Under-Tenant, Boarder or Lodger (Non-RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-10-04
CLNP Page ID:	1974
Page Categories:	[RTA Exempt Tenancies]
Citation:	Under-Tenant, Boarder or Lodger (Non-RTA), CLNP 1974, <>, retrieved on 2024-10-04
Editor:	Sharvey
Last Updated:	2022/08/22

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Commercial Tenancies Act, R.S.O. 1990, c. L.7

1 In this Act,

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“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II, III and IV also includes the person entitled to possession of the premises; (“locateur”)

..

“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives. (“locataire”) R.S.O. 1990, c. L.7, s. 1; 1994, c. 2, s. 1; 1994, c. 4, s. 1; 1997, c. 24, s. 213 (1, 2); 1999, c. 6, s. 9 (1); 2005, c. 5, s. 10 (1, 2); 2020, c. 10, s. 1; 2020, c. 23, Sched. 2, s. 1; 2021, c. 4, Sched. 11, s. 2.

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2 This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24, s. 213 (3); 2006, c. 17, s. 247.

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4. All persons being grantees or assignees of the Queen, or of any person other than the Queen, and the heirs, executors, successors and assigns of every of them, shall have and enjoy like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for the non-performance of other conditions, covenants, or agreements, contained and expressed in the indentures of their said leases, demises or grants against all and every of the said lessees and grantees, their executors, administrators, and assigns as the said lessors or grantors themselves, or their heirs or successors, might have had and enjoyed at any time or times.

...

32 (1) In this section,

“under-tenant” means a tenant to whom the premises or some part of the premises in respect of which rent is distrained for have been sub-let with the consent of the superior landlord or in default of such consent under the order of the judge of the Superior Court of Justice as provided by subsection 23 (2). R.S.O. 1990, c. L.7, s. 32 (1); 2006, c. 19, Sched. C, s. 1 (1).

Declaration by boarder, under-tenant, or lodger that immediate tenant has no property in goods distrained
(2) If a superior landlord distrains or threatens to distrain any goods or chattels of an under-tenant, boarder or lodger for arrears of rent due to the superior landlord by the superior landlord’s immediate tenant, the under-tenant, boarder or lodger may serve the superior landlord, or the bailiff or other person employed by the superior landlord to levy the distress, with a statutory declaration made by the under-tenant, boarder or lodger setting forth that the immediate tenant has no right of property or beneficial interest in such goods or chattels, and that they are the property or in the lawful possession of the under-tenant, boarder or lodger, and also setting forth whether any and what amount by way of rent, board or otherwise is due from the under-tenant, boarder or lodger to the immediate tenant, and to the declaration shall be annexed a correct inventory, subscribed by the under-tenant, boarder or lodger, of the goods and chattels mentioned in the declaration, and the under-tenant, boarder or lodger may pay to the superior landlord, or to the bailiff or other person employed by the superior landlord, the amount if any, so due, or so much thereof as is sufficient to discharge the claim of the superior landlord. R.S.O. 1990, c. L.7, s. 32 (2).

Penalty for improper levy
(3) If the superior landlord, bailiff or other person, after being served with the declaration and inventory, and after the under-tenant, boarder or lodger has paid or tendered to the person the amount, if any, which by subsection (2) the under-tenant, boarder or lodger is authorized to pay, levies or proceeds with a distress on the goods or chattels of the under-tenant, boarder or lodger, the superior landlord, bailiff or other person is guilty of an illegal distress, and the under-tenant, boarder or lodger may replevy the goods or chattels in any court of competent jurisdiction, and the superior landlord is also liable to an action, at the suit of the under-tenant, boarder or lodger, in which the truth of the declaration and inventory may be inquired into. R.S.O. 1990, c. L.7, s. 32 (3).

Effect of payments by under-tenant, boarder or lodger
(4) Any payment made by an under-tenant, boarder or lodger under subsection (2) is a valid payment on account of the amount due from the under tenant to the immediate tenant. R.S.O. 1990, c. L.7, s. 32 (4).

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74 (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies. R.S.O. 1990, c. L.7, s. 74 (1); 1993, c. 27, Sched.; 2006, c. 19, Sched. C, s. 1 (1).

2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149

[1] As a courtesy by letter dated June 17, 2019, this court’s Senior Legal Officer alerted the parties to a potential problem regarding this court’s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today’s attendance.

[2] The parties did not do so but argued that this court has jurisdiction to hear this appeal.

[3] We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.

[4] As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.

[5] Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.