Illegal Rooming House - Re: Tenant

Davies v. Syed, 2020 ONSC 5732

[34] The Court of Appeal in Fraser dealt with a motion where the plaintiffs were a group of neighbours who lived near an illegal rooming house in Ottawa. The plaintiffs sought injunctive relief against the landlords restraining them from operating the rooming house. The landlords had been convicted of operating a rooming house without a license and in fact, consented to an order granting the injunction. The injunction order provided that no steps would be taken to enforce the order until notice had been given to the tenants or for the orderly sale of the property. An application was brought by the landlords to the Ontario Rental Housing Tribunal for an order terminating the tenancies. The tribunal refused the landlords’ application, and when faced with the continued operation of the rooming house the plaintiffs sought an order of the Superior Court on notice to the tenants requiring that the tenants vacate the rooming house. An appeal was brought to the Court of Appeal on the basis that the Superior Court lacked jurisdiction to make the order. The appeal was allowed.

[40] On the facts of this case, there is no order of the LTB evicting any of the occupants of the various residences that are described in the Statement of Claim. I am satisfied that s. 168(2) of the Act provides exclusive jurisdiction for the granting of an eviction order to the LTB. This has been made clear by the Court of Appeal in Fraser.

[41] What distinguishes this case, however, in my view, is the fact that there are numerous orders made by the various fire protection services as well as zoning notices that, in essence, declare that at least some if not all of the residences are residential dwelling homes that have been converted into rooming houses. The unsuspecting occupants of the residences believe that they are renting rooms from Syed. Syed obtained lease agreements from the various plaintiffs as a result of a fraudulent misrepresentation that he would be occupying the residences as a single-family residential home occupied only by himself and his family. The evidence in my view is overwhelming, that Syed obtained the right to lease the various residences at issue in this lawsuit as a result of a fraudulent misrepresentation that renders such lease agreements void ab initio.

[44] My conclusion that the plaintiffs have standing to seek injunctive relief does not ignore the exclusive jurisdiction of the LTD. Rather, the Legislature chose not to limit the jurisdiction of this court by providing that s. 440 was superseded by the exclusive jurisdiction of the LTB. This issue was, in part, dealt with by Howden J in Neighbourhoods of Winfield Limited Partnership v. Death, 2008 CanL11 42428, where Howden J. granted an order under s. 440 of the Municipal Act restraining the respondent landlords from using their houses as multi-unit rentals, contrary to the municipal by-law which did not allow lodging houses containing more than two bedrooms for rent. The multi-unit rentals were occupied by groups of students as tenants.

[45] It is noteworthy that the decision of Howden J. in Winfield was upheld by the Court of Appeal (leave to appeal to the Supreme Court of Canada refused). The decision of the Court of Appeal was released within four years of its decision in Fraser. As noted by D.C. Shaw J. in Kenora (City) v. Eikre Holdings Ltd., 2018 ONSC 7635 at para. 66, “There was no suggestion in Neighbourhood of Winfields that the Residential Tenancies Act defeated the statutory jurisdiction of the Superior Court to make a restraining order under s. 440”.

[46] The Court of Appeal in Fraser makes clear that the Superior Court has broad jurisdiction to grant an injunction. In my view, such broad power coupled with the enforcement powers of s. 440 of the Municipal Act are such that this court should grant the plaintiffs who are “taxpayers” an injunctive remedy that is in no way inconsistent with the exclusive jurisdiction of the LTB.

[47] The occupants of the various residences described as the defendants John Doe 1 to John Doe 12 as well the defendants Syed, are ordered to comply with all outstanding orders from any fire protection service that are directed at the residences.

[48] The occupants of the various residences described as John Doe 1 to John Doe 12 as well as the defendant Syed, are further ordered to comply with all outstanding Municipal Notices requiring that the defendants conform with all zoning by-laws, including any by-law that requires the residences to be returned to the status of a single-family residence.

[49] The occupants of the various residences described as John Doe 1 to John Doe 12 and the defendant Syed, are further ordered in the absence of any Municipal Notice to comply with all municipal zoning by-laws that may govern the residences. Where such zoning by-law allows for a single-family residence, the defendants are ordered to cease and desist using any of the residences as a rooming house.

[50] The occupants of the residences described as John Doe 1 to John Doe 12 and the defendant Syed are to comply with the orders of this court within 7 days, failing which the plaintiffs may seek further relief from this court to enforce these orders.