Non-Application of the RTA
See Also:
Residential Tenancies Act, 2006, S.O. 2006, c. 17
Exemptions from Act
5 This Act does not apply with respect to,
- (a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;
- (i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;
- (n) any other prescribed class of accommodation.
SOT-66425-16 (Re), 2016 CanLII 57313 (ON LTB)
5. The tenancy began in 2013. At that time, a written rental agreement was entered into by the Respondent and AE. AE is the son of EE and IE. The rental agreement listed AE as "Leaseholder/Occupant" and IE as "Occupant." It makes no mention of EE.
7. The Respondent's position is that simply accepting EE's rent payments does not make him a tenant. The Respondent had a tenancy with AE, and as long as his rent was being paid, they did not care who was paying it. Ultimately, the Respondent's position was that EE is a mere occupant.
8. EE argued that by paying rent and residing in the rental unit, he should be considered a tenant as it is defined by section 2(1) of the Act, particularly as “occupant” is not defined by the Act.
9. Section 2(1) of the Act defines “tenant,” as “includ(ing) a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives.”
10. As the Divisional Court stated in its reasons for remitting this application back to the Board for a new hearing, the Court of Appeal has recognized, in Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority, 2002 CanLII 41961 (ON CA), that the Act should be interpreted with an "expansive and liberal approach," and with a "tenant protection focus."
11. However, I am also mindful of the Divisional Court's pronouncement in Jemiola v. Firchuk, (2005) O.J. No. 6085 (Div. Ct.) which stated that while “tenant” should be broadly and liberally construed, it should also be recognized that,
- “… the legislation does not prohibit tenants from having roommates, family and friends living with them. The Member found, correctly in our view, that this does not necessarily confer on them the status of tenant.”
12. Further, while EE is correct in submitting that “occupant” is not defined within the Act, this does not mean that there is no such thing as a non-tenant “occupant” of a rental unit for the purposes of the Act. It is recognized in various provisions of the Act that there may be occupants that are not tenants. One need only look at a number of provisions in the Act referring to “occupants,” and "other members of (a tenants') household," including:
- - Section 22, which states that landlords may not interfere with the reasonable enjoyment of rental units by a tenant or “members of his or her household;
- - Section 60, which allows landlords to apply to terminate a tenancy if a tenant or “other members of his or her household,” misrepresent their income;
- - Section 61, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit commits an illegal act…;”
- - Section 62, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit…” wilfully or negligently causes undue damage;
- - Section 63, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” wilfully causes undue damage or uses the rental unit in a manner inconsistent with use as a residential premises;
- - Sections 64 and 65, which allow landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” substantially interferes with reasonable enjoyment of a residential complex by other tenants or a landlord, or a landlord’s lawful rights, privileges or interests; and
- - Section 66, which allows landlords to apply to terminate a tenancy if a tenant or “another occupant of the rental unit” seriously impairs the safety of any person in the residential complex.
13. Just as the Act recognizes that persons other than tenants may reside in a rental unit, 'it also recognizes that persons other than tenants may pay rent,' as section 2(1) of the Act defines “rent” as “includ(ing) the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit...” [emphasis added]
15. It is worth noting that implied tenancies usually arose where, before the continuation of expired leases on a month to month basis was made automatic by statute, tenants continued to occupy rental units and continued to pay rent after fixed term tenancies had ended. However, implied tenancies could also arise where tenants moved out or died, but other persons paid rent to landlords for the right to remain in rental units.
16. In my view, consideration of the evidence in its full context in the current case did not support the creation of an implied tenancy between EE and the Respondent. The evidence did not show that EE paid rent for continuation of a lapsed or terminated tenancy. He testified that he has lived in the rental unit, and paid the rent, since the commencement of his son's tenancy, which is still in effect. The tenancy with AE has never lapsed or terminated. The Landlord's staff members have approached EE about being added in writing as an occupant, not a tenant. These facts comfortably support a conclusion that EE has lived in the rental unit as an occupant by benefit of his son's tenancy, that he has paid rent on behalf of his son, and that he has never become a tenant himself.
YMH v YWCA, 2019 CanLII 121436 (NWT RO)
12. I understand that Northview took action by giving the Landlord an eviction notice on September 10, 2019, ending the contract for the rental premises effective immediately and requiring the Landlord to have the premises vacated. The Landlord told the Tenant to vacate the premises, and then on September 12, 2019, Northview changed the locks to the premises, prohibiting the Tenant’s return. Sometime over the next few days the Tenant was granted access to the premises during daytime hours only, and then started staying there again on September 18, 2019. The Tenant’s children returned to the premises September 20, 2019. On October 2, 2019, the RCMP forcibly entered the premises and removed the Tenant and his children, returning possession to Northview. Under what authority the RCMP conducted this eviction was not established at hearing – no evidence was presented of either an eviction order or a writ of possession issued by the Supreme Court. Neither was an application to a rental officer made by the Landlord seeking termination of the tenancy agreement and eviction.
Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)
[63] Section 141(1) of the Courts of Justice Ac, R.S.O., c. C.43, states that "orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement".
[64] As held by Bale J. in his decision of January 8, 2019, in combination these two provisions make clear that the sheriff "is required to enforce the eviction order, in the same manner as a writ of possession…"
[70] The Sheriff does not have the discretion to decide not to enforce the eviction orders.
[71] In Central Guaranty Trust Co. v. McRae (1993), 1993 CanLII 8542 (ON SC), 13 O.R. (3d) 295 (Sup. Ct.), at para. 12, the Superior Court held that the Sheriff has a duty to enforce validly made writs of possession and no discretion not to do so:
- A writ of possession is an order of the court. It is granted only after a Judge or master has made a judicial determination which includes consideration of the rights of the occupants. A Sheriff is an officer of the court, sworn to uphold the law. Refusal by a law enforcement officer to enforce an order of the court can only serve to undermine respect for the judicial system and bring the administration of justice into disrepute. A Sheriff, therefore, has no discretion to refuse to execute a writ of possession.
[72] The same principle clearly applies to the Sheriff's obligation to enforce an eviction order made by the Board, given that section 85 of the Residential Tenancies Act provides that an eviction order is to be enforced in the same manner as a writ of possession.
Toronto Community Housing v. Bryant Didier, 2018 ONSC 5158 (CanLII)
[11] The Landlord and Tenant Board reached its decision on January 19, 2016. The Board determined that it had no jurisdiction over Unit B3 because from the onset of Mr. Didier’s tenancy, Unit B3 was used “predominantly, if not exclusively, for commercial purposes.” The jurisdiction of the Landlord and Tenant Board is restricted to residential premises.
[12] Mr. Didier decided to appeal the decision of the Landlord and Tenant Board, but did not do so in time. Mr. Didier brought a motion to the Divisional Court seeking an extension of time to appeal the Board’s decision. On August 30, 2017, while the motion before the Divisional Court was pending, the TCHC served Mr. Didier with a second Notice to Quit to terminate his tenancy of Unit B3. This August 2017 Notice to Quit demanded that Mr. Didier vacate Unit B3 by September 30, 2017. The TCHC delayed enforcement of the August 2017 Notice to Quit while the Divisional Court had Mr. Didier’s motion under consideration.
[13] On October 19, 2017, the Divisional Court dismissed Mr. Didier’s motion to extend the time for his appeal on the basis that Mr. Didier’s appeal of the Landlord and Tenant Board’s decision had no merit. The Divisional Court held that the Landlord and Tenant Board’s determination that Unit B3 was not used as a residence “was amply supported by the evidence before it.” Appeals from the Board lie to the Divisional Court only on questions of law, and none were raised by Mr. Didier’s appeal.
[22] In cases where there is no written lease and where the parties dispute the type of tenancy that was agreed upon, the onus is on each party to establish, on a balance of probabilities, their respective positions concerning the term of the tenancy. In this regard, the Court must look at the surrounding circumstances, including the actions of the parties, to determine what the parties intended their contractual relationship to be: Manitouwadge General Hospital v. Kudlak, 2000 CarswellOnt 3243 (Ont. S.C.J.), at para. 28. All matters considered, in assessment of all evidence regarding Mr. Didier’s rental history, I have determined that Mr. Didier’s rental of Unit B3 is a monthly tenancy. I do not find in the current record any agreement on implied terms between the parties pertaining to the rental of Unit B3.
[24] The Landlord and Tenant Board determined that Mr. Didier’s rental of Unit B3 was exempted from the Residential Tenancies Act because it came within section 5(j), which exempts “premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation.” The Landlord and Tenant Board has the exclusive jurisdiction to determine and terminate a residential tenancy: section 168(2) of the Residential Tenancies Act; Toronto-Dominion Bank v. Hosein, 2016 ONCA 628, 133 O.R. (3d) 225; Warraich v. Choudhry, 2018 ONSC 1275, 2018 CanLII 1275 (Div. Ct.).
