Splitting the Rental Unit (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-01
CLNP Page ID:	2371
Page Categories:	[Renovations and Repairs (LTB)], [Renovation & Demolition (LTB)]
Citation:	Splitting the Rental Unit (RTA), CLNP 2371, <>, retrieved on 2024-11-01
Editor:	Sharvey
Last Updated:	2024/04/09

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Executive Property Management v Gil, 2022 CanLII 94711 (ON LTB)

31. In the present case, the real substance of the work proposed by the Landlord is not a demolition for several reasons.

32. First, the Landlord does not propose any work that can reasonably be described as irrevocably destroying or even significantly changing the Tenant’s rental unit. The building permit as well as the testimony of the Landlord’s witness confirm that while significant work is being done in the unoccupied basement there are no proposed changes to the floorplan of the Tenant’s unit. That the work itself is insignificant as it pertains to the Tenant’s unit is demonstrated by the fact that it has not been necessary for the Tenant to vacate the rental unit while the Landlord brought the work in the basement to substantial completion (albeit without the necessary inspections).

33. Second, even if the Landlord was proposing to destroy or significantly change the Tenant’s unit, and even if the project required the Tenant to vacate the rental unit, there would be no impediment to the Tenant moving back into the unit and exercising a right of first refusal. The basement has been unoccupied at all material times and there is therefore no tenant in the basement who would be competing with the Tenant for the exercise of this right.

34. Third, in his questioning of the Tenant, the Landlord’s legal representative had the Tenant admit that she does not pay rent for floor space in the basement. I understood the purpose of eliciting this admission as making the point that the Tenant would obtain a windfall if she were permitted to remain in her unit paying the same rent while receiving the benefit of the increased floor space once the Tenant’s unit is connected to the basement.

35. The problem I have with this argument is that the Act expressly provides a mechanism for dealing with situations where a landlord wants to add floor space or storage space to an existing unit. I am referring to subsection 123(1) of the Act and subsection 16(1) of O. Reg. 516/06, which together provide that a landlord may increase the rent charged to a tenant at any time if the landlord and the tenant agree to the addition of storage space or floor space. That the Act requires such additions to be based on consent suggests that a landlord cannot unilaterally impose such a change on a tenant. This is in my view the real substance of what the Landlord is attempting to do. The fact that the Tenant has not consented to the addition of storage space or floor space does not change the Landlord’s project into a demolition. If it did, landlords could evict their tenants by proposing relatively minor work such as enclosing a porch and characterizing the result as a new unit because it is bigger than the original unit. This would in my view strike an unfair balance between the rights of residential landlords and tenants and defeat the Legislature’s intention to preserve tenancies where it is possible to do so.