Legal Test (Illegal Act)(RTA)

Musse v. 6965083 Canada Inc., 2021 ONSC 1085 (CanLII)

[23] In my view, the test under s. 61(1) is relatively straightforward.It requires the landlord to establish either that the tenant, or other occupant, committed an illegal act at the residential complex. In the alternative, that the tenant or other occupant permitted an invited guest to commit an illegal act.

[24] The act in issue is an assault. An assault is an intentional application of force, without consent and where the person applying the force knows that the person against whom force is applied is not consenting. Whoever spit in the face of the superintendent undoubtedly committed an assault.

[25] In this instance the Member was unable to conclude who spit at the superintendent. The upshot of that inability was to narrow the availability of s. 61(1) as a path to eviction. In particular, since the Member could not say that the appellant or her mother (the other occupant) committed an illegal act, the only other means of satisfying the test under s. 61(1) was for the Member to conclude that the appellant, or her mother, permitted another person to commit an illegal act on the premises.

[26] Permission, like consent, involves a state of mind. It is the voluntary agreement that something occur. It involves knowledge of what is going to happen and a voluntary agreement that it be done. A finding of permission did not inexorably flow from the mere fact of the appellant’s presence at the altercation. A finding of permission required at least some evidence upon which it could have been inferred that the appellant knew someone else was going to spit on the superintendent and that she voluntarily agreed that it be done. That evidence is absent in this record.

[27] The Member, in my view, clearly did not turn her mind to the element of permission. This is not a case where she simply failed to or chose not to advert to it. Her suggestion that it is immaterial who spat at the superintendent demonstrates that the Member misunderstood the permission element. She undoubtedly failed to analyse and apply it. This was an error of law, not a factual error or an error of mixed fact and law.

[28] In the result, the Member’s conclusions under s. 61(1) are tainted by error and cannot stand.