Application for Abandonment (LTB)

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Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2024-11-10
CLNP Page ID: 2024
Page Categories: [Hearing Process (LTB)]
Citation: Application for Abandonment (LTB), CLNP 2024, <>, retrieved on 2024-11-10
Editor: Sharvey
Last Updated: 2022/11/29

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Residential Tenancies Act, 2006, S.O. 2006, c. 17[1]

37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

(2) If a notice of termination is given in accordance with this Act and the tenant vacates the rental unit in accordance with the notice, the tenancy is terminated on the termination date set out in the notice. 2006, c. 17, s. 37 (2).
...

39 A landlord shall not recover possession of a rental unit subject to a tenancy unless,

(a) the tenant has vacated or abandoned the unit; or
(b) an order of the Board evicting the tenant has authorized the possession. 2006, c. 17, s. 39.
...

79 If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy. 2006, c. 17, s. 79.

[1]

SWT-86973-16 (Re), 2016 CanLII 44311 (ON LTB)[2]

12. The Courts have consistently held that a landlord’s reasonable belief that the tenant has abandoned the rental unit, however genuine, is not sufficient authority to recover possession under the Residential Tenancies Act, 2006 (the 'Act'). Pursuant to section 79 of the Act, a landlord may apply for an order from the Board determining that the tenant has in fact abandoned the rental unit. The Landlord in the present case never sought such an order. Given the Tenant’s uncontested evidence that he informed P.S. on February 22, 2016 that he intended to remain in his room and continue the tenancy, on the balance of probabilities, I do not find that P.S.’s purported belief that the Tenant had abandoned the rental unit was even reasonable.

13. Section 39 of the Act limits the Landlord’s ability recover possession of the rental unit:

39. A landlord shall not recover possession of a rental unit subject to a tenancy unless,
(a) the tenant has vacated or abandoned the unit; or
(b) an order of the Board evicting the tenant has authorized the possession.

14. Pursuant to subsection 39(b), a landlord may recover possession of the unit if the Board has issued an order authorizing possession. Section 79 of the Act reads as follows:

79. If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy.

15. Since the Landlord never obtained an order from the Board authorizing possession, her only lawful route to recover of the unit must lie in subsection 39(a) of the Act. As the Ontario Divisional Court explained in George V Apartments v. Cobb, the terms “vacated or abandoned” in subsection 39(a) effectively have the same meaning.[3] “Vacant” implies entire abandonment and a state of non-occupancy for any purpose while “abandonment” means that the Tenant no longer intends to reside in the rental unit. Abandonment within the context of the Act therefore requires both an intention to abandon and clear evidence that this has in fact occurred.[4]

16. This avenue to recovery is considerably more precarious for the landlord than obtaining an order from the Board and requires clear and unambiguous evidence that the tenant has permanently vacated the rental unit and has no intention of returning. As the Court noted in George V Apartments:

Abandonment by the tenant is not established until some action is taken by the landlord. When faced with an empty unit, a landlord re-takes possession pursuant to s. 41(a) at some risk. The tenant may be working or vacationing elsewhere, sometimes for a considerable period. The landlord must be satisfied the tenant has left the unit and obviously has no intention of returning. Non-payment of rent is certainly a factor to be considered. The safest course for the landlord is to bring an application under s. 78 [now section 79]…[3]

17. While section 79 is discretionary in that the landlord may apply to the Board for an order terminating the tenancy, pursuant to subsection 37(1) of the Act, a tenancy may be terminated only in accordance with the Act. In other words, absent some action by the landlord, such as seeking an order under section 79 of the Act, the fact of abandonment does not terminate the tenancy.

18. As the Superior Court held in Borges v. Amici Holdings Ltd[5]., when a landlord has direct knowledge of a tenant’s intent to remain in the rental unit, as in the present case, the only proper method to retake possession is through an order.[5]


[2] [3] [4] [5]

References

  1. ↑ 1.0 1.1 Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17>, retrieved 11-29-2022
  2. ↑ 2.0 2.1 SWT-86973-16 (Re), 2016 CanLII 44311 (ON LTB), <https://canlii.ca/t/gsk4f>, retrieved on 2022-11-29
  3. ↑ 3.0 3.1 3.2 [2002] O.J. No. 5918 (Ont. Div. Ct.) (‘George V Apartments’). This case was decided under the prior legislation, the Tenant Protection Act, 1997 (the ‘T.P.A.’). Section 41 of the T.P.A. contained substantially identical wording as the present section 39.
  4. ↑ 4.0 4.1 Morguard Real Estate Investment Trust v. Pita Pazazz Inc., [2005] O.J. No. 2961 at para. 31 (Ont. Sup.Ct.).
  5. ↑ 5.0 5.1 5.2 Borges v. Amici Holdings Ltd., 1992 CarswellOnt 1952<File:Borges v Amici Holdings Ltd.pdf>, retrieved on 2022-11-29
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