Possession of the Rental Unit (LTB)

SWL-87631-16-RV (Re), 2016 CanLII 72146 (ON LTB)

6. So the legal question is what does the phrase “in possession” mean? The leading and definitive case on the meaning of this phrase in the Act is found in the Court of Appeal’s decision in 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (ON CA) (‘Bakker’). It says (at paragraphs 18 to 22):

[18]…I think the requirement that the tenant be "in possession of the rental unit" at the time of the application reflects a determination that rent arrears disputes can be resolved efficiently and fairly through the Tribunal where the tenant at the time of the application continues to have some connection with the rental unit and, therefore, some relationship with the landlord. Situations where that connection has been severed and the relationship gone are best resolved through the more formal court processes.

[19] Some further assistance in defining "tenant in possession" is found by an examination of s. 86(2). That subsection provides that a landlord may be compensated for "the use and occupation" of a rental unit after notice of termination of the lease. A landlord can only be compensated, however, if the tenant is "in possession of the rental unit" when the landlord's application is made. This suggests that a "tenant in possession" is a person who was using or occupying the rental unit at the time of the application but does not necessarily indicate that the phrase is limited to users and occupiers.

[20] Possession is a difficult concept to define. Both in common and legal parlance, it connotes some form of control over the thing said to be possessed: e.g. D. Dukelow, B. Nuse, The Dictionary of Canadian Law 2nd ed., (1995) Carswell at p. 916; The Shorter Oxford English Dictionary, Vol. II (1973) p. 1635. Clearly, possession in s. 86(1)(b) is not limited to immediate physical control. For example, a tenant who locks up a rental unit and leaves on an extended vacation, continues to exercise sufficient control over that rental unit so as to qualify as a "tenant in possession" for the purposes of s. 86(1)(b). In my view, possession of a rental unit refers to some form of control over that unit as demonstrated by factors such as access to, use of, or occupation of the unit.

[21] There will be cases, although I would not think a great many, where a determination of whether the tenant was "in possession of the rental unit" at the time of the application will raise a difficult issue. In those cases, the Tribunal will have to decide, based on the evidence, whether there is a sufficient connection between the rental unit and the tenant to permit a finding that the tenant was "in possession" of that rental unit.

[22] In this case, there was no connection between Bakker and the rental unit at the time the s. 86 application was commenced. Bakker exercised no control over that unit. He had unequivocally, completely, and permanently vacated the unit more than two years before the application.

[Emphasis added.]

7. As can be seen from this quote the question of possession is a factual one to be determined on a case by case basis. The Board is to look at each case and determine what sort of control the Requester exercised over the unit at the time the application was filed, whether or not he had access to it, used it for any purpose, or otherwise had a connection to it.

8. Given the evidence and the submissions here, I am satisfied that the Requester was not in possession of the rental unit on March 30, 2016, when this application was filed.