Non-Application of the RTA (Eviction)

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.

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.).

Ravnaski v. Zolis, 2020 ONSC 923 (CanLII)

[10] First, is Mr. Ravnaski a tenant of the estate such that any request for him to vacate the condominium is governed by the Residential Tenancies Act? The answer to this question will resolve both the estate’s application and part of Mr. Ravnaski’s application to set aside the arbitration award. If Mr. Ravnaski is a tenant of the estate and his tenancy is exclusively governed by the Residential Tenancies Act, the arbitrator did not have jurisdiction to order him to vacate the property and this Court does not have jurisdiction to grant the estate’s application for vacant possession. On the other hand, if Mr. Ravnaski is not a tenant of the estate, the estate is entitled to an order for vacant possession of the condominium. If this Court grants the estate’s application and orders Mr. Ravnaski to vacate the condominium, his application to set aside the arbitrator’s order that he vacate the condominium would be moot.

[15] The Residential Tenancies Act did not apply to the rental agreement Mr. Ravnaski had with his mother while she was alive, even though he paid her rent. The Residential Tenancies Act does not apply with respect to living accommodation whose occupant shares a bathroom or kitchen facility with the owner.[4] Mr. Ravnaski’s mother owned the condominium and they shared a kitchen. Mr. Ravnaski’s tenancy was, therefore, not covered by the Residential Tenancies Act while his mother was alive.

[17] For the reasons that follow, I find that Mr. Ravnaski had a contract with his mother to live in her condominium for a month at a time in exchange for rent. The estate was required to permit Mr. Ravnaski to live in the condominium for the remainder of the month for which he paid before his mother passed away. Mr. Ravnaski never entered into a contract with the estate that would permit him to continue to live in the condominium after the agreement he had with his mother expired. As a result, he is not a tenant of the estate and has no legal entitlement to stay in the condominium.

[33] I find that Mr. Ravnaski is not a tenant of his mother’s estate and there has never been a valid tenancy agreement between Mr. Ravnaski and the estate. Mr. Ravnaski’s occupation of the condominium was not governed by the Residential Tenancy Act while his mother was alive and that did not change after her death. The Estate Trustee is entitled to vacant possession of the condominium and Ms. Zolis’ application (CV-19-00624557-000) is granted.

[60] Mr. Ravnaski is not now and has never been a tenant of the estate. His occupation of the condominium is not governed by the Residential Tenancies Act. The estate’s application (CV‑19‑00624557-000) for vacant possession of the condominium is granted.

[61] In her application, Ms. Zolis asked for an Order that Mr. Ravnaski vacate the property immediately. She also asked for an Order authorizing her to seek the assistance of the Sheriff to secure the vacant possession of the property if Mr. Ravnaski does not voluntarily leave.

[62] Mr. Ravnaski is ordered to vacate the property within 90 days from today. If Mr. Ravnaski refuses to leave the condominium in compliance with my order, Ms. Zolis, in her capacity as the Estate Trustee, is granted leave to issue a writ of possession in relation to the condominium and require the Sheriff of the City of Toronto (the “Sheriff”) to put her in vacant possession of the condominium. Ms. Zolis, in her capacity as the Estate Trustee, can seek the assistance of the Toronto Police Service, the Sheriff and any qualified and licensed locksmith to obtain and secure vacant possession of the condominium. To the extent that the Toronto Police Service, the Sheriff of the City of Toronto or a locksmith are involved with securing vacant possession of the condominium for the Estate Trustee, they are to be held harmless.

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada, to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;

• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

• There is no evidence that Morgan gave Roxanne notice to leave the home; and

• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

• Roxanne was, at a Minimum, a Licensee and Entitled to Remain

Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division)

48 When Diane and Steve Divitcos re-entered the building and changed the locks after they had been evicted pursuant to a writ of possession, they were clearly doing an illegal act. One of the main public policies manifested in Part IV of the Landlord and Tenant Act is a legislative determination not to have the obtaining of possession of leased residential premises made the subject of self-help remedies by either landlords or tenants.