Illegal Entry (Rooming House)

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

2 (1) In this Act,

...

“rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,

(a) a site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises, and

(b) a room in a boarding house, rooming house or lodging house and a unit in a care home; (“logement locatif”)

“residential complex”, except in Part V.1, means,

(a) a building or related group of buildings in which one or more rental units are located,

(b) a mobile home park or land lease community,

(c) a site that is a rental unit,

(d) a care home, and,

includes all common areas and services and facilities available for the use of its residents; (“ensemble d’habitation”)

“residential unit” means any living accommodation used or intended for use as residential premises, and “residential unit” includes,

(a) a site for a mobile home or on which there is a land lease home used or intended for use as a residential premises, and

(b) a room in a boarding house, rooming house or lodging house and a unit in a care home; (“habitation”)

...

Privacy

25 A landlord may enter a rental unit only in accordance with section 26 or 27. 2006, c. 17, s. 25.

Entry without notice

Entry without notice, emergency, consent

26 (1) A landlord may enter a rental unit at any time without written notice,

(a) in cases of emergency; or

(b) if the tenant consents to the entry at the time of entry. 2006, c. 17, s. 26 (1).

Same, housekeeping

(2) A landlord may enter a rental unit without written notice to clean it if the tenancy agreement requires the landlord to clean the rental unit at regular intervals and,

(a) the landlord enters the unit at the times specified in the tenancy agreement; or

(b) if no times are specified, the landlord enters the unit between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 26 (2).

Entry to show rental unit to prospective tenants

(3) A landlord may enter the rental unit without written notice to show the unit to prospective tenants if,

(a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other;

(b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and

(c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so. 2006, c. 17, s. 26 (3).

Entry with notice

27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:

1. To carry out a repair or replacement or do work in the rental unit.

2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.

3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.

4. To carry out an inspection of the rental unit, if,

i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and

ii. it is reasonable to carry out the inspection.

5. For any other reasonable reason for entry specified in the tenancy agreement. 2006, c. 17, s. 27 (1).

Same

(2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. 2006, c. 17, s. 27 (2).

Contents of notice

(3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 27 (3).

TST-44891-13 (Re),

Illegal Entry:

18. Subsection 27(1) of the Act provides that a landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry. In accordance with subsection 27(3):

The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m.

19. There is no dispute that on five occasions (September 30, 2012, October 8, 2012, December 27, 2012, January 5, 2013, and April 15, 2013) the Landlord entered the Tenant’s unit. It was the Landlords’ practice to write the “notice” on a white eraser board located in the kitchen. With the exception of the notice of entry for September 30, 2012, the Landlord did not specify a time of entry or merely indicated “10am - 4pm”.

20. I am not satisfied that placing a notice on a white eraser board located in a common area kitchen would satisfy the written notice requirements as set out in subsection 27(3) of the Act. In addition, four of the notices were also defective because there was no time specified or the duration period in which the Landlords could enter was unreasonable in the circumstances.

21. Based on the evidence before me, I find that by failing to provide the Tenant proper notice prior to entering the Tenant’s rental unit, the Landlords have entered his unit illegally on five occasions.

22. The Tenant is seeking the following abatements for each illegal entry and breach of privacy; $500.00 on September 30, 2012, $100.00 on October 8, 2012, $1,000.00 on December 27, 2012, $700.00 on January 5, 2013 and finally $1,200.00 on April 15, 2013. The Tenant is relying on Wrona v. Toronto Community Housing Corp. [2007] O.J. No. 423 (Ont. Div. Crt.) as his authority in justifying the quantum of the rent abatement. In Wrona, the court awarded the tenant $1,000.00 for an illegal entry.

23. Wrona is distinguishable from the case before the Board. In Wrona the tenant was a vulnerable person and there was also a long history of discussions between the tenant and the landlord regarding the notices of entries and the impact that those entries had on her mental health. Those same issues do not exist with the parties before the Board on this case.

24. Having regard for the impact statement of the Tenant and the reasons for the entries, I am of a view that an appropriate rent abatement in this instance to be $500.00 or $100.00 for each occurrence.

TST-00531-18 (Re),

3. The Tenant’s application focuses on events that took place on four days in October, 2018. The Tenant claims that on these days, the Landlord, JD, entered his unit illegally. At the hearing, the Tenant clarified that JD did not enter his room but he entered the common areas he shares with the other tenants who live in unit 2.

4. In addressing this claim, I must determine which part of unit 2 is the rental unit – is it the entire unit, including common arrears or the Tenant’s room only. This determination is important because, in general, an illegal entry involves a landlord’s entry into a rental unit. Sections 26 and 27 of the Residential Tenancies Act, 2006 (the “Act”), which establish what constitutes illegal entry, set out when a landlord can enter a rental unit.

5. The parties do not dispute that unit 2 of the residential complex includes four bedrooms that are rented under separate tenancy agreements to different tenants and all the tenants share an entrance to unit 2, hallways, a kitchen and a bathroom. The Tenant’s position is that the rental unit includes his bedroom and the common areas he shares with the other tenants. The Landlords’ position is that the rental unit is the Tenant’s room only and they let the Tenant use the common areas.

6. Based on the evidence before me, I am satisfied on a balance of probabilities that the rental unit includes the Tenant’s room only. One of the first things the Tenant said in his testimony is that the residential complex is a rooming house and his unit is a room in the house. Section 2(1) of the Act defines “rental unit” to include a room in a rooming house. This is different from the definition of “residential complex”, which means a building or related group of buildings in which one or more rental units are located and it includes all common areas and facilities available for the use of its residents. I find that the common areas the tenants of unit 2 share are part of the residential complex but they are not part of the rental unit. I note that the parties did not have the tenancy agreement with them at the hearing, so I was unable to review it and determine if it defines the rental unit in a way that differs from their testimonies. I make this finding based on the only evidence before me.

7. Since the Tenant’s evidence was that the Landlords never entered his room, I find that the Landlords did not enter the rental unit illegally. Accordingly, this claim is dismissed.

TET-59931-15-RV,

108. I would also point out at this juncture that the tenancy agreement between the parties was for shared common areas. The privacy provisions of the Act apply to the “rental unit” which in this case is the Tenant’s room. They do not apply to shared common areas like hallways in apartment buildings or kitchens in rooming houses. So even if it were true that the Landlords entered the kitchen of the residential complex after the Tenant left, that is not a breach of s. 25 of the Act.

SWT-35919-12 (Re),

21. No illegal entry was proven. As I stated at the hearing, the living room incident would not constitute illegal entry because the living room in a rooming house would qualify as a common area for which the Landlord is not required to serve notice, or obtain consent, prior to entry. As there are other tenants in the house, it is also not a practical place for such intimate acts. For reasons stated above, I also did not find the evidence with respect to the bedroom incident to be credible.

TST-95288-18 (Re),

Illegal entries

9. The Tenant testified that the Landlord C K. would enter and use the common areas on the main floor without providing 24-hour-notice on multiple occasions. The Landlord C K. told the Tenant she could do so as the house is owner occupied. The Tenant disagrees with this position because C K. occupies the third floor unit which has its own bathroom and kitchen. As I have already found, section 5 (i) of the Act does not apply to exclude this application from the Act.

10. Sections 26 and 27 of the “Act” require that, other than in the case of an emergency, or with the tenants’ consent, or for cleaning if required by the tenancy agreement, a landlord is required to provide a tenant with 24 hours written notice, indicating when between the hours of 8:00 AM and 8:00 PM and for what reason the landlord intends to enter the “rental unit”. There is no requirement that the Landlord provide a notice of entry to the common areas.

11. In order to assess whether there was illegal entry, I need to examine what the rental unit consisted of in this case. To do that, I turn to the definition of a rental unit.

12. Section 2(1) of the Act defines “rental unit” as follows:

““rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,

(a) A site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises, and

(b) A room in a boarding house, rooming house or lodging house and a unit in a care home.” [Emphasis added]

13. Based on the uncontested evidence before me, I am satisfied that this is a rooming house and the “rental units” are only the rooms occupied by the individual tenants.

14. On a balance of probabilities, I find that the Landlord C K. only entered the common areas and not the “rental unit”. As such, the requirement for notice to enter the “rental unit” under sections 26 and 27 does not apply and there is no requirement for the Landlord to give notice for these entries.

15. While the Landlord C K. does not require notice to enter the common areas, if she was in there frequently or engaged in conduct that would be disruptive or disturbing to the Tenant, it could amount to substantial interference of her right to quiet enjoyment in the residential complex, which includes the common areas. This leads me to the inquiry of whether the behaviour of the Landlord, C K, amounts to substantial interference in this case.

TST-95401-18 (Re),

18. On a balance of probabilities, I find that the Landlord only entered the common area and not the “rental unit” on June 22, 2017 and February 5, 2018. As such, the requirement for notice to enter the “rental unit” under sections 26 and 27 does not apply and there is no requirement for the Landlord to give notice for these entries.

19. While the Landlord does not require notice to enter the common areas, if he was in there frequently or engaged in conduct that would be disruptive or disturbing to the Tenant, it could amount to substantial interference of her right to quiet enjoyment in the residential complex, which includes the common areas. I find the facts in this case do not support such a finding.

TNT-73996-15 (Re),

Remedy: illegal entry

10. In tenant applications the most common remedy awarded is abatement of the rent. Abatement is a contractual remedy which is designed to address the idea that if a tenant is paying rent for a bundle of goods and services and not receiving them, then the rent

should be abated in an amount proportional to the difference between what is being paid for and what is being received.

11. The difficulty that arises in the context of a breach of privacy rights under the Act is that abatement of the rent is not a good fit as a remedy. I say this because a single breach such as the one here may only deprive the tenant of his or her right to privacy for one day, which given what abatement represents, would seem to limit the available remedy to abatement of the rent for one day. In an average tenancy such a remedy results in an amount that seems to me to be woefully inadequate. For example, in the case here an abatement of one day would be only $29.92. Furthermore, awarding abatement for breach of privacy fails to get at the full impact of the breach, which often results in lingering feelings of violation that can continue indefinitely into the future.

12. However, the Divisional Court in Mejia v. Cargini, [2007] O.J. No. 437, found that the phrase “any other order that it considers appropriate” in the remedies section of the Act (which is now found in paragraph 31(1)(f)) means that the Board has the power to award “damages for the breach of contract of lease”. For the reasons stated above it seems to me that in breach of privacy cases, approaching remedy as a matter of damages arising from a breach of the tenancy agreement is more logical and appropriate than describing the remedy as abatement of the rent.

13. The leading case with respect to breach of privacy is Wronav. Toronto Community Housing Corp., [2007] O.J. No. 423 (Ont. Div. Ct.). In that case the Tenant was provided with notice but the notice failed to meet the mandatory requirements of what is now section 27 in that the time of entry was a window of several hours rather than a specific time. The Court awarded the tenant $1,000.00 for a single illegal entry. As Wronais the leading case from the higher courts of Ontario with respect to privacy rights, I believe the remedy awarded by the Court in that case is the starting point for determining the appropriate amount to award the Tenant in this case.

14. In Wrona there had been at least one previous application brought to the Tribunal by the tenant about the same issue. In other words, there was a history of dispute between the parties about what constituted a legal entry. Here there was no prior application between the parties. The other significant difference between the two cases is that in Wrona the tenant was not in the middle of moving out. Clearly, if one is mostly moved out and has only a few more items to collect from a rental unit, then one’s attachment to that unit is less and presumably the impact of an illegal entry will also be less.

15. Another difference between the two cases is that in the case at bar, there is no issue as to the timing of the entry; the issue is that the Landlord served a notice that is for a purpose not permitted in the Act. I have considered that although the Landlord’s purpose for the entry is not one permitted in the Act, it is one that is reasonable.

16. Based on the precedent established by Wrona, the differences between the two cases, my knowledge of previous applications before the Board, and the evidence of impact on the Tenant of the Landlord’s actions, I am of the view that a reasonable amount for damages arising from the Landlord’s illegal entry of the rental unit is $100.00.

Case Name

7. The parties agreed that the residential complex is a rooming house.

8. The Tenant’s rental unit is the room he occupies in the rooming house. The Landlord’s presence in the common areas is not an illegal entry into the Tenant’s rental unit.

9. The Landlord is not required to give the Tenant a notice when he comes to the common areas of the residential complex to clean or take care of any other related matters.