Non-Application of the RTA (Eviction)

See Also

• No Right of Self-Help
• https://eviction.sucks/covid19-tenancies/covid19-tenancies-evictions

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

Exemptions from Act
5 This Act does not apply with respect to,

(a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

(n) any other prescribed class of accommodation.

YMH v YWCA, 2019 CanLII 121436 (NWT RO)

12. I understand that Northview took action by giving the Landlord an eviction notice on September 10, 2019, ending the contract for the rental premises effective immediately and requiring the Landlord to have the premises vacated. The Landlord told the Tenant to vacate the premises, and then on September 12, 2019, Northview changed the locks to the premises, prohibiting the Tenant’s return. Sometime over the next few days the Tenant was granted access to the premises during daytime hours only, and then started staying there again on September 18, 2019. The Tenant’s children returned to the premises September 20, 2019. On October 2, 2019, the RCMP forcibly entered the premises and removed the Tenant and his children, returning possession to Northview. Under what authority the RCMP conducted this eviction was not established at hearing – no evidence was presented of either an eviction order or a writ of possession issued by the Supreme Court. Neither was an application to a rental officer made by the Landlord seeking termination of the tenancy agreement and eviction.

Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)

[63] Section 141(1) of the Courts of Justice Ac, R.S.O., c. C.43, states that "orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement".

[64] As held by Bale J. in his decision of January 8, 2019, in combination these two provisions make clear that the sheriff "is required to enforce the eviction order, in the same manner as a writ of possession…"

[70] The Sheriff does not have the discretion to decide not to enforce the eviction orders.

[71] In Central Guaranty Trust Co. v. McRae (1993), 1993 CanLII 8542 (ON SC), 13 O.R. (3d) 295 (Sup. Ct.), at para. 12, the Superior Court held that the Sheriff has a duty to enforce validly made writs of possession and no discretion not to do so:

A writ of possession is an order of the court. It is granted only after a Judge or master has made a judicial determination which includes consideration of the rights of the occupants. A Sheriff is an officer of the court, sworn to uphold the law. Refusal by a law enforcement officer to enforce an order of the court can only serve to undermine respect for the judicial system and bring the administration of justice into disrepute. A Sheriff, therefore, has no discretion to refuse to execute a writ of possession.

[72] The same principle clearly applies to the Sheriff's obligation to enforce an eviction order made by the Board, given that section 85 of the Residential Tenancies Act provides that an eviction order is to be enforced in the same manner as a writ of possession.

Toronto Community Housing v. Bryant Didier, 2018 ONSC 5158 (CanLII)

[11] The Landlord and Tenant Board reached its decision on January 19, 2016. The Board determined that it had no jurisdiction over Unit B3 because from the onset of Mr. Didier’s tenancy, Unit B3 was used “predominantly, if not exclusively, for commercial purposes.” The jurisdiction of the Landlord and Tenant Board is restricted to residential premises.

[12] Mr. Didier decided to appeal the decision of the Landlord and Tenant Board, but did not do so in time. Mr. Didier brought a motion to the Divisional Court seeking an extension of time to appeal the Board’s decision. On August 30, 2017, while the motion before the Divisional Court was pending, the TCHC served Mr. Didier with a second Notice to Quit to terminate his tenancy of Unit B3. This August 2017 Notice to Quit demanded that Mr. Didier vacate Unit B3 by September 30, 2017. The TCHC delayed enforcement of the August 2017 Notice to Quit while the Divisional Court had Mr. Didier’s motion under consideration.

[13] On October 19, 2017, the Divisional Court dismissed Mr. Didier’s motion to extend the time for his appeal on the basis that Mr. Didier’s appeal of the Landlord and Tenant Board’s decision had no merit. The Divisional Court held that the Landlord and Tenant Board’s determination that Unit B3 was not used as a residence “was amply supported by the evidence before it.” Appeals from the Board lie to the Divisional Court only on questions of law, and none were raised by Mr. Didier’s appeal.

[22] In cases where there is no written lease and where the parties dispute the type of tenancy that was agreed upon, the onus is on each party to establish, on a balance of probabilities, their respective positions concerning the term of the tenancy. In this regard, the Court must look at the surrounding circumstances, including the actions of the parties, to determine what the parties intended their contractual relationship to be: Manitouwadge General Hospital v. Kudlak, 2000 CarswellOnt 3243 (Ont. S.C.J.), at para. 28. All matters considered, in assessment of all evidence regarding Mr. Didier’s rental history, I have determined that Mr. Didier’s rental of Unit B3 is a monthly tenancy. I do not find in the current record any agreement on implied terms between the parties pertaining to the rental of Unit B3.

[24] The Landlord and Tenant Board determined that Mr. Didier’s rental of Unit B3 was exempted from the Residential Tenancies Act because it came within section 5(j), which exempts “premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation.” The Landlord and Tenant Board has the exclusive jurisdiction to determine and terminate a residential tenancy: section 168(2) of the Residential Tenancies Act; Toronto-Dominion Bank v. Hosein, 2016 ONCA 628, 133 O.R. (3d) 225; Warraich v. Choudhry, 2018 ONSC 1275, 2018 CanLII 1275 (Div. Ct.).

Ravnaski v. Zolis, 2020 ONSC 923 (CanLII)

[10] First, is Mr. Ravnaski a tenant of the estate such that any request for him to vacate the condominium is governed by the Residential Tenancies Act? The answer to this question will resolve both the estate’s application and part of Mr. Ravnaski’s application to set aside the arbitration award. If Mr. Ravnaski is a tenant of the estate and his tenancy is exclusively governed by the Residential Tenancies Act, the arbitrator did not have jurisdiction to order him to vacate the property and this Court does not have jurisdiction to grant the estate’s application for vacant possession. On the other hand, if Mr. Ravnaski is not a tenant of the estate, the estate is entitled to an order for vacant possession of the condominium. If this Court grants the estate’s application and orders Mr. Ravnaski to vacate the condominium, his application to set aside the arbitrator’s order that he vacate the condominium would be moot.

[15] The Residential Tenancies Act did not apply to the rental agreement Mr. Ravnaski had with his mother while she was alive, even though he paid her rent. The Residential Tenancies Act does not apply with respect to living accommodation whose occupant shares a bathroom or kitchen facility with the owner.[4] Mr. Ravnaski’s mother owned the condominium and they shared a kitchen. Mr. Ravnaski’s tenancy was, therefore, not covered by the Residential Tenancies Act while his mother was alive.

[17] For the reasons that follow, I find that Mr. Ravnaski had a contract with his mother to live in her condominium for a month at a time in exchange for rent. The estate was required to permit Mr. Ravnaski to live in the condominium for the remainder of the month for which he paid before his mother passed away. Mr. Ravnaski never entered into a contract with the estate that would permit him to continue to live in the condominium after the agreement he had with his mother expired. As a result, he is not a tenant of the estate and has no legal entitlement to stay in the condominium.

[33] I find that Mr. Ravnaski is not a tenant of his mother’s estate and there has never been a valid tenancy agreement between Mr. Ravnaski and the estate. Mr. Ravnaski’s occupation of the condominium was not governed by the Residential Tenancy Act while his mother was alive and that did not change after her death. The Estate Trustee is entitled to vacant possession of the condominium and Ms. Zolis’ application (CV-19-00624557-000) is granted.

[60] Mr. Ravnaski is not now and has never been a tenant of the estate. His occupation of the condominium is not governed by the Residential Tenancies Act. The estate’s application (CV‑19‑00624557-000) for vacant possession of the condominium is granted.

[61] In her application, Ms. Zolis asked for an Order that Mr. Ravnaski vacate the property immediately. She also asked for an Order authorizing her to seek the assistance of the Sheriff to secure the vacant possession of the property if Mr. Ravnaski does not voluntarily leave.

[62] Mr. Ravnaski is ordered to vacate the property within 90 days from today. If Mr. Ravnaski refuses to leave the condominium in compliance with my order, Ms. Zolis, in her capacity as the Estate Trustee, is granted leave to issue a writ of possession in relation to the condominium and require the Sheriff of the City of Toronto (the “Sheriff”) to put her in vacant possession of the condominium. Ms. Zolis, in her capacity as the Estate Trustee, can seek the assistance of the Toronto Police Service, the Sheriff and any qualified and licensed locksmith to obtain and secure vacant possession of the condominium. To the extent that the Toronto Police Service, the Sheriff of the City of Toronto or a locksmith are involved with securing vacant possession of the condominium for the Estate Trustee, they are to be held harmless.

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada, to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;

• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

• There is no evidence that Morgan gave Roxanne notice to leave the home; and

• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

• Roxanne was, at a Minimum, a Licensee and Entitled to Remain

Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division)

48. When Diane and Steve Divitcos re-entered the building and changed the locks after they had been evicted pursuant to a writ of possession, they were clearly doing an illegal act. One of the main public policies manifested in Part IV of the Landlord and Tenant Act is a legislative determination not to have the obtaining of possession of leased residential premises made the subject of self-help remedies by either landlords or tenants.

51. The Act reflects the expectation that in the usual case it would be the landlord that would be seeking to recover possession. However, as decided by Hayes J. in Foster v. Lewkowizc, supra , a tenant may seek a writ of possession - and it would follow that in the case of the tenant as much as in the case of the landlord that is the only lawful way to recover possession.

53. If the solicitor counselled or countenanced these clearly illegal acts of his clients his own conduct was outrageous, and well below the standard which the court is entitled to expect from any solicitor licenced to practice as such in Ontario. The policy against self-help - against the recovery of possession of residential premises except under the authority of a writ of possession - is too well established to allow for an exculpatory plea of ignorance of the law from a solicitor purporting to act in this area of the law. The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence. A majority of the persons in Metropolitan Toronto live in rented accommodation. The public interest in avoiding self-help remedies is obvious and the public policy is clearly reflected in the legislation. It is not tolerable that solicitors, or other representatives of landlords or tenants, whether through ignorance or defiance, countenance, counsel or assist with illegal activities such as those carried out in this case by Diane and Steve Divitcos.

66. In addition to the arguments based on the relevant provisions of the Mortgages Act and the Landlord and Tenant Act referred to above, the moving parties also rely upon the provisions of rule 60.10(2) of the Rules of Civil Procedure which states:

The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.

75 It is submitted on behalf of the respondent mortgagee that the premises here in question, while clearly residential in the sense that they are not used for any other purpose, are excluded from the operation of Part IV of the Landlord and Tenant Act by virtue of subdiv.1(e) of that Act, which excludes from the definition of "residential premises" in that Act (which definition and exclusion are adopted and made applicable to Part V of the Mortgages Act ) premises described as follows:

(e) premises whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent, or the spouse's child or parent, where the owner, spouse, child or parent lives in the building in which the premises are located,

I observe that the words "required to share ... a kitchen" require some interpretation. In my view, they mean that the only kitchen available for use by an occupant is one which another occupant is also entitled to use. An applicant may of course avoid sharing by simply not using the kitchen facilities. There is no mandatory requirement that he use them.

77. Each of Steve and Diane is a child of the owners, and the owners live in the building. The premises are therefore premises described in subdiv.1(e), and therefore are excluded from the term "residential premises". It follows that the provisions of the Mortgages Act and the Landlord and Tenant Act , which are applicable only to residential tenancies as defined, do not apply to the premises here in question.

78. Although the argument is admittedly quite technical I find it to be technically correct. And I find that the equities in this case so favour the respondents that I have no reluctance to accept the technical argument. I accept it as a second ground or reason for the dismissal of the motion.

Rossiter et al v. Swartz and Swartz, 2013 ONSC 159 (CanLII)

V. ANALYSIS OF CLAIM BASED ON THE DOCTRINE OF OCCUPATION RENT

[40] Occupation rent is an equitable remedy which may be claimed in circumstances where a person is in occupation of the land of another. The principle of occupation rent has been described by the Ontario Court of Appeal in Young v. Bank of Nova Scotia in the following terms:

If a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of this land.

[41] The principle of occupation rent is founded on the presumption that the parties have agreed that the occupier will pay a reasonable amount of compensation for their use of the land. This presumption can be rebutted by evidence indicating that the parties intended that the occupier use the land without an expectation of providing compensation.[27]

Newman v. Glanville, 2019 ONSC 1040 (CanLII)

[1] Mr. Newman owns a house which is located at 446 Whitmore Avenue in Toronto. Cedric Glanville became a tenant in Mr. Newman’s home in August, 1994. It appears that the two friends never did have a written lease but Mr. Glanville paid his rent weekly and they shared the house for many years.

[2] Mr. Newman now applies under rule 14.05 for an order to evict Mr. Glanville.

[3] Mr. Newman has filed an affidavit in which he indicates that he first gave written notice to Mr. Glanville to leave the house back in 2010. He has repeatedly asked him to leave since then but Mr. Glanville has refused. In the interim, Mr. Glanville has begun to drink heavily and makes no effort to clean up after himself. He has not paid his rent since March 9, 2018 and he refuses to pay his arrears despite repeated requests by Mr. Newman.

[4] Mr. Newman served a written Notice of Eviction on Mr. Glanville on August 8, 2018. The Notice gave Mr. Glanville 60 days to vacate the house. The notice clearly set out the reasons for the eviction including the failure to clean garbage from the home, a refusal to clean the bathroom leaving it in “a disgusting state” and the excessive use of utilities. Notwithstanding a very reasonable notice period, Mr. Newman has not vacated the house.

[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:

a. order the payment of rent;

b. make a costs order;

c. award damages: and

d. issue injunctive relief to restrain any future breach of the lease agreement.

[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.

[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.

[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.

[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.

[14] There will be an order declaring that the lease was terminated on October 8, 2018.

[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019.

Foster v. Lewkowicz, 1993 CanLII 8610 (ON SC)

Landlord and tenant -- Residential tenancies -- Definition of "tourist home" under Landlord and Tenant Act -- Respondent renting furnished room including kitchen on a daily basis to guests who signed guest registration agreement -- Respondent renting room to applicant -- Respondent denying applicant re- entry to room -- Applicant applying for relief under Part IV of the Act -- Respondent not establishing exemption for tourist home -- Applicant entitled to writ of possession -- Landlord and Tenant Act, R.S.O. 1990, c. L.7, s. 1 "residential premises" (g).

Under a "Guest Registration" agreement F resided at the respondents' premises in the City of Toronto from August 1992 to January 1993, when the respondents without notice changed the lock on F's furnished room and denied him re-entry. F's room, which included a kitchen, was in a four-storey brick building, which bore the sign "Windsor House" and which comprised several apartments and rooms that were rented by the respondents for periods ranging from days to months. Occupants were provided with bed clothes, but there was no room-cleaning service. Under the guest registration agreement, F agreed to house rules, paid on a daily basis, could vacate without formal notice, and acknowledged that his status was the same as a guest in a hotel under the Innkeeper's Act, R.S.O. 1990, c. I.7. F applied for an order that his room was "residential premises" under Part IV of the Landlord and Tenant Act, and he applied for a writ of possession. The respondents' position was that they were exempt from the Act under s. 1 "residential premises" (g) as operators of a "tourist home."

Held, the application should be granted and a writ of possession should be issued.

9. The premises support a sign which reads "Windsor House" and are located in a four-storey brick building comprised of several apartments and single rooms which are rented for periods ranging from days to months. For the period, the applicant occupied a furnished self-contained unit which included a kitchen and bathroom.

ument     Foster v. Lewkowicz, 1993 CanLII 8610 (ON SC) Document History (0) Cited documents (16) Cited by (1) CanLII Connects (0)  PDF Date: 1993-06-28 Other citations: 14 OR (3d) 339 — [1993] OJ No 1537 (QL) Citation: Foster v. Lewkowicz, 1993 CanLII 8610 (ON SC), <http://canlii.ca/t/g16n8>, retrieved on 2020-05-10

Foster v. Lewkowicz et al. [Indexed as: Foster v. Lewkowicz] 14 O.R. (3d) 339

[1993] O.J. No. 1537

Action No. 93-LT-48659

Ontario Court (General Division),

Hayes J.

June 28, 1993

Landlord and tenant -- Residential tenancies -- Definition of "tourist home" under Landlord and Tenant Act -- Respondent renting furnished room including kitchen on a daily basis to guests who signed guest registration agreement -- Respondent renting room to applicant -- Respondent denying applicant re- entry to room -- Applicant applying for relief under Part IV of the Act -- Respondent not establishing exemption for tourist home -- Applicant entitled to writ of possession -- Landlord and Tenant Act, R.S.O. 1990, c. L.7, s. 1 "residential premises" (g).

Under a "Guest Registration" agreement F resided at the respondents' premises in the City of Toronto from August 1992 to January 1993, when the respondents without notice changed the lock on F's furnished room and denied him re-entry. F's room, which included a kitchen, was in a four-storey brick building, which bore the sign "Windsor House" and which comprised several apartments and rooms that were rented by the respondents for periods ranging from days to months. Occupants were provided with bed clothes, but there was no room-cleaning service. Under the guest registration agreement, F agreed to house rules, paid on a daily basis, could vacate without formal notice, and acknowledged that his status was the same as a guest in a hotel under the Innkeeper's Act, R.S.O. 1990, c. I.7. F applied for an order that his room was "residential premises" under Part IV of the Landlord and Tenant Act, and he applied for a writ of possession. The respondents' position was that they were exempt from the Act under s. 1 "residential premises" (g) as operators of a "tourist home."

Held, the application should be granted and a writ of possession should be issued.

To determine whether Part IV of the Landlord and Tenant Act applied, it was unnecessary to determine where F and the respondents had a landlord and tenant relationship; the Act applied to premises used for residential purposes, and the respondents had the burden of satisfying the court on a balance of probabilities that they were entitled to the benefit of an exemption under s. 1 "residential premises" (g) of the Act. So, the focus of inquiry should not be on whether the premises were residential but on whether they were a "tourist home", which term was not specifically defined in the Act or the jurisprudence. In determining whether the premises were exempt as a tourist home, relevant factors were the intention of the parties and the overall nature of the premises, which was to be determined using a predominant purpose test. A consideration of the wording of s. 1 "residential premises" (g) of the Act, which referred to "accommodation provided to the travelling and vacationing public" and a review of dictionary definitions and other legislation showed that the term "tourist home" had a sense of non-permanence and transience and the element that the premises must cater to those in the course of vacationing or travelling. Therefore, a "tourist home" is a temporary place where one would reside on a transient or non-permanent basis in the course of travelling or vacationing. The evidence did not establish that the premises in this case were accommodation provided to the travelling or vacationing public. As the respondents failed to establish an exemption, Part IV of the Act applied to the premises.

APPLICATION under s. 113 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7, for a writ of possession by a tenant.

Cases referred to 552838 Ontario Ltd. v. London Executive Suites Inc. (1992), 36 A.C.W.S. (3d) 1206 (Ont. Gen. Div.); Canadian Pacific Hotels Ltd. v. Hodges (1978), 1978 CanLII 1371 (ON SC), 23 O.R. (2d) 577, 96 D.L.R. (3d) 313 (Co. Ct.); Curtis Property Management v. Rezai, Ont. Dist. Ct., March 28, 1989; Degasper v. Bateman (1990), 10 R.P.R. (2d) 56 (Ont. Dist. Ct.); Hahn v. Kramer (1979), 1979 CanLII 2111 (ON SC), 23 O.R. (2d) 689, 97 D.L.R. (3d) 141 (Div. Ct.); Keith Whitney Homes Society v. Payne (1992), 1992 CanLII 7691 (ON SC), 9 O.R. (3d) 186, 24 R.P.R. (2d) 88 (Gen. Div.); Koressis v. Turner (1986), 1986 CanLII 2633 (ON SC), 54 O.R. (2d) 571, 27 D.L.R. (4th) 638, 16 O.A.C. 371 (Div. Ct.); Lanthier v. 963324 Ontario Ltd. (1992), 37 A.C.W.S. (3d) 260 (Ont. Gen. Div.); R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155, 45 O.A.C. 309 (C.A.); Ramsay v. Heselmann (1983), 1983 CanLII 1711 (ON SC), 42 O.R. (2d) 255, 148 D.L.R. (3d) 764 (Div. Ct.) Statutes referred to Innkeeper's Act, R.S.O. 1990, c. I.7 Landlord and Tenant Act, R.S.O. 1980, c. 232 [amended 1987, c. 23, s. 1], s. 81 "tenancy agreement" [amended idem, s. 2] Landlord and Tenant Act, R.S.O. 1990, c. L.7, Part IV, ss. 1 "residential premises" (a), (g), (i), 113(2) Rent Control Act, 1992, S.O. 1992, c. 11, s. 3(1)(a) Rental Housing Protection Act, 1986, S.O. 1986, c. 26 Residential Tenancies Act, R.S.O. 1980, c. 452, s. 4(a) Tourism Act, R.S.O. 1990, c. T.16, s. 1 "tourist establishment" Authorities referred to Black's Law Dictionary, 6th ed., definitions "lodger", "lodging place", "roomer" Shorter Oxford English Dictionary (Oxford: University Press, 1973), definition "tourist"

James Iliffe (student at law), for applicant.

Sam Lewkowicz, for respondents.

19930628

HAYES J.:--This is an application made under s. 113 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7 (hereinafter the "Act"), for the following relief:

(a) a determination that the premises known municipally as Apartment 103, 320 Roncesvalles Avenue in the City of Toronto are "residential premises" and are therefore subject to the application of Part IV of the Landlord and Tenant Act;a writ of possession;

(c) an abatement of rent or in the alternative;

(d) an award for damages; and

(e) costs.

I. THE FACTS

The matter proceeded by way of oral evidence, written submissions and oral submissions.

The proceedings were commenced by a notice of application in Form 7, pursuant to s. 113 of the Act, by the tenant, David Foster. The application is indicated as being issued by the local registrar on January 22, 1993, one day after the termination of the applicant's possession of the premises.

I find from the evidence and the exhibits filed the following facts:

1. The applicant, David Foster, resided at the respondents' premises, 320 Roncesvalles Avenue, Apartment No. 103, for the period from August 22, 1992, to January 21, 1993. On the latter date, the respondents changed the locks to the applicant's unit and refused to allow the applicant to regain possession despite the applicant's efforts in that regard.

2. Upon the commencement of the applicant's stay on the premises, on August 22, 1992, he signed an agreement described as a "Guest Registration" on August 22, 1992.

3. The Guest Registration set out a number of conditions including the following:

The undersigned hereby acknowledges and agree that they are Guest(s) only and that their status is the same as if they had checked into any hotel or motel in Ontario. It is further understood and agreed that the provisions of the Innkeeper's Act c. 217 are applicable. This allows the management to remove Guests immediately for non-payment and/or breaking of the House Rules as well as exercising distress on items brought into the premises.

(Emphasis added)

4. The respondents posted a notice under the Innkeeper's Act, R.S.O. 1990, c. I.7, on the door to Unit 103. The card indicates the room rate, check-out time and the top of the card indicates "guest house and tourist home notice to guests".

5. House rules were provided to the applicant at the time he checked in including the following:

The Respondent had free access, without notice to enter the unit; pets were prohibited; occupants could not change the unit by bringing in furniture or installing telephones or cable T.V.; and any occupants could be removed at the management's discretion.

6. At the time of check-in the applicant provided 10 Humber Boulevard as his permanent address.

7. The applicant paid rent on a daily basis. The rent ranged from $15 - $20 and included the cost of heat, hydro and gas. The applicant paid each day for his unit and each time he was given a receipt indicating the check-out date and time as noon the next day.

8. The applicant was not required to give any formal notice prior to vacating.

9. The premises support a sign which reads "Windsor House" and are located in a four-storey brick building comprised of several apartments and single rooms which are rented for periods ranging from days to months. For the period, the applicant occupied a furnished self-contained unit which included a kitchen and bathroom.

10. From the evidence the following points summarize the character of the apartments: The building does not have a reception area or desk, however, daily payment of rates and receipts are provided on the premises by Mr. Ben Windsor. There is no central phone system and there are no phones in the units; however, phones were provided in a common area. Each apartment has its own suite key and front door key and its own door buzzer and entry system. The respondents did not provide any type of room or cleaning service; however, the occupants were provided with sheets, pillowcases, soap and toilet paper which they picked up from the respondents. The applicant indicated that he considered he was using the premises for residential purposes.

11. Evidence adduced by the respondents demonstrated the pattern of occupancy for Unit 103 from March 25, 1992 to February 21, 1993. This evidence demonstrated that there were 17 registrations over 305 days and that the average stay was approximately two-and-a-half weeks. When the applicant's 152-day occupation is excluded, the average stay of the remaining 16 registrations in Unit 103 is reduced to 9.6 days.

12. The applicant had paid his rent on Jawuary 20, 1993 and he was evicted on January 21, 1993 when the respondents refused to accept his rent on January 21, 1993.

13. The applicant was evicted on January 21, 1993,

(a) without notice of termination;

(b) without notice of application to determine what he considered to be a tenancy;

(c) without an order terminating what he considered to be a tenancy; and

(d) without the authority of a writ of possession.

The applicant did not willingly nor freely vacate or abandon the demised premises but sought protection from the police in an attempt to prevent the eviction.