Defining a Tenant

Arora v Wieleba, 2016 CanLII 37551 (ON SCSM)

18. In any event the execution of the second version of the lease in late August 2014 would appear to have no effect on the rights and obligations as between these two parties. The defendant was otherwise liable under the original lease and it is not apparent what exchange of consideration occurred between these parties to support the second version of the lease. Its net effect would appear to be nothing more than an agreement to change one of the four tenants other than her. The fact the plaintiff agreed to let another tenant (Ali) out of the original lease did not oblige him to release the defendant also.

Angela Foot v. Kenny Dias; Carlos Dias; Jason Stroud ONLTB TST-30893-12

1. In summary, I find the Tenant has no standing to bring this application as she is not a tenant of the rental unit. The Tenant agreed in a separation agreement with the Other Tenant that she is not a tenant, a position consistent with that of the Landlords. Disputes involving separation agreements are outside of the Landlord and Tenant Board's jurisdiction.

5. Subsection 9(1) of the Act provides only a tenant or a landlord can bring an application to determine whether the Act applies, and the italicized excerpt from the separation agreement above contains a specific acknowledgment that the Tenant is not, in fact, a tenant of the rental unit. The question of how the Tenant can later become a tenant of the rental unit without the consent of the Landlords is not one for me to consider here.

6. The separation agreement also matches what I understand would have been the Landlords' position regarding paragraph 6 of the application, which alleges the Tenant and the Other Tenant have a verbal tenancy with the Landlords. In any event, Family Court has exclusive jurisdiction over the separation agreement pursuant to subsection 21.8(1) of the Courts of Justice Act if it is the case the Tenant now intends to resile from it. Extrinsic evidence as to who might have paid rent when is irrelevant in view of the explicit acknowledgment of the parties in the separation agreement as and Landlords' position.

7. The Tenant lacks standing to bring the application. The application must therefore be dismissed.