (Ont. C.A.)] had effectively decided that "a large corporate entity of some 150 shareholders "could not style itself to be a landlord for the purpose of own occupation for residential use" (see Reasons, para. 13) and "that, as a rule, a corporation cannot assume the position of landlord in the meaning of section 48 of the Act". That consideration alone was sufficient for him not only to dismiss the application but to hold that the notice of application was "void".

12. In my view, by interpreting and applying Slapsys as he did, the Member fell into error. In Slapsys, the Court of Appeal upheld the right of the sole shareholder and officer of a corporation that owned a rental property to invoke section 48 (1) to successfully obtain possession for the purpose of his own personal occupation. This appeal, in contrast, involves the right of the corporation that owns a rental property to obtain possession for its own occupation. The question of whether a corporation can ever "possess" a rental unit for "the personal use of the landlord", the issue in this appeal, was not addressed by the Court of Appeal.

23. On the authority of Slapsys, it is clear that the applicant could, on the evidence, reasonably qualify as a "landlord" within the definition set out in the Act. The only remaining question is whether the applicant, a body created pursuant to statute, is capable of acquiring possession of the rental unit for the purpose of residential occupation by itself. In my view, it is.

24. There is a legal presumption that rights conferred by statute are available to natural persons and corporations unless the statute states otherwise and there is no provision anywhere in the Act that limits its application only to natural persons. The Act refers to persons governed by the Act throughout in generic-neutral terms such as "landlord" and "tenant". Even if the Act had been worded to refer to them in "gender-specific" terms such as "he" or "she", section 68 of the Legislation Act would apply to provide that "Gender-specific terms include both sexes and include corporations (emphasis added)". A priori, if generic-specific terms include corporations, generic-neutral terms must include corporations as well.

25. The apparent reason why it is sometimes considered that section 48 (1) cannot apply to corporations is because corporations, being entities created pursuant to statute without any physical mass, do not have the capacity to occupy a rental unit in the same manner as a natural person. However, it is not necessary that a corporation have the same characteristics as a natural person in order to rely on section 48 (1). Rather, a corporation can occupy a rental unit in the same way that it does everything, namely, through the actions of its officers, directors, employees and other agents. If a corporation can occupy a rental unit for the purpose of maintaining or operating an office, store, factory, warehouse and other kinds of realty, it must surely also be able to occupy a rental unit for the purpose of residential occupation incidental to its status as a landlord.

26. In the context of this appeal, it is my view that when a corporation that is the landlord of a building occupies a rental unit for the purpose of engaging and requiring one or more natural persons to reside in the unit because on-site residency is reasonably incidental to their functions on behalf of the corporation, the residential occupation of those natural persons is also that of the corporation. In such circumstances it is open to the landlord to invoke section 48 (1) to attempt to regain possession of the unit for that purpose.

27. It matters not that a corporation cannot have a spouse, child or parent and clearly cannot meet the requirements of section 48 (1) (b) or (c) of the Act. This, however, does not disqualify a corporation from relying solely on section 48 (1) (a) of the Act as the applicant does.

35. Order to go:

a) allowing the appeal and setting aside the orders made March 22, 2012 and April 20, 2012;

b) granting the application and giving the applicant vacant possession;

c) the respondents shall provide possession of the unit to the applicant no later than February 28, 2013;

d) no costs.

Appeal allowed.

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