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.

Onucki v. Fudge (Ont. Div. Ct.), [1990] O.J. No. 2175

COO J. (orally):— The trial judge found that the provisions of s. 115 of the Landlord and Tenant Act, applied to the apartment occupied by the appellant, obviously by reason of the testimony of the landlord/respondent as to the circumstances in which the appellant came into occupation of apartment 101 in the landlord's building.

The evidence accepted by the trial judge certainly supported the conclusion that the apartment was residential premises used for residential purposes by the appellant, employed as a superintendent under the provisions of s. 81(a) of the Act. It matters not whether the job which the appellant assumed for the respondent was full-time or not. There was certainly sufficient evidence to support this conclusion, and that the appellant continued to be to the time of termination of the relationship, the superintendent of the building.

Whether or not sufficient notice of termination of employment was given to the erst while superintendent is a matter for another forum. It is clear that the employment of the appellant was terminated, and that is all that is required under the provisions of s. 115. In our view, the approach adopted by the Divisional Court in Re Rio Algom Ltd. and Turcotte (1978), 20 O.R. (2d) 769 at 771 should be followed.

There is no evidence as to whether the landlord deposited the appellant's certified cheques for the proper rent after termination and, in any event, the provisions of s. 112 would apply here. There is no evidence from which the conclusion could reasonably be reached that by agreement there had been a new tenancy created by acceptance by the landlord of the appellant's cheques.

We see no merit in the suggestion which was made in the material although it was not pursued in argument that the appellant was by the trial judge deprived of the opportunity either to cross-examine or to introduce evidence on any relevant and significant issues.

For oral reasons given the appeal is dismissed. No costs.

Rio Algom Ltd. and Turcotte, 20 O.R. (2d) 769

Page 1 of 3

SOUTHEY, J.:— The respondent was hired by the appellant, Rio Algom Limited, on February 23, 1977, as a shaftman. In that capacity, his work took him underground. On March 15, 1977, he signed a lease for the occupation of certain company-owned premises in Elliot Lake. it is common ground that those premises are leased by the company to employees only, as a general rule, although the respondent, who appeared before us in person, said there were some units presently occupied by non-employees. In any event, it is clear from the evidence that the respondent rented the premises knowing that he was only entitled to do so as an employee and could retain the premises only as long as he was an employee.

Page 2 of 3

On March 23, 1977, he had a conversation with one of his supervisors at Rio Algom named Ken Doyle. Mr. Doyle is described in the evidence as the underground supervisor and, whatever may be the correct designation of his office, Mr. Turcotte described him as the highest supervisor at the mine at the time. On that day, Mr. Doyle informed Mr. Turcotte that he had silicosis. According to Mr. Turcotte, Mr. Doyle went on to say, calling the respondent by the initials of his first name, Jean Paul, "J. P., don't worry about it. I have that problem myself, so has your friend", referring to another fellow working with Mr. Turcotte, named Marcel Pilotte. "Marcel has that, too. We both receive a pension for it. Don't worry about it, J. P., you still have a job with us."

The evidence of the respondent, which was accepted by the learned District Judge, was that the respondent, acting in reliance upon the promise of Mr. Doyle that he would be able to retain a position with Rio Algom, notwithstanding his silicosis, took steps shortly after this conversation to have his family give notice to vacate the premises they were occupying in Sudbury. In due course, he moved them into the premises at Elliot Lake that he was leasing from the appellant. The family moved in on April 16th. On April 18th, the respondent was dismissed from Rio Algom. He has been told that the reason for the dismissal was that he would be unable to work underground again, because of his silicosis.

At the hearing before the learned District Judge in Sault Ste. Marie, the Judge found, in these proceedings by the appellant for a writ of possession of the leased premises, that the appellant would have been otherwise entitled to a writ of possession, if the appellant fell within the provisions of s. 103g(3)(d) of the Landlord and Tenant Act, R.S.O. 1970, c. 236, as amended [1975 (2nd Sess.), c. 13, s. 3]. That subsection provides that one of the circumstances in which a Judge hearing an application for possession by a landlord is not prohibited from granting a writ of possession is, if:

(d) the tenant was an employee of an employer who provided the tenant with residential premises during his employment and his employment has terminated;

The learned Judge held that the appellant would have fallen within this subsection, but held the appellant could not rely on it because it was estopped from so doing by the promise made by Mr. Doyle to the respondent, as aforesaid. Because of that estoppel, in the view of the learned District Judge, the appellant was prevented from taking a position that was inconsistent with the promise of Mr. Doyle that the respondent could have a job with the appellant company.

We have the deepest sympathy for the respondent with his serious medical problem. We are all of the view that we would not reverse the decision of the learned District Judge on the ground that the facts did not give rise to an estoppel. We accept for the purposes of our judgment, without so deciding, that there were grounds for an estoppel, but that estoppel, in our judgment, does not prevent the appellant from taking the benefit of s. 103g(3)(d).

The estoppel, in our view, could not have put the employee in any better position that he would have been in, if he had had a subsisting contract of employment for an indefinite term with his employer at the date of his discharge. The argument of counsel for the appellant is that cl. (d) applies when an employment has been terminated, whether or not such termination was wrongful in the sense that it constituted a breach of contract. He submits that if the termination was wrongful, then the employee, in an action for wrongful dismissal, would be able to recover as part of his damages any loss suffered by him as a result of having to give up the residential premises provided by the employer. In our view, this submission must prevail. If it were not so, it would mean that an employer providing premises for occupation by his employees in cases where such occupation was necessary for the discharge of the duties of the employees, would be unable to obtain possession of those premises upon dismissing an employee whenever the employee claimed that his dismissal was in breach of contract. This would mean, for example, that the owner of an apartment building would be unable to obtain possession of the supervisor's suite upon discharging a supervisor if the supervisor took the position that his employment had been wrongfully terminated.

Page 3 of 3

In our view, s. 103g(3)(d) applies whenever employment has been terminated, whether wrongfully or not, and that the proper redress where an employee's employment has been wrongfully terminated is by way of damages in an action for wrongful dismissal.

For these reasons, the appeal will be allowed and the order of the learned District Judge set aside

In the circumstances that have given rise to this appeal, we are of the view that the respondent ought to have at least one month before being required to vacate the premises in question. Section 107(2)(b) [rep. & sub. 1975 (2nd Sess.), c. 13, s. 7(2) ] of the Landlord and Tenant Act, empowers a Judge of first instance to order that the enforcement of the writ of possession be postponed for a period not exceeding one week. We have been assured by counsel for the appellant that the appellant will not enforce a writ of possession before the elapse of one month from today's date. With that assurance, we shall simply provide in our order that in place of the order of the learned District Judge there be an order directing that a writ of possession issue.

Rondinelli v. Cain, [1989] O.J. No. 235

1. Mr. Cain was a tenant under a tenancy agreement with the prior owner of an apartment at 117 Godfrey Dr. in London. The prior owner then asked if he would take on the caretaker's responsibilities. He agreed and as a result he was given reduced rent. Mr. and Mrs. Rondinelli then purchased the building. It is a 12-unit building. They became dissatisfied with Cain's performance of the caretaker's duties and fired him. This was on November 6, 1988. He was given one week to vacate but failed to do so. The landlord has now brought an application for vacant possession.

2. The issue in this case is whether the normal termination provisions for residential tenancies apply or whether the summary termination provisions that relate to caretaker's premises apply.

3. At the hearing I said that Mr. Cain's rights were those of a tenant as opposed to those of a caretaker with the result that the summary termination caretaker provisions of the Landlord and Tenant Act, R.S.O. 1980, c. 232, were not available to the landlord. I gave very brief reasons at that time and subsequently was asked by counsel to give some written reasons. I now do so.