Trespass to Property (LTB)

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

TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)

3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.

7. The Tenants vacated the rental unit on September 3, 2009 as a result of the N12 Notice. The Tenants initially told the property management company retained by the Landlord that they would vacate the rental unit by August 31, 2009. However, the Tenants were not finished packing by August 31, 2009. The property management company agreed to extend the deadline until September 1, 2009. On September 2, 2009 the Tenants were still loading their van. GB, who works for the property management company, changed the locks on the rental unit on September 2, 2009 without giving the Tenants a key, but told the Tenants they could have access to the rental unit for the rest of the day to finish packing. He asked the Tenants to call him when they were finished packing. Not having heard from the Tenants, he returned to the unit at approximately 2 a.m. and discovered that the Tenants were still inside the rental unit. He asked them to leave, and then locked the door. The Tenants spent the rest of night in their truck parked outside of house.

Determinations:

2. The Landlord’s agent altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenants replacement keys.

3. The Landlord’s agent entered the rental unit illegally

4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.

Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)

This is an application by the tenant for an abatement of rent under s. 113(1)(f) of the Landlord and Tenant Act, R.S.O. 1990, c. L.7.

The tenant alleges that the landlord breached the implied covenant for quiet enjoyment by harassing her with warning letters and other conduct by removing her right to a parking spot on the renewal of her lease, and by serving a notice on her boyfriend pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21, advising him that he was prohibited from entering the rental project. This last ground is the primary complaint and raises a difficult and apparently unresolved issue concerning the existence and interface of a right of a residential tenant to invite guests to visit or occupy the rented premises and a right of the landlord to restrict entry by such persons.

[...]

The Trespass to Property Act defines "occupier" this way:

1(1) In this Act,

"occupier" includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

even if there is more than one occupier of the same premises . . .

I have looked at a number of dictionary definitions which are general and varied. A common explanation of the meaning of "occupy" is "to reside in". By considering the situation of the owner of a home who resides part of the time at a second residence, it seems reasonable to conclude, as Black's Law Dictionary does, that for some purposes one can be an occupant of a residence even though not always present and even though one may be temporarily occupying another residence from time to time.

Further, when considering the purposes of the restriction on occupation under the government housing scheme it is clear that the restriction is not intended to prevent a tenant from having an occasional overnight guest. The terms of s. 2.1(11) of the lease also support this conclusion. Mr. Remark's letter of May 14 acknowledged that the landlord was not concerned with occasional overnight guests but rather with "regular guests for extended periods of time".

Much of the testimony related to whether it was accurate to describe Mr. Witter as "living with" Ms. Cunningham, as her "guest", as a "visitor", as "residing with" her and so on. It appears to me the only issue here is whether he was occupying the rented premises or proposed to do so and whether the landlord had the right to prohibit this: see Chin v. Dejager (1988), 29 O.A.C. 372 (C.A.) at para. 12.

It appears to me that it is not possible to formulate a precise definition of "occupancy" or "occupant" for this purpose. It is a factual question. In my view some of the factors which can be taken into account in characterizing the circumstances are the relationship of the person to the tenant (e.g., is it a relationship which is usually accompanied by cohabitation?), the frequency and length of the visits, the pattern of the visits, whether the visit lasts overnight, the nature of the association of the person and tenant when they are elsewhere (e.g., do they reside together when they are at other residences?), whether the person leaves belongings at the tenant's residence, whether the person uses the residence in the manner one would expect of an occupant.

On the evidence here I am satisfied that Mr. Witter was occupying the premises in contravention of the tenancy agreement before the service of the notice under the Trespass to Property Act.

[...]

First, I note that the shopping centre trespass cases cited (which are reviewed in Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.)), did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised: Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), (1976) 2 S.C.R. 520, 62 D.L.R. (3d) 749. The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.