Sub-Tenant - Re: LTB (Eviction)

Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

“subtenant” means the person to whom a tenant gives the right under section 97 to occupy a rental unit; (“sous-locataire”)

97 (1) A tenant may sublet a rental unit to another person with the consent of the landlord. 2006, c. 17, s. 97 (1).

(2) A landlord shall not arbitrarily or unreasonably withhold consent to the sublet of a rental unit to a potential subtenant. 2006, c. 17, s. 97 (2).

(3) A landlord may charge a tenant only for the landlord’s reasonable out-of-pocket expenses incurred in giving consent to a subletting. 2006, c. 17, s. 97 (3).

(4) If a tenant has sublet a rental unit to another person,

(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and

(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy. 2006, c. 17, s. 97 (4).

(5) A subtenant has no right to occupy the rental unit after the end of the subtenancy. 2006, c. 17, s. 97 (5).

(6) This section applies with respect to all tenants, regardless of whether their tenancies are periodic, fixed, contractual or statutory, but does not apply with respect to a tenant of superintendent’s premises. 2006, c. 17, s. 97 (6).

99 The following provisions apply, with necessary modifications, with respect to a tenant who has sublet a rental unit, as if the tenant were the landlord and the subtenant were the tenant:

1. Sections 59 to 69, 87, 89 and 148.

2. The provisions of this Act that relate to applications to the Board under sections 69, 87, 89 and 148. 2006, c. 17, s. 99.

101 (1) If a subtenant continues to occupy a rental unit after the end of the subtenancy, the landlord or the tenant may apply to the Board for an order evicting the subtenant. 2006, c. 17, s. 101 (1).

(2) An application under this section must be made within 60 days after the end of the subtenancy. 2006, c. 17, s. 101 (2).

TST-70452-16 (Re), 2016 CanLII 40103 (ON LTB)

16. As a result of the evidence respecting the manner in which the Tenant came to use the rental unit and the Tenant’s use of the rental unit, a preliminary issue in this application is whether the Tenant became a tenant by virtue of ss.100 and 104 of the Act.

17. Subsection 100(1) of the Act provides that if a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under the Act or a sublet authorized under the Act, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred.

18. Subsection 104(4) of the Act provides that a person’s occupation of a rental unit shall be deemed to be an assignment of the rental unit with the consent of the landlord as of the date the unauthorized occupancy began if,

(a) a tenancy agreement is not entered into under subsection (1) or (2) within the period set out in subsection (3);

(b) the landlord does not apply to the Board under section 100 for an order evicting the person within 60 days of the landlord discovering the unauthorized occupancy; and

(c) neither the landlord nor the tenant applies to the Board under section 101 within 60 days after the end of the subtenancy for an order evicting the subtenant.

19. It is uncontested that the parties have not entered into a tenancy agreement, the Landlord has not applied to the Board under s.100 to evict the Tenant (and the 60 day deadline to do so had passed before the first hearing date), and neither the Landlord nor Z have applied to the Board under s.101 of the Act to evict the Tenant.

26. Based on the evidence of the parties, I find, on a balance of probabilities, that the Tenant has not and does not live in the rental unit as his residence. The Landlords’ evidence through OH is stronger than the evidence given by the Tenant, especially considering the adverse inference drawn against the Tenant for failing to call key witnesses.

27. “Occupancy” is not defined in the Act. I agree with the reasoning in R. v. Bernard Machado Construction & Woodworking Ltd., [2001] O.J. No. 6276 (O.C.J.) (“Machado”), where the Court, considering the definition of residential occupancy, states “Having regard to its plain and ordinary meaning, there must be an element of residency or tenancy. Simple possession does not suffice.” In Machado, the Court found that although the personal defendant had occasionally slept in the home at issue, he did not occupy the home.

28. In this matter, the Tenant possesses the rental unit, in the sense that he keeps some of his possessions there and he has a key to enter the rental unit (or, at least, he had a key to the rental unit until the locks were changed in December 2015). However, the Tenant does not occupy the rental unit for residential occupation. The Tenant did not establish that he paid rent to the Landlords (at best the Tenant established that during his entire alleged tenancy L paid $600.00 to OH once, recently, and OH testified that this was for utilities). Although the Tenant could have called witnesses to establish that he had lived at the rental unit, he did not. OH testified that the Tenant has no clothes in the rental unit. The Tenant’s own testimony demonstrates that the rental unit is sparsely furnished, including with furniture owned by Z, and also including very temporary portable furniture (folding chairs).

29. Based on all of the foregoing, I am not satisfied that the Tenant had residential occupancy of the rental unit at any time. I am therefore not satisfied that occupancy of the rental unit was transferred to the Tenant and so I cannot find, based on ss. 100 and 104 of the Act, that the Tenant is a tenant. The only other way that the Tenant could be defined as a tenant under the Act would be if, as per the definition of “tenant” in s.2 of the Act, the Tenant had paid rent. I have found that he did not.

30. As the Tenant is not a tenant as defined in the Act, the Board has no jurisdiction over this matter and the Tenant’s application must be dismissed.