Evicting a Superintendent

Langer Properties v. Langer, [1998] O.J. No. 515

3. The situation is entirely different from that in the Rondinelli case that the appellant relies upon. There, the landlord made an arrangement with a tenant who had occupied premises other than as a caretaker whereby that tenant would perform caretaking operations upon the property in return for a reduction in rent. That tenant had the security of the provisions of the Landlord and Tenant Act at the time that the arrangement was made with him on an ad hoc basis by the landlord

4 In this case, as I have mentioned, the appellant was a manager of other premises at the time he took occupancy at 66 Lowther and became a manager of 66 Lowther in the ordinary sense of the word as soon as the other apartments were occupied. In our judgment, however, he was a manager from the outset in that he was taking care of a property that was being renovated to accommodate residential occupancy.

5 In these circumstances, in our opinion, the landlord was entitled to terminate the tenancy agreement, such as it was, with David Langer under the provisions of section 115(1) of the Landlord and Tenant Act. Accordingly the appeal is dismissed.

Maystar Holdings v. Isufaj, (2000)

10. On July 4, 2000, Mr. Isufaj was injured while performing the duties of his employment, specifically suffering an injury to his back and to his foot. He immediately reported this injury to the on-site assistant manager, Detty Jurca. The Landlord did not report this injury to the Workplace Safety and Injury Board (WSIB), and Mrs. Jurca told Mr. Isufaj to seek medical attention, which he did. Mr. Isufaj received initial medical advice to rest for two days, but this was rejected by Mr. Kasmani, who insisted that he continue to perform his duties, failing which he would be out of a job. Mr. Isufaj, a recent immigrant to Canada, was not aware of the availability of a claim under workers' compensation legislation, and he continued to work for several weeks, notwithstanding his continuing injuries.

12. On August 21, 2000, Mr. Isufaj advised his superiors that he was unable to perform certain of his duties, specifically the taking out of the garbage. The Landlord terminated his employment verbally that very day, and this was confirmed by a letter of the same date, requesting that the rental unit be vacated within two weeks.

14 The Tribunal has no jurisdiction to determine the propriety of the Tenant's dismissal from his employment. The parties agreed and the evidence confirmed that the Tenant's employment with the Tribunal was terminated on August 21, 2000. As to whether this was a wrongful dismissal or not is a matter which is beyond the jurisdiction of the Tribunal. Section 68 of the Act is unequivocal, that the tenancy terminates when the employment terminates, and the Tenant shall move out within one week thereafter. However, I cannot accept the argument of the Landlord's representative that section 68 supersedes section 84 and that, in the case of an Application relating to superintendent's premises, the Tribunal has no discretion to consider the relief from eviction provisions of section 84. The jurisdiction given to the Tribunal by sub-section 84(1) relates to "an application for an order evicting a tenant or subtenant", and does not distinguish among different types of rental units nor make any exception for rental units which are occupied as superintendent's premises. Moreover, sub-section 84(1) is clear that this jurisdiction conferred on the Tribunal exists "despite any other provision of this Act or the tenancy agreement." There exists on the facts of this case, as set out above, an obligation to consider the relief from eviction provisions of section 84

15 When Mr. Isufaj refused to take out the garbage on August 21, 2000, this constituted a work refusal, pursuant to the Occupational Health and Safety Act. This, coupled with the letter from Dr. Siddiq of August 18, 2000, was a clear indication to the Landlord that Mr. Isufaj was attempting to enforce his legal rights. This was the reason, based on the evidence before me, that he was terminated and that this Application was brought by the Landlord.

16 Therefore, an Order should issue dismissing the Application.

18 However, since the Application is being dismissed, I have no discretion to order the Tenant to pay rent or compensation to the Landlord. There is no jurisdiction in the Tribunal on a Landlord's Application to "make any other order that it considers appropriate." Such discretion only exists on a Tenant's Application, as prescribed by sections 34 and 35 of the Act. The discretion set out in sub-section 190(1), that the Tribunal may include in an order whatever conditions it considers fair in the circumstances" does not confer as wide a discretion on the Tribunal as sections 34 and 35, since the operative word "conditions" presupposes that a term may be included in an order as a condition of some other term being ordered or not ordered. In a case, as here, where the Application it is being dismissed, not due to the exercise of discretion but because it is statutorily mandatory to do so (pursuant to sub-section 84(2)(c)), the inclusion of a condition in the Order is not available to the Tribunal.

Parkette Place Apartments (c.o.b. Investors Property Services Ltd.) v. MacIntosh, [2006] O.R.H.T.D. No. 55

1. The Landlord purchased the residential complex on July 20, 1998. At that time the Tenant was the Superintendent of the building. The Tenant signed an affidavit on July 23, 1998. That affidavit set out the duties of the Tenant as Superintendent as well as a clause that the Tenant would receive a monthly compensation plus free rent for apartment 109 in consideration for the performance of the services set out as duties of the Superintendent in that affidavit.

2. Mr. C. Angona gave evidence that he has designated unit 109 as the Superintendents unit. The reason this was done is because the unit is close to all of the building services and because of the concerns of security risks. Mr. Angona also gave evidence that the Tenant submitted a letter of resignation to him on December 30, 2005. That letter indicated the Tenant would be retiring on April 1, 2006. Mr. Angona also gave evidence that there were letters back and forth between himself and the Tenant with regard to her retirement. In one (1) of those letters, dated January 13, 2006, Mr. Angona advised the Tenant that her services as Superintendent would no longer be required effective immediately. The Letter advised the Tenant that she must move out of the unit by March 31, 2006. This letter also advises the Tenant to surrender all keys, ledgers, log books or any other documentation pertaining to the residential complex.

6. The Tenant gave evidence that she has lived in the complex for thirty-four (34) years and has lived in unit 109 for thirty (30) of those years. The Tenant also gave evidence that she has been Superintendent for twenty (20) years. The Tenant also gave evidence that she is the first Superintendent to live in unit 109. Prior to her becoming Superintendent several different units were used as the Superintendent's unit. The Tenant also gave evidence that she was never advised by the present owner or any previous owner that unit 109 was designated as the Superintendent unit. The Tenant also gave evidence that the previous owners advised her she could remain in unit 109 even after she was no longer the Superintendent. The Tenant did not provide any documented proof to substantiate this statement. Several documents provided by the Tenant do substantiate her statement that previous Superintendents have lived in other units. All of these documents are from the time before the present owner took possession of the complex.

7 It is determined that:

1. The Landlord terminated the employment of the Tenant on January 13, 2006. The Tenant has not vacated the Superintendent's premises and more than one week has passed since their employment was terminated.

2. I find that the case law provided by the Tenant is not relevant to this matter. In the case provided, the Tenant was a part time caretaker who lived in the building where he worked. In the case provided the set up of the complex was that the caretaker may or may not live in the complex. The caretaker was provided with a salary and reduced rent based on the work that was completed. In the case provided the Court ruled that the section of the legislation that deals with the caretaker's unit is specifically designed to deal with the unit of a person that is engaged as a fulltime caretaker and as part of the operations of the complex. In the case provided this was not the case and the Court dismissed the Landlord's claim that the part time caretaker was subject to the legislation relating to the Superintendents unit. The Court held that in the case provided Mr. Cain was a Tenant firstly and a caretaker secondly. In the matter before me it is clear the Tenant was the

Superintendent and not a Tenant.

3. Based on the evidence before me I find that the Landlord had an agreement with the Tenant that was signed on July 23, 1998 allowing the Tenant to remain in the unit as long as she was the Superintendent. I find that this unit has been designated as a Superintendents unit by the Landlord.