Roommates (RTA)

TSL-69895-16 (Re), 2016 CanLII 39824 (ON LTB)

15. The issue in this application is whether the Tenant has transferred occupancy of the rental unit to a person without the authorization of the Landlord. The essential fact at issue in this application is whether the Tenant continues to occupy the rental unit, given that she is away from the rental unit so frequently.

16. The Landlord relies on Samuel Property Management v. Nicholson (2002), 61 O.R. 3d. 470 (C.A.), (hereinafter Nicholson).

17. In Nicholson, the tenant rented the main floor and basement of a house from the University of Toronto. He constructed a self-contained bedroom in the basement and rented the main floor to two friends for a little more than the rent the Landlord charged for the rental unit. The tenant lived with his family in the suburbs and stayed in the basement bedroom from time to time when he was in the city for business. The Court of Appeal upheld the Ontario Rental Housing Tribunal’s finding that he had transferred occupancy of the rental unit to his friends. The Court observed that the tenant’s limited use of the rental unit made it impossible to conclude that he had not transferred occupancy of the unit.

18. In Nicholson, the Court affirmed that whether a transfer had taken place is a question of fact and degree and focussed on whether the unit was in truth the home of the tenant. In this case, the Tenant has lived in the unit for approximately 10 years. The Tenant has a roommate who she charges rent but that is reasonable in the circumstances and she does not charge more rent than is charged by the Landlord. There was no evidence at the hearing that the Tenant owns a home or rents a home elsewhere. The Tenant’s belongings remain in the unit. Although the Tenant is frequently away, she has no home other than the rental unit.

19. I am therefore not satisfied that the Tenant transferred the tenancy to an unauthorized occupant. The Landlord’s application must be dismissed.