Evicting a Superintendent

Langer Properties v. Langer, [1998] O.J. No. 515

3. The situation is entirely different from that in the Rondinelli case that the appellant relies upon. There, the landlord made an arrangement with a tenant who had occupied premises other than as a caretaker whereby that tenant would perform caretaking operations upon the property in return for a reduction in rent. That tenant had the security of the provisions of the Landlord and Tenant Act at the time that the arrangement was made with him on an ad hoc basis by the landlord

4 In this case, as I have mentioned, the appellant was a manager of other premises at the time he took occupancy at 66 Lowther and became a manager of 66 Lowther in the ordinary sense of the word as soon as the other apartments were occupied. In our judgment, however, he was a manager from the outset in that he was taking care of a property that was being renovated to accommodate residential occupancy.

5 In these circumstances, in our opinion, the landlord was entitled to terminate the tenancy agreement, such as it was, with David Langer under the provisions of section 115(1) of the Landlord and Tenant Act. Accordingly the appeal is dismissed.

Maystar Holdings v. Isufaj, (2000)

10. On July 4, 2000, Mr. Isufaj was injured while performing the duties of his employment, specifically suffering an injury to his back and to his foot. He immediately reported this injury to the on-site assistant manager, Detty Jurca. The Landlord did not report this injury to the Workplace Safety and Injury Board (WSIB), and Mrs. Jurca told Mr. Isufaj to seek medical attention, which he did. Mr. Isufaj received initial medical advice to rest for two days, but this was rejected by Mr. Kasmani, who insisted that he continue to perform his duties, failing which he would be out of a job. Mr. Isufaj, a recent immigrant to Canada, was not aware of the availability of a claim under workers' compensation legislation, and he continued to work for several weeks, notwithstanding his continuing injuries.

12. On August 21, 2000, Mr. Isufaj advised his superiors that he was unable to perform certain of his duties, specifically the taking out of the garbage. The Landlord terminated his employment verbally that very day, and this was confirmed by a letter of the same date, requesting that the rental unit be vacated within two weeks.

14 The Tribunal has no jurisdiction to determine the propriety of the Tenant's dismissal from his employment. The parties agreed and the evidence confirmed that the Tenant's employment with the Tribunal was terminated on August 21, 2000. As to whether this was a wrongful dismissal or not is a matter which is beyond the jurisdiction of the Tribunal. Section 68 of the Act is unequivocal, that the tenancy terminates when the employment terminates, and the Tenant shall move out within one week thereafter. However, I cannot accept the argument of the Landlord's representative that section 68 supersedes section 84 and that, in the case of an Application relating to superintendent's premises, the Tribunal has no discretion to consider the relief from eviction provisions of section 84. The jurisdiction given to the Tribunal by sub-section 84(1) relates to "an application for an order evicting a tenant or subtenant", and does not distinguish among different types of rental units nor make any exception for rental units which are occupied as superintendent's premises. Moreover, sub-section 84(1) is clear that this jurisdiction conferred on the Tribunal exists "despite any other provision of this Act or the tenancy agreement." There exists on the facts of this case, as set out above, an obligation to consider the relief from eviction provisions of section 84

15 When Mr. Isufaj refused to take out the garbage on August 21, 2000, this constituted a work refusal, pursuant to the Occupational Health and Safety Act. This, coupled with the letter from Dr. Siddiq of August 18, 2000, was a clear indication to the Landlord that Mr. Isufaj was attempting to enforce his legal rights. This was the reason, based on the evidence before me, that he was terminated and that this Application was brought by the Landlord.

16 Therefore, an Order should issue dismissing the Application.

18 However, since the Application is being dismissed, I have no discretion to order the Tenant to pay rent or compensation to the Landlord. There is no jurisdiction in the Tribunal on a Landlord's Application to "make any other order that it considers appropriate." Such discretion only exists on a Tenant's Application, as prescribed by sections 34 and 35 of the Act. The discretion set out in sub-section 190(1), that the Tribunal may include in an order whatever conditions it considers fair in the circumstances" does not confer as wide a discretion on the Tribunal as sections 34 and 35, since the operative word "conditions" presupposes that a term may be included in an order as a condition of some other term being ordered or not ordered. In a case, as here, where the Application it is being dismissed, not due to the exercise of discretion but because it is statutorily mandatory to do so (pursuant to sub-section 84(2)(c)), the inclusion of a condition in the Order is not available to the Tribunal.