Defining a Tenant

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	57
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)]
Citation:	Defining a Tenant, CLNP 57, <https://rvt.link/9c>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/10/23

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See Also:

• Implied Tenancy
• Tenant by Spousal Status (RTA)
• Personal Representatives (RTA)

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”)

Smith v. Gega, 2023 ONSC 4723 (CanLII)

[2] For the reasons that follow, I find that Smith was not a tenant as defined in 2(1) of the RTA, and that she therefore is unable to access the protection provided to tenants in section 51(1) of the RTA at the time that the Condominium Declaration was prepared on January 27, 2011. The December 12, 2022 Eviction Order is therefore valid, and Smith’s appeal is dismissed.

BACKGROUND

[3] The facts in this case are not in dispute. Smith is a 59 year old woman who has been residing at 3360 The Credit Woodlands, Unit 18, Mississauga, Ontario since 1964. Smith grew up at this property, where she lived continuously with her parents until their passing. After her parents died (her father in 2015 and her mother in 2018), Smith continued to reside as a tenant at the property, but no new lease was ever signed. There is no issue that Smith was considered to be a tenant of the property at the time that she was served with the Eviction Notice in December of 2022.

[4] Between 1964 and 1978, various fixed term leases were entered into between the landlord and Smith’s parents. The last time a lease was signed with respect to the property was in 1978, with an expiry date of July 31, 1979. In that lease, Smith’s parents are listed as the “tenants” and Smith is listed as an “occupant”.

...

[10] At the hearing, Smith did not raise concerns about the validity of the Eviction Notice. Her main argument was that she was already a tenant at the time that the property was converted to a condominium by living with her parents before the condominium conversion, paying rent, and assisting with upkeep required by the Landlord. She further argues that the definition of “tenant” under section 2(1) of the RTA includes “the tenant’s heirs”. She submits that she was an heir to her parents at the time that the Condominium Declaration was prepared, and therefore she cannot be evicted now pursuant to Section 51(1) of the RTA.

[11] On December 12, 2022, the Landlord and Tenant Board released its decision, finding that at the time that the condominium conversion took place in 2011, Smith was not a tenant, and therefore is not able to access the protection offered to tenants under section 51(1) of the RTA. The Board therefore upheld the Eviction Notice, and ordered that Smith vacate the premises by January 4, 2023 (“the Order”).

[12] Smith appeals the Order, and such appeal stayed the Eviction Order pursuant to section 25(1) of the Statutory Powers Procedure Act.

...

[18] The second issue involves an interpretation of s.51(1) of the RTA, and in particular, the meaning of “tenant” in that section when considered in the context of s.2(1). Section 2(1) defines tenant to include “heirs, assigns and personal representatives” of the tenant.

[19] This issue is a matter of law. The Landlords argue that this issue is a matter of mixed fact and law, but there are no factual findings that need to be made by me to consider this question.

...

[30] In particular, it is noteworthy that the Act does specifically contemplate the rights of a tenant’s spouse upon their death. Subsection 3 (1) of the RTA states the following:

In particular, it is noteworthy that the Act does specifically contemplate the rights of a tenant’s spouse upon their death. Subsection 3 (1) of the RTA states the following: 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. (emphasis added)

[31] The legislature has therefore taken very specific steps to ensure that a spouse of a tenant has the right to remain a tenant in the rental location after the main tenant has died. If the legislature had intended for children to also be included in the definition of tenant, section 3(1) would have been a natural place to include protections for children of tenants along with the spouse of a tenant. This was not done.

[32] Although I recognize the need to apply a fair, large and liberal construction and interpretation of the Act, I cannot ignore the true intent, meaning and spirit of the Act. Although the words “tenant’s heirs” do appear under the definition of tenant in section 2(1) of the Act, interpreting the phrase “tenant’s heirs” to include children living at the same time as the tenant does not fit with section 3(1) of the Act. The fact that section 3(1) is silent about children being included in the definition of tenant suggests that the legislature did not intend for children to be considered tenants in section 2(1) notwithstanding the use of the phrase “tenant’s heirs” in the definition of “tenant”.

Family Law Act, R.S.O. 1990, c. F.3

1 (1) In this Act,

“spouse” means either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)

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.

Wu v. Adler, 2022 ONSC 188 (CanLII)

[21] Section 2 of the Residential Tenancies Act provides that the word “tenant” when used in the Act “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.”

[22] The appellant argues that he was not a tenant because he neither paid rent nor occupied the premises. I disagree.

[23] In support of his position, the appellant relies upon three decisions of the Landlord and Tenant Board: TNL-00736-09-RV (Re), 2009 CanLII 79048 (L.T.B.); TEL-02855-10-RV (Re), 2010 CanLII 25295 (L.T.B.); and EAL-55065-16 (Re), 2016 CanLII 38206 (L.T.B.). However, while in those cases a person who had not paid rent was found for that reason not to be a tenant, unlike in the present case, none of them had signed a tenancy agreement.

[24] The Act provides that a person who pays rent in return for the right to occupy a rental unit is a tenant. In doing so, it does not preclude others from being tenants. In particular, it does not preclude someone who has signed a tenancy agreement as tenant from being considered a tenant. The Act simply makes it clear that even in the absence of an explicit tenancy agreement, a tenancy may be implied from the payment of rent in return for the right to occupy a rental unit. In this regard, it should be noted that in the interpretation section of the Act, many of the terms are given definitions by use of the word “means”. For example, s. 2 provides that “subtenant” means the person to whom a tenant gives the right under section 97 to occupy a rental unit. In the case of “tenant”, however, the word used is “includes” and not “means”.

[25] The trial judge found that in his closing argument, the appellant had conceded that he was a tenant. The appellant now argues that he made no such concession.

[26] The section of the appellant’s written argument entitled “Background” contained the following admissions of fact:

The Plaintiff, Jing Hui Wu, (the "Landlord") and Defendant George Yanovski "Yanovski") entered into a residential tenancy agreement, dated May 5, 2016, for a term of one year commencing July 1, 2016 to and including June 30, 2017 for a monthly rental payment of $3,200.00 per month and an annual rental payment of $38,400.00 (the "Lease Agreement”).

…

The Lease Agreement between the Landlord and Yanovski is governed by the provisions of the Residential Tenancies Act, 2006, SO 2006, c.17 (the "Act" or the "RTA").

…

Yanovski admitted that he rented the rental premises and that he took full responsibility for payment of rent whether he was the tenant or the guarantor and holds himself responsible for the payment of rent and any damages that occurred during the term of the tenancy being from July l, 2016 to and including June 30, 2017.

[27] The section of the appellant’s written argument entitled “Argument and Law”, contained the following submission:

It is admitted that the Defendant, Yanovski, entered into a rental agreement with the landlord and therefore a tenancy was created between the Plaintiff and Yanovski subject to Yanovski moving into the Rental Unit on the date agreed to. However, it is clear that as Yanovski did not move into the Rental Unit, he did not take possession of the Rental Unit, thereby ousting any jurisdiction of the Landlord Tenant Board as it related to him.

[28] While it is true that in his legal argument, the appellant submits that his earlier admissions do not amount to a tenancy because he did not move into the rental unit, the tenancy agreement was not conditional upon him doing so. On the evidence before the court, it was open to the trial judge to find that the appellant was a tenant.

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.

SOT-66425-16 (Re), 2016 CanLII 57313 (ON LTB)

2. This application was previously heard and resolved by another member of this Board. The Divisional Court, in Elguindy v. Destaron Property Management et. al., 2016 ONSC 3662, subsequently granted an appeal from the earlier hearing order, and ordered that the application be re-heard by a different member of the Board.

3. At the de novo hearing, the Respondent's representative raised a preliminary issue. It was submitted that EE and IE are not tenants, and have no standing to bring this application. In response, EE argued that, by benefit of having paid rent and residing in the rental unit, an implied tenancy exists between himself and the Respondent.

4. It was on this very issue that the Divisional Court had granted the appeal and ordered a new hearing.

11. However, I am also mindful of the Divisional Court's pronouncement in Jemiola v. Firchuk, [2005] O.J. No. 6085 (Div. Ct.) which stated that while “tenant” should be broadly and liberally construed, it should also be recognized that,

“… the legislation does not prohibit tenants from having roommates, family and friends living with them. The Member found, correctly in our view, that this does not necessarily confer on them the status of tenant.”

12. Further, while EE is correct in submitting that “occupant” is not defined within the Act, this does not mean that there is no such thing as a non-tenant “occupant” of a rental unit for the purposes of the Act. It is recognized in various provisions of the Act that there may be occupants that are not tenants. One need only look at a number of provisions in the Act referring to “occupants,” and "other members of (a tenants') household," including:

- Section 22, which states that landlords may not interfere with the reasonable enjoyment of rental units by a tenant or “members of his or her household;

- Section 60, which allows landlords to apply to terminate a tenancy if a tenant or “other members of his or her household,” misrepresent their income;

- Section 61, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit commits an illegal act…;”

- Section 62, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit…” wilfully or negligently causes undue damage;

- Section 63, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” wilfully causes undue damage or uses the rental unit in a manner inconsistent with use as a residential premises;

- Sections 64 and 65, which allow landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” substantially interferes with reasonable enjoyment of a residential complex by other tenants or a landlord, or a landlord’s lawful rights, privileges or interests; and

- Section 66, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” seriously impairs the safety of any person in the residential complex.

13. Just as the Act recognizes that persons other than tenants may reside in a rental unit, it also recognizes that persons other than tenants may pay rent, as section 2(1) of the Act defines “rent” as “includ(ing) the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit...” [emphasis added]

14. Turning to the question of whether there is an implied tenancy, the Divisional Court recognized that at the prior hearing of this application, there was the following evidentiary indicia of an implied tenancy, which was again put forward at the re-hearing:

- EE has paid rent directly to the Respondent Landlord for more than two years;

- EE has lived in the rental unit for more than two years; and

- The Respondent Landlord was aware that EE resided in the rental unit accepted his rent payments, and approached him about filling out an "occupancy form."

15. It is worth noting that implied tenancies usually arose where, before the continuation of expired leases on a month to month basis was made automatic by statute, tenants continued to occupy rental units and continued to pay rent after fixed term tenancies had ended. However, implied tenancies could also arise where tenants moved out or died, but other persons paid rent to landlords for the right to remain in rental units.

16. In my view, consideration of the evidence in its full context in the current case did not support the creation of an implied tenancy between EE and the Respondent. The evidence did not show that EE paid rent for continuation of a lapsed or terminated tenancy. He testified that he has lived in the rental unit, and paid the rent, since the commencement of his son's tenancy, which is still in effect. The tenancy with AE has never lapsed or terminated. The Landlord's staff members have approached EE about being added in writing as an occupant, not a tenant. These facts comfortably support a conclusion that EE has lived in the rental unit as an occupant by benefit of his son's tenancy, that he has paid rent on behalf of his son, and that he has never become a tenant himself.

17. Based on my conclusions, I have determined that there is no implied tenancy, or any landlord and tenant relationship, between the Respondent Landlord and the Applicants, EE and IE. The tenancy is with AE. EE and IE are occupants, and members of AE's household, by benefit of AE's tenancy.