Hotel Room (Rental Unit)

TST-64688-15-RV-IN-AM (Re), 2017 CanLII 9473 (ON LTB)

4. The Tenants in response to the on-line advertisement contacted the Landlord to inquire about renting a two bedroom unit on the third floor of the complex for the entire school year. The Landlord and Tenants RG and JA signed a “Booking Agreement” which outlines the term of the agreement including the duration August 21, 2014 to May 21, 2015. The total amount the Tenants were to pay for the nine month stay is $17,010.00 payment to be made in four installments. The document also sets out what is provided or not, amounts for key and damage deposits, and costs associated with overnight guests.

18. In Matthews v. Algoma Timberlakes Corp. while the Court of Appeal for Ontario considered the proper interpretation of the Act and its applicability to land leases for recreational land lease homes, the Court, nonetheless, engages in an extensive analysis of the applicability of subsection 5(a) of the Act and the appropriate interpretation in connection therewith. While some of the facts in Matthews v. Algoma Timberlakes Corp. are certainly different from those in the instant case, in keeping with Glanville Williams, above, it is the ratio decidendi [reason of deciding] of a case, the material facts of the case plus the decision thereon that matters. Moreover, the Court in Matthews v. Algoma Timberlakes Corp. does, at paragraphs 28, 29 and 33 to 35, inclusive, and as will be referred to below, directly address the very relevant issue of whether a type of occupation is for a temporary period, which issue is at the heart of the Member’s decision in the instant case.

22. In my view, the unit herein meets the definition of a “rental unit”. That is, the unit was “living accommodation” and intended for use as “rented residential premises”. The Tenants lived in the unit and the unit contained a sleeping and living area. No evidence was presented that the Tenants, during the time that they lived in the unit, engaged in activities other than what people ordinarily do in a residential unit.

23. With respect to the unit being “rented residential premises”, I am satisfied, based on the evidence presented, that this requirement is also met. There is no suggestion that the unit was “commercial”. More importantly, the Tenants paid rent to the Landlord in order to be entitled to occupy the unit and, as such, the unit was “rented”.

27. I agree with Tenants’ counsel that to give effect to the scheme and the object of the legislation and in keeping with the intent of the Legislature, section 5(a) must be interpreted narrowly so as not to carve out too large a segment and bring housing, which the Act was intended to protect, within its ambit. This position is supported by Grenadier (Tenants of) v. We-Care Retirement Homes of Canada, (1993) O.J. No.1550 (Div. Court.) where the Divisional Court for Ontario stated, in part, as follows:

“3. With great respect, and recognizing that the matter is by no means beyond doubt, I have concluded that, given the remedial nature of this legislation, the language of the whole clause, the burden on one who seeks to invoke an exemption, the opportunities for abuse opened up by a lesser standard and the use of the words “the purpose” (emphasis added) in the section, it was the legislature’s intent to exempt accommodation only where the enumerated purpose is the primary reason why the occupant is occupying that particular accommodation.”

29. Tenants’ counsel further submitted that an appropriate interpretation of subsection 5(a), as it generally applies, would involve the phrase “seasonal or temporary period” being assisted by “travelling or vacationing public” and “vacation home” being analogous to a hotel, motel and the other accommodation examples listed and such interpretation would bring the analysis within the narrow scope of the exemption sought to be achieved by the Legislature and leave out the vast majority of occupations, which the Act aims to protect. In my view, the noscitur a sociis rule, which permits the determination of the meaning of a term through its relation to other terms, is not applicable here. In R. v. Daoust, (2004) 1 SCR 217, 2004 SCC 6 (CanLII), the Supreme Court of Canada stated, in part, as follows:

61.In the present case, the words “conceal” and “convert” are not part of a list. On the contrary, they are two distinct terms with distinct meanings. This is demonstrated by Parliament’s use of the expression “with intent to conceal or convert”, as the use of the word “or” shows an intent to distinguish the two terms from each other. For this reason, these two terms should not be read together, and the noscitur a sociis rule does not apply. [Emphasis added]

31. What is required is a purposive and plain reading of subsection 5(a) of the Act and such sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis) and (3) be situated in a hotel, motel, bed and breakfast or other listed establishment

34. This is consistent with Curtis Property Management v. Rezai (unreported, March 28, 1989, Ont. Dist. Ct.), where Justice Conant found that a rented hotel room fell within the realm of “rented residential premises” based on a number of factors, including: whether the occupant had demonstrated an intention to reside there on a "somewhat permanent basis" (i.e., having moved in what most people might consider fixtures, such as stereo equipment, rugs, pictures lamps, etc.); whether typical hotel services (e.g. room service and cleaning) were included; and, the degree of control the occupant had over the suite or, conversely, whether the owner was free to enter the unit at will. In his reasons, Conant, J. wrote that, “If the premises are residential, then the landlord's calling the building a ‘hotel’ was an invalid attempt to evade the provisions of the [then] Landlord and Tenant Act.”

38. In light of all of the evidence submitted, and the submissions of the parties, I do not find that the Landlord met its evidentiary burden to demonstrate, on the balance of probabilities, that the exemption at subsection 5(a) of the Act applies to this residential accommodation. Therefore, I am satisfied that there is a serious error in the order and the Tenants’ request for review must be granted.

SWT-94673-16 (Re), 2016 CanLII 88156 (ON LTB)

2. This jurisdictional issue arose when F.P. informed the Applicant on October 9, 2016 that her room was no longer available and that she would be required to vacate the unit immediately. This notice of termination would not comply with the notice requirements of the Act. However, the Respondent takes the position that the Act does not apply since the residential complex is a motel.

3. Notwithstanding that the Applicant filed this application, if a party takes the position that the premises in question are subject to an exemption from the Act, the burden of proof is on the party claiming the exemption.[1] As a result, in this instance, the Respondent bears the evidentiary onus to prove that the Act does not apply.

7. F.P. was present when the Applicant moved into the unit on September 1, 2015 and described this process as “checking her in.” He testified that the Applicant was informed at this meeting that the complex was a motel. While she did not recall receiving this information, she also could not contest F.P.’s evidence on this point. She acknowledged that she was required to sign a guest card when she first moved into the complex and did not question why she was required to sign this document upon moving into the unit. F.P. testified that all guests are required to sign these cards upon continuation of their occupancy. However, the evidence indicated that the Respondent may not have consistently required the Applicant to sign a new card on the first of every month since September, 2015. Her uncontested recollection was that she signed approximately six subsequent guest cards on a monthly basis since moving into the unit.

10. Section 202 of the Act requires the Board to “ascertain the real substance of the activities” relating to the occupancy and to do so disregarding “the outward form of [the] transaction.” Accordingly, a term in the lease, or in this case, a verbal declaration that the Act does not apply, will not have the effect of avoiding the application of the Act, provided that the premises otherwise fit within the statutory definition of a “rental unit.” Similarly, the City’s policy with respect to zoning cannot be equated with evidence that the premises are exempted from the Act if the circumstances of the residency indicate otherwise.

13. By this principle, each of the exclusions in subsection 5(a) of the Act must be read in the context of the provision as a whole. The premises at issue must provide “living accommodations,” that are “intended to be provided to the travelling or vacationing public” or, for the same purposes, “occupied for a seasonal or temporary period.” In other words, if the rental unit falls under either of these clauses, it may be excluded from the protection of the Act, pursuant to subsection 5(a) of the Act.

14. In the present case, because the rental unit is the Applicant’s sole residence, she cannot be deemed to be a member of the “travelling or vacationing public.” As a result, the first clause of the exemption does not apply to this living accommodation.[5] The Respondent therefore necessarily relies upon the latter clause of the exemption that lists a number of included living situations that are “occupied for a seasonal or temporary period.” Unlike the first clause of the exemption, this clause does not consider the intent of the parties, but rather their actual conduct in relation to the premises.

15. It is the use made of the particular rental unit which must be considered, not the overall use of the building or complex.[6] In other words, if other units in the residential complex are used in a different manner compared to the Applicant’s residence, this is not determinative of whether the exemption applies to her unit.[7] Similarly, while the complex may be zoned for specific uses, the actual conduct of the parties may or may not conform to these restrictions. Furthermore, it is the current occupant’s use of the rental unit that is at issue, rather than the past history of the unit. In the present situation, the evidence indicated that the Applicant’s use of the rental unit remained consistent from September 1, 2015 to the date of the hearing.

16. Supporting the Applicant’s contention that the Act applies, there was no limitation on the duration that the Applicant may occupy the premises, no daily housekeeping service and no sales tax added to the monthly charge collected each month. All of these factors strongly suggest a tenancy rather than a seasonal or temporary accommodation.

17. The primary variable upon which the Respondent relied to characterize the premises as a motel was the guest card presented to the Applicant more or less each month. However, the evidence at the hearing indicated that this policy was not strictly enforced as the Applicant signed the cards in some months, but not in others, roughly half for the thirteen months of the occupation to the date or the hearing. There was also no cogent evidence submitted that failure to sign the card in a given month would necessarily lead to termination of the residency.

18. F.P. testified that provided the Applicant paid her monthly charges or otherwise refrained from disruptive conduct, she would be welcome to extend her occupation month after month. This rather unexceptional policy is consistent with a residential tenancy and further underscores the conclusion that continuous occupation does not depend on signing the guest card. As a result, I do not find that the guest card policy places this accommodation outside of a residential tenancy accommodation.

19. In light of all of the evidence submitted, I do not find that the Respondent met its evidentiary burden to demonstrate on the balance of probabilities that the exemption at subsection 5(a) of the Act applies to this residential accommodation.

CET-70868-17 (Re), 2018 CanLII 41829 (ON LTB)

3. JA also requested a dismissal of the application as the application was filed by a number of parties, who each have their own contract and/or rental agreement for occupation of different rooms at the motel/resort. This was not disputed by the Tenant or the other parties. JA argued that each party ought to bring their own application given their differing living accommodations and contracts.

10. This type of application is fact driven and I am not bound by prior orders of the Board regarding different living accommodations at this property. However, I would agree that consistency in decision making is very important in the same fact situation in regards to maintaining fairness. The facts in CET-37930-14 were not similar to the facts stated in this application. In particular, the tenant in CET-37930-14 did not dispute it was a temporary occupancy.

23. In accordance with the exemption stated in subsection 5(a) of the Act, the following relevant factors are required: accommodation intended for the traveling or vacationing public, seasonal or temporary, and in a motel or resort. All three factors must exist for the exemption to apply.

24. Firstly, based on the evidence before me, I am not satisfied that the Tenant was travelling or vacationing when she rented the unit. Nor am I satisfied that this accommodation was intended for the travelling or vacationing public. The Tenant inquired with the manager and was given the impression that a long term occupancy was acceptable.

26. As well, I am not satisfied that this living accommodation was for a seasonal or temporary period. The Tenant has resided in the unit for over a year, four months of which have been without signing the Landlord’s required monthly contract. The dictionary definition of seasonal “relates to the characteristics of a particular season” or “fluctuating or restricted according to the season or time of year.” The Tenant has continued to occupy the unit for the last year including the Landlord’s stated busy season. She was not restricted to occupying the unit for a particular season or time of year.

27. The dictionary defines temporary as:

Lasting for only a limited period of time; not permanent

28. Simply by limiting the number of days the Tenant may occupy the premises to a maximum of 31 days in the contract, does not make this occupancy temporary. Especially, since the contract was renewed on a continuous basis.

31. The Board must still apply the legal test to the exemption raised on a case by case basis while acknowledging that there is other legislation, namely the zoning By-Law that may be applicable for the same property. For example, there is a municipal By-Law for the City of Brampton that requires a secondary unit in a single family dwelling to be registered. Very often parties enter into occupation/tenancy agreements regarding a basement unit in this municipality that is not registered. It would be absurd for the Board to accept that because the unit does not conform to this By-Law the tenancy created is exempt from the Act. In this scenario presented, the property may be zoned Tourist Commercial but it doesn’t mean that the Act doesn’t apply to this occupancy.

It is ordered that:

The Act applies.

TET-56104-15 (Re), 2015 CanLII 35724 (ON LTB)

10. The Tenants’ evidence is that when they moved into their respective units they intended to treat their units as their long-term permanent homes and that this fact was communicated to the previous landlord when they took possession of their units. They moved in with all of their possessions, with the exception of possessions that could not fit in the units and were kept in storage, and listed the Inn as their home address for the purpose of their financial and legal affairs. None of the Tenants had any other residence from the time that they took possession of their respective units at the Inn.

15. The Landlord testified that he did not speak with the previous landlord about the particulars of the tenancy agreements agreed to with the Tenants. He further testified that the Inn charges extra for laundry facilities, that there are no telephones or televisions, provided by the Inn, in the Tenants’ units and that no notice, pursuant to the Innkeepers Act, is posted on the premises. The Landlord also testified that, as of the date of the hearing, he had not yet repaired the electric exterior signs bearing the Inn’s name and that while the Inn is in “the process of building relationships” with some online travel sites it does not have its own website.

18. A plain reading of subsection 5(a) of the Act sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis); and (3) be situated in a in a hotel, motel or motor hotel. I would further interpret the subsection to require the presence of all three elements for an exemption to exist. The onus is on the Landlord to prove the exemption.

19. There is no issue as to the first element—that of the Tenants’ units being living accommodation. The more significant issue is the second part of the second test (as I am satisfied that the Tenants are not travelling or vacationing public): were the units occupied for a seasonal or temporary period? I find, on a balance of probabilities, that the intention of the Tenants and the previous landlord upon entering into tenancy agreements was that the accommodation would be long-term and permanent. This was the evidence of all Tenants corroborated by their uncontradicted evidence that they had no other residence, moved all of their belongings into the units, listed the address of the Inn as their home address for the purpose of their financial and legal affairs, received their mail at the Inn’s postal address and listed the Inn’s address on their drivers licences.

20. The Landlord’s evidence was that he did not speak with the previous landlord about the particulars of the tenancy agreements agreed to with the Tenants. As purchaser of a new rental complex the Landlord should have used due diligence in obtaining all relevant information about the tenancy agreements of existing tenants

21. A landlord cannot change the character of a tenancy to exempt it from the Act. Simply because the Landlord may have been advised by the previous landlord and real estate agent that the Inn was covered by the Innkeepers Act or because the agreement of purchase and sale states that the “residing tenants” would have to make arrangements with the new owner as any agreements with the previous owner ended on the day of closing of the transaction or, as the Landlord testified, because he has a “different operating philosophy”, does not make the Inn exempt from the Act.

22. Moreover, Section 202 of the Act requires that I look at all of the circumstances in making determinations and I find that the evidence before me, especially the intention of the parties to the original tenancy agreement, is indicative of long-term permanent tenancies entered into between the Tenants and the previous landlord to which the Act applies and which, by operation of Section 18 of the Act, run with the land and must be honoured by the current Landlord.

TET-90433-18-IN (Re), 2018 CanLII 113775 (ON LTB)

1. At the hearing a preliminary issue was raised by the Landlord. The Landlord submits that the Residential Tenancies Act, 2006 (the ‘Act’), does not apply to the Tenant’s unit.

2. The residential complex is a motel which includes individual units as well as motel units. It has 52 units in total with the longest running tenancy being 15 years, some as long as 8 or 9 years, and some are short term/temporary. Rates can be daily, weekly or monthly.

3. The Landlord submits that the Tenant switched to a temporary dweller. The Landlord supports the contention that the Act does not apply to the Tenant’s situation by asserting that the rental unit comes with housekeeping services and the Tenant changed from a monthly rental to a daily rate as he had no intention of being anything but a temporary dweller.

4. The Tenant testified that he had every intention of staying in the unit long term. He had been living on the streets in an abandoned car after he lost his housing with his mother at 1 Massy Square prior to coming to the motel in December 2017. He testified that when he came to the motel in December 2017 he entered into a monthly rate. This changed in March 2018 as he was short on his rent. He states that his intention was always to remain long term.

6. The exemption the Landlord seeks to rely on reads as follows: 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;

[Emphasis added.]

7. The wording of the exemption is interpreted to include two different situations: where the accommodation is intended for the travelling or vacationing public; or where it is in fact only occupied for a seasonal or temporary period. (See: Rogers v. Fisherman’s Cove Tent & Trailer Park Ltd., [2002] O.J. No 5942 (Ont. Div. Ct.).) In either situation the property itself must be one of the listed types.