Legally Conferred Authority (TPA)(RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2341
Page Categories:	[Trespass to Property],[Interference of Reasonable Enjoyment (LTB)]
Citation:	Legally Conferred Authority (TPA)(RTA), CLNP 2341, <https://rvt.link/aq>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2024/10/09

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Trespass to Property

Trespass to Property Act, R.S.O. 1990, c. T.21

1 (1) In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).

(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

Substitute Decisions Act, 1992, S.O. 1992, c. 30

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.

...

7 (1) A power of attorney for property is a continuing power of attorney if,

(a) it states that it is a continuing power of attorney; or

(b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property. 1996, c. 2, s. 4 (1).

(2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will. 1992, c. 30, s. 7 (2).

...

31 (1) A guardian of property has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will. 1992, c. 30, s. 31 (1).

(2) Repealed: 1996, c. 2, s. 19.

(3) The guardian’s powers are subject to this Act and to any conditions imposed by the court. 1992, c. 30, s. 31 (3).

...

46 (1) A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care. 1992, c. 30, s. 46 (1).

...

59 (1) The court may make an order for full guardianship of the person only if the court finds that the person is incapable in respect of all the functions referred to in section 45. 1992, c. 30, s. 59 (1).

(2) Under an order for full guardianship, the guardian may,

(a) exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety;

(b) be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers;

(c) settle claims and commence and settle proceedings on the person’s behalf, except claims and proceedings that relate to the person’s property or to the guardian’s status or powers;

(d) have access to personal information, including health information and records, to which the person would be entitled to have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person’s property or to the guardian’s status or powers;

(e) on behalf of the person, make any decision to which the Health Care Consent Act, 1996 applies;

(e.1) make decisions about the person’s health care, nutrition and hygiene;

(f) make decisions about the person’s employment, education, training, clothing and recreation and about any social services provided to the person; and

(g) exercise the other powers and perform the other duties that are specified in the order. 1992, c. 30, s. 59 (2); 1996, c. 2, s. 37 (1); 2006, c. 19, Sched. B, s. 22 (7).

Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)

This is an application by the tenant for an abatement of rent under s. 113(1)(f) of the Landlord and Tenant Act, R.S.O. 1990, c. L.7.

The tenant alleges that the landlord breached the implied covenant for quiet enjoyment by harassing her with warning letters and other conduct by removing her right to a parking spot on the renewal of her lease, and by serving a notice on her boyfriend pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21, advising him that he was prohibited from entering the rental project. This last ground is the primary complaint and raises a difficult and apparently unresolved issue concerning the existence and interface of a right of a residential tenant to invite guests to visit or occupy the rented premises and a right of the landlord to restrict entry by such persons.

[...]

First, I note that the shopping centre trespass cases cited (which are reviewed in Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.)), did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised: Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), (1976) 2 S.C.R. 520, 62 D.L.R. (3d) 749. The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.

[...]

I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.); Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.).

I recognize that at least with respect to s. 2(1)(b) it could be argued that there is no "right or authority conferred by law" because here the tenant does not have the right to invite an occupier to stay in the premises; however, I think this is academic and that the invitee would still have a defence. The lease and s. 2(1)(a) clearly provide the tenant with the right to invite guests and it would not be appropriate in a prosecution under the Trespass to Property Act to make an inquiry as to whether the invitee has become an occupant rather than a temporary guest. Again, that should be resolved in a proceeding between the tenant and landlord. Further, it would appear that s. 2(1)(b) only applies where the person enters without permission or where the permission is withdrawn by the inviting occupier.

In conclusion, I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project but only if the person is not an invitee of the tenant.

I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.); Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.).

Seguin v OTTAWA-CARLETON ASSOCIATION FOR PERSONS WITH DEVELOPMENTAL DISABILITIES OCAPDD/OPEN HANDS, 2024 ONLTB 10430

7. The parties to the application agree that pursuant to Cunningham v. Whitby Christian NonProfit Housing Corp., 1997 CanLII 12126 (ON SC), the landlord is not permitted to lawfully trespass the invitee’s of a tenant.

8. In this case, Joy Séguin and Victor Séguin, as André Séguin’s substitute decision maker, are entitled to invite themselves as guests of André Séguin under the same terms that André Séguin could if he were mentally capable.

9. Understanding that this is a care home, when exercising these rights, Joy Séguin and Victor Séguin will give reasonable notice to the care home to ensure André Séguin is at the property. In most circumstances, reasonable would be defined as a phone call a minimum of an hour prior to attending, unless both parties agree to an earlier time. All parties will be respectful of each other’s rights and specifically in consideration of the operational requirements and routines of the Care Home.

SWL-03896-17 (Re), 2017 CanLII 60355 (ON LTB)

9. The Landlord also submitted into evidence a copy of a Notice of Trespass (Exhibit #10) dated January 9, 2017, which was delivered to TB at his last known address by a staff member of the City of Stratford Public Housing Division. The Notice was issued after TB had been seen at the Tenant’s unit. The Landlord’s position is that the Tenant is interfering with the Landlord’s lawful rights and the reasonable enjoyment of the Landlord and other Tenants because she has TB stay at her rental unit in contravention of the Notice of No Trespass. The Landlord advised the Board that the Landlord did not invoke rights under the Trespass to Properties Act.

10. The Landlord submitted three LTB Orders in support of their case for termination ( NOL-22547-16, SWL- 99480-17, and SWL-00825-17). I do not find these Orders to be helpful.

11. Although SWL-00825-17 deals with a couple who have been trespassed, the termination was based on the Tenant’s conduct of “allowing unknown individuals free access to the building.”

12. In SWL-99480-17 the guest of the tenant had been evicted from another rental unit and now was behaving badly in the tenant’s unit. I do not find this case relevant because in the case before me there are no allegations of poor conduct by the Tenant’s guest.

13. In NOL-22547-17 the tenant was leaving abusive voice messages for the landlord and accosting other tenants. This may have been relevant in the previous eviction application of TB, but it is not relevant in this case because the Landlord has led no evidence that the current behaviour of the Tenant or her guest has interfered with the reasonable enjoyment of the Landlord or other tenants. Although TB was evicted previously for similar behaviour, the matter before me today is about his current conduct.

14. The Tenant testified that TB visits the rental unit regularly and continues to do so. She stated that at all times she has invited him to the rental unit. The Landlord did not contest the Tenant’s evidence.

15. The Tenant submits that the Landlord cannot invoke the authority of the Trespass to Properties Act to prohibit entry of an invitee. The Tenant’s position is when the Landlord issued the Trespass Notice, the Landlord invoked the authority of the Trespass to Properties Act.

16. The Tenant submits that pursuant to Cunningham v. Whitby Christina Non-Profit Housing Corp O.J. No. 1533 [1997] the Ontario Court (General Division) the Landlord does not have the right to prohibit a person from entering the rental unit if the person is an invitee of the Tenant.

17. I agree with the Tenant’s position given the Court’s finding in Cunningham v. Whitby Christina Non-Profit Housing Corp’s, and given that the Tenant in this case invited T.B. into the rental unit.

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

TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)

3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.

7. The Tenants vacated the rental unit on September 3, 2009 as a result of the N12 Notice. The Tenants initially told the property management company retained by the Landlord that they would vacate the rental unit by August 31, 2009. However, the Tenants were not finished packing by August 31, 2009. The property management company agreed to extend the deadline until September 1, 2009. On September 2, 2009 the Tenants were still loading their van. GB, who works for the property management company, changed the locks on the rental unit on September 2, 2009 without giving the Tenants a key, but told the Tenants they could have access to the rental unit for the rest of the day to finish packing. He asked the Tenants to call him when they were finished packing. Not having heard from the Tenants, he returned to the unit at approximately 2 a.m. and discovered that the Tenants were still inside the rental unit. He asked them to leave, and then locked the door. The Tenants spent the rest of night in their truck parked outside of house.

Determinations:

2. The Landlord’s agent altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenants replacement keys.

3. The Landlord’s agent entered the rental unit illegally

4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.

Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)

17 The situation here appears to have been envisaged by D. Lamont, Q.C., in 4th ed. of Residential Tenancies (Toronto: Carswell & Co., 1983); at p. 120 it states: "It is suggested that landlords' [sic] only remedy is to consider the subtenant or assignee as a trespasser and to commence an ordinary action for possession." This was upheld in Days vs. Feder Ont. Co. Ct. 13 April 1979 (unreported).

22 While the occupants have had since October to have vacated, since this matter is not under the Landlord and Tenant Act, but is an ordinary action, while I will direct that a writ of possession may issue, on the basis that defendants Stacey Harrison and Kim Shende are trespassers and that the purported sublet at best could not extend past February 28, 1990, the occupants may remain until April 30, 1990 (to pay rent to the plaintiff, since the lease between Deborah Lindenas and James Lindenas expires on February 28, 1990) — payment of rent to the plaintiff will not create any landlord and tenancy relationship between the plaintiff and these occupants. If the occupants fail to do so, the plaintiff may apply to me on 3 days' written notice to vary my order. As long as the occupants may rent and comply with their obligation to treat the premises in a reasonable manner, the plaintiff will take no steps under the writ of possession, until May 1, 1990.

Pasculli v Sharif, 2022 CanLII 106822 (ON LTB)

12. In substance, section 22 of the Act codifies the covenant of quiet enjoyment. The Divisional Court’s decision in Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC) confirms that the covenant of quiet enjoyment includes the right to have guests, including for all or parts of a day or evening and overnight. This decision also confirms that a landlord only has the right under the Trespass to Property Act, R.S.O. 1990, c. T.21 to prohibit a person from entering a residential complex if the person is not an invitee of the Tenant. Pursuant to section 3(1) of the Act, this provision applies despite any other Act and despite any agreement or waiver to the contrary. Pursuant to subsection 4(1) of the Act, a provision in a tenancy agreement this provision is void. In TSL-50289-14 (Re), 2015 CanLII 69070 (ON LTB) a Member of the Board explained:

A landlord cannot dictate to a tenant about their guests or roommate. Rather, a landlord has the right to terminate a tenancy where a tenant permits a guest or another occupant of the unit on the property and the behaviour of the guest or occupant substantially interferes with the reasonable enjoyment of the landlord or another tenant.

See, additionally, TET-98683-19 (Re), 2019 CanLII 87736 (ON LTB), where a Vice-Chair of the Board held: “Tenants are entitled to take in roommates without a landlord’s permission as a result of the right to reasonable enjoyment.”

March 4, 2021: 42nd Parliament, 1st Session: Hansard Transcript 2021-Mar-04 vol. B

...

Mr. Joel Harden: I’d like to move a motion that reads as follows: That, in the opinion of this House, the Ford government should provide clear direction to operators that the Trespass to Property Act does not permit them to issue trespass notices to exclude substitute decision-makers and guests of the occupants of retirement homes, long-term-care homes, and other congregate care accommodations when they raise concerns about their loved ones’ living conditions.

...

The same thing happened to the Seguin family in Cornwall, where their son Andre—hi, Andre—was living in a group home because Andre needed that 24/7 care and help. When the Seguin family registered complaints about Andre’s living conditions, unfortunately, this is what happened to them, too—trespass orders and disputes. That’s not conducive for anybody’s mental health or physical health. Ultimately, if you can believe it, Speaker, Andre was evicted from that group home and unceremoniously brought back to his family’s front doorstep, his possessions beside him in a garbage bag. Can you imagine? This is the province of Ontario.

...

I used to teach legal studies at Carleton University. Putting my legal studies hat on for a second, I can point my friends in government to several statutes that confirm the rights that I’m talking about here. The Trespass to Property Act is very clear that a person can only be trespassing if they do not have legally conferred authority as a POA or as a substitute decision-maker. If the occupant wants them in, they have a right to be there.

The Retirement Homes Act, 2010, section 51(1)(9) stipulates that residents have “the right to have his or her lifestyle and choices respected and to freely pursue his or her social, cultural, religious, spiritual and other interests as long as the resident’s lifestyle, choices and pursuits do not substantially interfere with the reasonable enjoyment of the home for all usual purposes by the licensee and other residents.” There’s a balancing act, but it’s very clear that it’s there.

The Ontario Human Rights Code says the same thing: Tenants of care homes have the right to decide who they want to invite into their home, just as homeowners do. If the landlord tries to control who can visit the tenants, this can be considered harassment.

...

When Maria Sardelis mustered up the courage to defy the Trespass to Property Act on that 316th day of separation from her mom, Voula, she called the Ottawa police the day before and told the person on the other end of the line, “I’m going to be defying this order. I don’t think it’s a lawful order. I’m not going to put up any resistance, but I think what’s happening here is wrong.” Police were called, and charges were laid. Guess how long it took for a judge to throw this out of court? Twenty minutes—gone. The judge said, “What’s this doing in my courtroom?”

...

Mrs. Daisy Wai: It is my honour to rise today to speak about motion 129, raised by the member for Ottawa Centre.

...

Our government stands in favour of this motion. I hope the member will be very happy that we are seeing things in the same way—because we care for our seniors. The seniors are something that we have been speaking—that we not just talk about it; we put that into action. This is a government of transparency and accountability, one that believes above all that services and supports must be delivered for the people. We will continue to build out the systems and supports that meet the unique needs of Ontario’s seniors. They are the fastest-growing segment, I’m sure you know, of our population, with over 100,000 joining the ranks of our seniors every year.

...

Ms. Jessica Bell: Thank you to the member for Ottawa Centre for bringing forward this very important motion that I know speaks dearly to residents in Ottawa, and also your own work.

Very simply, this motion aims to make it clear that there is clear direction to operators that the Trespass to Property Act does not permit them to issue trespass notices to loved ones, guests and family members of the occupants of retirement homes, long-term-care homes and other congregate care accommodations when they raise concerns about their loved ones’ living conditions. It makes a lot of sense. It shocks me that this needs to be debated so that the law is actually enforced. I fully support this motion because it is absolutely necessary.

...

Every single family member has the right to visit their loved ones in long-term-care homes and retirement homes, following all public health rules and protocols. Family members also have the right to tell the truth if they see substandard, cruel, inhumane conditions and neglect. That is what Mary did, and that’s what every loved one should be able to do, as well.

I fully support this motion. It is part of our long-term campaign to improve the living conditions of people who live in retirement homes and long-term-care homes. It needs to be augmented with the many bills and motions that we have introduced and will continue to fight for, which include taking the profit motive out of long-term care, ensuring that every single resident has four hours of long-term care from a qualified personal support worker so that they can get the care they deserve—and also to support MPP Gretzky’s bill, the More Than a Visitor Act, which gives essential caregivers the right to support their loved one.

...

Mr. Tom Rakocevic: I want to thank my friend from Ottawa Centre for bringing forward this important motion.

...

I am proud to support Voula’s law. It is my hope that this motion passes unanimously so that families can have the peace of mind that they will not be separated from their loved ones just for advocating on their behalf. There is so much that needs to be done to fix long-term care in this province; certainly, this excellent motion put forward by my friend is one of them.

...

Ms. Marit Stiles: I want to thank the member for Ottawa Centre for bringing forward this motion and for continuing to raise this issue on behalf of his community. I am so proud to rise on behalf of my constituents in the great riding of Davenport to support this motion and to urge the government to put aside partisanship and do the right thing.

As we have heard, this bill was prompted by the shocking story of Voula Sardelis, who was kept apart from her daughter for nearly a year. The Ottawa retirement home where Voula lived used the Trespass to Property Act against her daughter Mary, or Maria, in what clearly appeared to be retaliation for raising concerns about her mother’s care.

...

Mr. Joel Harden: I’ve had some friends who have coached me along my life tell me that there would be moments like this in politics, when people could come together. I have already seen it, as I said, in this sitting of this Parliament, and this is great. It is great to see us come together and acknowledge these fundamental rights, because we can build on it.

But I want to be very clear: I wouldn’t be here, we wouldn’t be here as parliamentarians even talking about this were it not for the courage of Maria Sardelis, were it not for the courage of the Seguin family, were it not for the courage of Maureen McDermott and all of those folks. This is about them.

...

Thank you, Maria. Thank you, Joy. Thank you Maureen. Thank you, all of you good-intentioned troublemakers out there. This night is for you. Voula’s law is for you.

And, Voula, I wore my blue tie for you, okay? People around this place know I don’t always like to wear ties. But this is for you, Vou. This is for you.

Let us remember, maybe from here forward, Speaker—let’s have more of these moments before we’re done in this Parliament.

Thank you very much, colleagues.

The Deputy Speaker (Mr. Rick Nicholls): The time provided for private members’ public business has expired.

Mr. Harden has moved private members’ notice of motion 129.

Is it the pleasure of the House that the motion carry? Carried.

Motion agreed to.

April 19, 2023, 43rd Parliament, 1st Session, LEGISLATIVE ASSEMBLY OF ONTARIO, Hansard Transcript 2023-Apr-19 vol. A

...

MPP Lise Vaugeois: We know, in fact, that these trespass orders are being used every single day, illegally, to ban people from visiting their family members.

In March 2021, this House unanimously passed a motion, presented by my colleague from Ottawa Centre, stating that the government of Ontario would “provide clear direction to operators of retirement, long-term care and group homes that they cannot use the Trespass to Property Act to ban family members who speak out about their loved ones’ living conditions.”

Will this government fulfil this commitment from 2021 by posting clear direction in publicly accessible spaces in every care facility in Ontario and ensure, also, that the police forces no longer misapply the trespass act by blocking families from visiting their loved ones?

...

MPP Lise Vaugeois: This is entitled “For the Love of Seniors and Disabled.

“To the Legislative Assembly of Ontario:

“Whereas some operators of private retirement homes, group homes and long-term-care homes have banned family from visiting their loved ones by misusing the Trespass to Property Act;

“Whereas these punitive measures have been instituted when family or friends raised concerns for their loved ones;

“Whereas Ontario courts have ruled, pursuant to the Trespass to Property Act, a person cannot be trespassing if:

“—the person has legally conferred authority; or

“—the person is the invited guest of the occupant;

“Whereas on March 4, 2021, the Ontario Legislative Assembly unanimously passed motion 129, Voula’s Law, which requested that the Ford government provide clear direction that the Trespass to Property Act does not permit seniors’ homes or homes of the disabled to issue trespass notices...;

“Whereas the Ford government has not complied with the March 4, 2021 Legislative Assembly’s unanimous request via motion 129...;

“Therefore we, the undersigned, petition the Legislative Assembly of Ontario as follows:

“That motion 129 be transitioned to a bill which would be a binding authority and in alliance with Ontario courts rulings regarding the use of the Trespass to Property Act.”

I support the petition and affix my signature, and I will give it to Maya.

Laurier Homes (27) Ltd. v. Brett, 2005 CanLII 44817 (ON SC)

[31] The underlying logic of the elements of the claim for adverse possession is that a landowner with a right of possession losses that right because its possession has been displaced by the acts of possession of another. It follows that only landowners with a possessory interest are subject to losing it by adverse possession.

[32] It is perhaps an underappreciated fact that a landlord’s interest is non-possessory. When an owner of land leases his or her land, the owner has a reversionary interest and not a right to possession during the term of the lease. Therefore, during the term of the lease, having no right of possession, the owner of the land cannot be disposed and any claim for adverse possession is a claim against the leasehold and not the freehold. See: Giouroukos v. Cadillac Fairview Corp. Ltd. (1983), 1983 CanLII 1686 (ON CA), 44 O.R. (2d) 166 (C.A.); Arnprior (Town v. Coady), [2001] O.J. No. 1131 (S.C.J.).

[33] How the doctrine of adverse possession operates when there is a leasehold was described by the Ontario Court of Appeal in Giouroukos v. Cadillac Fairview Corp. Ltd., supra at pp. 178-80, where Robins, J.A. stated:

So long as the lease continues in effect, possession is vested in the tenant who, as a normal consequence of the landlord-tenant relationship, has control over and the power to exclude others from the leased property. The landlord's interest is non-possessory and remains so until the lease is terminated and possession reverts to him. Until then the possessory rights of the tenant continue intact, and the possession of a squatter initiated during the term of the lease, while adverse to the tenant, cannot be adverse to the landlord. It follows, that until the landlord's interest becomes possessory, his right of action does not accrue and the statutory period does not run against him. This conclusion accords with s.5(1) of the Act which makes clear that a right of action does not accrue unless a party entitled to possession has been dispossessed while so entitled. See also s-ss. 5(11) and (12) of the Act.

R. v. Webers, 1994 CanLII 7552 (ON SC)

[1] O’CONNOR J.:—On July 1, 1992, a violent incident happened on the psychiatric floor of the Grey-Bruce Regional Health Centre. Henry Webers was speaking to Heather Boys, a friend who was being involuntarily held there. He was calming her down. He got her to put on her pyjamas. A “Code White” team of eight hospital staff and two Owen Sound police officers had assembled. They rushed into the room to forcibly restrain and medicate Ms Boys. They were going to use leather straps to tie her to a bed. A nurse asked Mr. Webers to leave the room. He refused. He wanted to protect Ms Boys. The police officers then attempted to remove him. A fracas ensued. The three large men wrestled and thrashed about the room and out into the hallway. When the dust had settled, Mr. Webers was in handcuffs, charged with obstruct police, two counts of assault police, assault police with intent to resist arrest and two counts of assault causing bodily harm. All three men were injured, one of the officers seriously. He suffered a herniated disc which was ultimately removed. He was unable to work for almost two years.

...

[56] The Crown argues that, although Mr. Webers was originally an invitee in the room, he became a trespasser. I find that there can be no question that Mr. Webers was not a trespasser. He had been invited by the lawful occupiers of the premises to attend for a specific purpose. He was engaged in carrying out the task asked of him. The occupier of property is entitled to revoke an invitation and require the invitee to leave, thus making him a trespasser if he refuses. However, the occupier cannot argue the invitee became a trespasser when the purpose of revoking the invitation was to facilitate an assault on the invitee’s friend. Mr. Webers was acting under a right or authority conferred by law, which is referred to in s. 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21. That right was the common law right to protect Ms Boys from assault when he reasonably thought she was going to be “severely hurt”. He was not a trespasser.

R. v. Aguirre, 2006 CanLII 45694 (ON SC)

[196] Acting on the information he had acquired, A/Sgt. Anderson believed the accused was a trespasser. He knew Mr. Aguirre was not a school staff member and was apparently unrelated to an enrolled student. The accused did not have the express permission of the occupier to enter or be on the premises. Confronted by St. Sophia staff, Mr. Aguirre had related a deceptive excuse before fleeing from the premises. Aguirre may have been the suspect sought by the task force – an individual caught prowling about in an elementary school. In summary, Anderson believed the accused had entered the school for other than a lawful purpose. A/Sgt. Anderson was not specifically examined as to whether he believed Mr. Aguirre was in breach of s. 2(1)(a)(i) of the Act (entry “when entry is prohibited under [the] Act”) or s. 2(1)(a)(ii) (engaging “in an activity on premises when the activity is prohibited under [the] Act”).

[197] While dictionary definitions of “trespasser” include notions of one who makes an “unlawful or unwarrantable intrusion” on or upon land (The Concise Oxford Dictionary) or who makes “an unwanted or uninvited incursion” on the property of another (Webster’s Ninth New Collegiate Dictionary), the police are authorized to enforce, not general or tortious trespass concepts, but trespass in the narrow and technical terms defined by the Act. In other words, “The Trespass to Property Act relates to a highly specific and limited offence”: R. v. Asante-Mensah (2001), 2003 SCC 38 (CanLII), 157 C.C.C. (3d) 481 (Ont. C.A.) at p. 508 (aff’d (2003), 174 C.C.C. (3d) 481 (S.C.C.)).

Gentles v. Intelligarde International Incorporated, 2010 ONCA 797 (CanLII)

[3] Gentles lived with his mother at 200 Sherbourne Street, a social housing complex in Toronto managed by Toronto Community Housing Corporation (“Toronto Housing”). As Gentles was returning home with Francis, his cousin, at about 11 p.m. on June 14, 2001, they were arrested by Collins and Barnes. Intelligarde, Collins and Barnes’ employer, provides security for the housing complex pursuant to a contract with Toronto Housing.

[4] The appellants brought an action for assault and battery, false arrest and imprisonment by Collins and Barnes, negligence and breaches of the Tenant Protection Act, 1997, S.O. 1997, c. 24 by Intelligarde and Toronto Housing, and a breach of the Occupiers Liability Act, R.S.O. 1990, c. O.2 by Toronto Housing.

[5] After a lengthy jury trial, the trial judge allowed the respondents’ motions for judgment based on his understanding of the jury’s answers and dismissed the action entirely.

[6] On appeal, the appellants attack only the trial judge’s decision to dismiss their action for false arrest and assault and imprisonment against Collins, Barnes and Intelligarde which is vicariously liable for their acts. I refer to these respondents as the Intelligarde respondents.

[7] The appeal turns on whether Collins and Barnes had reasonable and probable grounds to arrest Gentles and Francis under the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”). I find the trial judge erred in deciding the question based on the findings of fact of the jury. I would allow the appeal and enter judgment for the appellants.

...

[54] It is s. 2(1)(b) that must be considered. Before the security guards could reasonably believe that s. 2(1)(b) applied, they had to have a reasonable basis for believing that Gentles and Francis were not residents or guests of residents. The excepting words of the opening of s. 2(1) make clear that a resident and his guest do not contravene s. 2 by failing to leave premises after being directed to do so. The first question, whether Collins and Barnes had reasonable grounds to believe that Gentles and Francis were not residents or guests of residents, is pivotal. The trial judge recognized this because he based his analysis on whether there was “reasonable and probable cause” for believing that Gentles and Francis were trespassing.

R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 SCR 145

69. As has been seen the common law sets a high value on the security and privacy of the home. The situations where it permitted entry by police without the consent of the owner or occupier were all demonstrably compelling. For example, entry to prevent murder is obviously justified. So too is entry on hot pursuit. Apart from the obvious practicality of that approach, in the case of hot pursuit the police officer is himself cognizant of the facts justifying entry; he acts on the basis of personal knowledge. Obviously, too, entry on the basis of a warrant is essential to a properly functioning system of criminal justice. The state must in the end have power to prevent criminals from eluding justice by retreating to a private home.

R. v. Le, 2019 SCC 34 (CanLII), [2019] 2 SCR 692

[44] The police entered the property as trespassers. Our colleague accepts this conclusion. The judicially constructed reasonable person must be taken to know the law and, as such, must be taken to know that the police were trespassing when they entered the backyard (Moldaver J.’s reasons, at para. 257). While not determinative, when the police enter a private residence as trespassers, it both colours what happens subsequently and strongly supports a finding of detention at that point in time.

R. v. Webers, 1994 CanLII 7552 (ON SC)

[1] O’CONNOR J.:—On July 1, 1992, a violent incident happened on the psychiatric floor of the Grey-Bruce Regional Health Centre. Henry Webers was speaking to Heather Boys, a friend who was being involuntarily held there. He was calming her down. He got her to put on her pyjamas. A “Code White” team of eight hospital staff and two Owen Sound police officers had assembled. They rushed into the room to forcibly restrain and medicate Ms Boys. They were going to use leather straps to tie her to a bed. A nurse asked Mr. Webers to leave the room. He refused. He wanted to protect Ms Boys. The police officers then attempted to remove him. A fracas ensued. The three large men wrestled and thrashed about the room and out into the hallway. When the dust had settled, Mr. Webers was in handcuffs, charged with obstruct police, two counts of assault police, assault police with intent to resist arrest and two counts of assault causing bodily harm. All three men were injured, one of the officers seriously. He suffered a herniated disc which was ultimately removed. He was unable to work for almost two years.

...

[9] Mr. Webers left the hospital. Ms Boys stayed the night. On July 1st, she was prescribed Haldol, a neuroleptic and tranquillizer, to be taken every four hours, and when necessary for agitation. Some time later, Ms Boys became agitated, hitting the walls and refusing to change into pyjamas or to take medication. She wanted to go home. Dr. Andreychuk, the “on-call” psychiatrist, and Margaret Sweigard, the nurse in charge, decided to ask Mr. Webers to try to settle her down. Dr. Andreychuk then left the floor. Before Mr. Webers arrived, Ms Boys began kicking, judo style, at a locked door in an attempt to get out of the hospital. Ms Sweigard became alarmed that she might hurt herself. She signalled a “Code White” and summoned the Owen Sound police. A Code White calls seven or eight specially trained nurses and other personnel from around the hospital to deal with a crisis involving an acting‑out mental patient. The team assembled. Mr. Webers arrived. Constables William Rusk and Kevin McDonald arrived, both in uniform and wearing unloaded side-arms. Mr. Webers was given time to talk to Ms Boys. He led her from her room to a larger one. The Code White team waited outside this room. She calmed down and was sitting quietly on a bed. Mr. Webers convinced her to put on her pyjamas. He wanted more time to get her to take some medication. Ms Sweigard said that they did not have more time, because they were taking the time of the two police officers and staff from other areas of the hospital. She then gave a signal and the team rushed into the room. They grabbed Ms Boys’ arms, legs and other parts of her body in order to place leather straps around her chest and extremities and to tie her to the bed. They intended to restrain her to facilitate the injection of a sedative. The police officers were fully involved. One had an arm and one a leg. Ms Sweigard asked Mr. Webers to leave the room until the procedure was completed, when he could return. He refused, fearing that Ms Boys was going to be injured. He wanted to protect her. He and Ms Boys were scared. Ms Sweigard agreed that it was a threatening moment for them. She also agreed that Mr. Webers said he did not want Ms Boys to be hurt. Constable Rusk approached Mr. Webers, placed his hand on his shoulder and said that if he did not leave, he would be arrested. Mr. Webers pulled away. Constable McDonald moved to assist his partner. All three men are large. The two officers each grabbed one of Mr. Weber’s arms. They pushed, shoved and grappled with each other around the room and out into the hallway. Several of the witnesses described the mêlée as a wrestling match. All but one of seven witnesses who described the events said that no punches were thrown. Constable McDonald said Mr. Webers punched him once in the chest. Mr. Webers was kicked in the ribs and shoulders. In the hallway, Mr. Webers pushed Constable McDonald against a railing around the wall, causing him to strike the small of his back against it. The officers, with the assistance of an orderly, finally prevailed. They subdued Mr. Webers on the floor. He then became compliant and asked what they wanted him to do. They handcuffed him.

...

[12] The police officers had received no specific training in Code White procedure. They knew nothing of Ms Boys’ history or current condition or treatment. They did not know of Mr. Webers’ relationship to Ms Boys, nor of his involvement in de-escalating her prior to their arrival. They were not familiar with the Mental Health Act, of the requirement to serve the Form 42, nor of the hospital’s policy on restraint of patients. They were there to control a potentially violent situation using the training they had received as police officers. They took their direction from the Code White team leader, Ms Sweigard, assuming she and the hospital were acting with proper authority.

...

4. Was Henry Webers justified in resisting the officers’ attempts to remove him?

[43] Section 37 of the Criminal Code reads:

37(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

[44] The defence argues that this section entitles Mr. Webers to use force to protect Ms Boys from the assault that was being perpetrated on her. The force used against the officers to resist their attempts to remove him and then to arrest him was, therefore, justified, as it was being used in the defence of Ms Boys. Several questions arise from this position:

(a) What is meant by “…any one under his protection…”?

(b) What is meant by “…no more force than is reasonably necessary…”?

(c) Is the reasonableness test objective or subjective?

(d) Is Mr. Webers a trespasser, such that the police were entitled to remove him at the request of the lawful occupier of the premises?

...

[48] a person “like a son”, R. v. Chisam (1963), 47 Cr. App. R. 130, again followed in Canada in Gambriell v. Caparelli, supra, and “stranger” in R. v. Barkhouse (1983), 1983 CanLII 5098 (NS PC), 58 N.S.R. (2d) 393 (Prov. Ct.), where the accused came to the aid of a motorist who was struggling with a police officer. The court acquitted the accused of assault of a police officer in the execution of his duty, holding that the attempted seizure of the motorist’s vehicle by the police officer was unreasonable under s. 8 of the Charter and, therefore, the officer was not engaged in the execution of his lawful duty. The accused was entitled to use force to defend a person “under his protection”, and the driver was possibly under his protection after he responded to the driver’s call for help. In any event, aid to strangers to prevent assault also constitutes a common law defence. At common law, a person may use force to rescue a person, even a stranger, from attack. The common law right provides a defence to assault that is wider than the statutory defence under s. 37(1) of the Criminal Code, and is preserved by s. 7(3) of the Code.

[49] Thus, the term “under his protection” is not limited to a formal guardianship relationship, such as a parent or guardian and child, or a teacher and student. In its broadest sense, it means anyone who requires protection which the accused may be able to provide. The relationship between Ms Boys and Mr. Webers is included under the provisions of s. 37(1) of the Criminal Code.

...

[55] Mr. Webers is a 51-year-old farmer, whose formal education ended after Grade 8. He was unaware of the reasons for Ms Boys’ detention, its duration or what the Code White team intended to do to her. Even Ms Sweigard agreed that it was a threatening moment for Ms Boys and Mr. Webers. Given his relative lack of sophistication, the information from his son-in-law that harm was sometimes inflicted in mental institutions, and the intimidating and threatening actions of the Code White team in rushing quickly into the room, I find that his fear that Ms Boys was being assaulted was reasonable. In the words of Lamer C.J.C. in Pétel, supra, he “…reasonably believe(d), in the circumstances, that she was being unlawfully assaulted…”. Further, his fear that they were about to “severely hurt” her was, in the circumstances, reasonable. Mr. Webers was justified under s. 37(1) of the Criminal Code in using force to protect Ms Boys from assault. I find the force he attempted to use was proportionate to the harm he reasonably anticipated was going to befall her. He was attempting to break free of the officers’ restraints to assist her. He was not proactively attempting to hurt or subdue them. He simply wanted to be rid of them in order to prevent the assault on his friend. As part of the Code White team, the officers were exceeding their authority in unlawfully and arbitrarily detaining Ms Boys. The Crown has not proven beyond a reasonable doubt that Mr. Webers was not justified in using the force he did to attempt to escape from the control of the officers.

(d) Was Mr. Webers a trespasser?

[56] The Crown argues that, although Mr. Webers was originally an invitee in the room, he became a trespasser. I find that there can be no question that Mr. Webers was not a trespasser. He had been invited by the lawful occupiers of the premises to attend for a specific purpose. He was engaged in carrying out the task asked of him. The occupier of property is entitled to revoke an invitation and require the invitee to leave, thus making him a trespasser if he refuses. However, the occupier cannot argue the invitee became a trespasser when the purpose of revoking the invitation was to facilitate an assault on the invitee’s friend. Mr. Webers was acting under a right or authority conferred by law, which is referred to in s. 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21. That right was the common law right to protect Ms Boys from assault when he reasonably thought she was going to be “severely hurt”. He was not a trespasser.

[57] A most unfortunate aspect, of many, is that these tragic events could have been so easily avoided. If Dr. Babey had taken the time to explain his concerns for Ms Boys’ health, that the hospital attendance was for an assessment only, that it was time-limited and that Ms Boys would not be required to take medication without her consent, perhaps the understanding of what lay ahead would have brought acceptance by her and Mr. Webers. If the hospital personnel—Dr. Look-Hong, Ms Sweigard, the officer in charge and possibly others—had followed the Mental Health Act in serving the Form 42, or at least explaining its contents, again, particularly that the detention was time-limited and that she had the right to counsel, the outcome may have been different. If the, staff had respected the absolute right of Ms Boys, a competent person, to refuse treatment and had not become impatient, the necessity for restraints may not even have been contemplated. If they had permitted Mr. Webers to complete the job they had asked him to do, the ensuing events would probably have not occurred.

[58] In the result, three persons were physically injured, one severely and probably permanently. A woman has been traumatized and her Charter and civil rights disregarded. And a productive member of society has endured the vagaries, expense and vicissitudes of our criminal justice system. However, it is now over for Henry Webers. Sir, I find you not guilty of all the counts before this court.

Accused acquitted.

M. (A.) v. Benes, 1999 CanLII 3807 (ON CA)

[42] An S.D.M. does not stand in the shoes of an incapable person at least on questions of consent to treatment. The S.D.M. is important but only as part of a statutory régime which, by its terms, tries to respect an incapable person's well-being and dignity where that person's consent or refusal to treatment cannot be established.

[43] Nor is an S.D.M. chosen by the incapable person when capable, absent a power of attorney for personal care. The present case is a good example. A.M. became the S.D.M. for A.T.M. by the operation of the statute. Nothing in the record suggests that A.T.M. "chose" her mother to be the S.D.M. A.T.M. may never have considered the question.

[44] Moreover, although sometimes an S.D.M. will know better than the Board about an incapable person's beliefs, values and previous non-binding wishes, that will not always be so. Not all family members are close, and even when they are close, they do not always know what treatment the incapable person would want. Even so, the Act respects the values, beliefs and previous non-binding wishes of the incapable person that are known to the S.D.M. The S.D.M., not the treating health care practitioner or the Board, makes the initial treatment decision. The Board, though it may substitute its opinion for that of the S.D.M., must nonetheless take into account the S.D.M.'s submissions on the incapable person's values, beliefs and non-binding wishes because these criteria are part of the best interest test under s. 21(2) of the Act and the Board must apply s. 21(2).

Gray v. Ontario, 2006 CanLII 1764 (ON SCDC)

[49] Section 68 of the Substitute Decisions Act, 1992 is limited by its own terms to matters arising in a guardianship or Power of Attorney for personal care. In many cases, the Act will not apply because the incapacitated resident has neither a guardian nor attorney to represent his or her interests. In that event, directions should be sought from the Superior Court of Justice under its inherent parens patriae jurisdiction.

[50] The Substitute Decisions Act, 1992 operates to codify certain matters that would otherwise fall within the Court’s common law parens patriae jurisdiction. However, the Act does not otherwise limit this important historical power to protect the interests of children and incapacitated adults. It has been recognized that the parens patriae jurisdiction can be exercised where there is no applicable statutory scheme in place or where there is a “gap” in the existing legislative framework, see Dumas v. Dumas, 1992 CanLII 7451 (ON SC), [1992] 10 O.R. (3d) 20 at 24 (Gen. Div.). In E. (Mrs.) v. Eve, Justice La Forest stated that the parens patriae jurisdiction “continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit.” See E. (Mrs.) v. Eve, [1986] 23 S.C.R. 388 at 410-11.

[51] I observe that in view of my conclusion that the Minister has statutory authority under the Developmental Services Act to close the remaining Schedule I facilities, the option of continuing to reside there in the long-term will not be open to the remaining residents. Substitute decision makers must act, as indeed the court will act, “… to do what is necessary for the benefit and protection of persons under disability”, per La Forest J. in E. (Mrs.) v. Eve, supra, at 430. This will necessarily involve participating in good faith in the Ministry’s current program to identify suitable group homes and other community placements for the residents. The Minister will be expected to honour the government’s public commitment, repeated in argument before this Court, not to move any of the current residents of the three institutions until suitable community placements are available. In those, hopefully, few cases where the Ministry and the substitute decision makers cannot agree on the best interests of the incapable individual, in regard to his or her community placement or in regard to related issues, the direction of the Superior Court of Justice may be sought under its statutory or its parens patriae jurisdiction. Counsel for the Ministry stated in argument that the Ministry would initiate such an application where the court’s direction was required. I regard this as appropriate.

[52] As none of the Applicants represented residents of the Southwestern Regional Centre, the order of this Court will not technically include residents of that institution. However, the matters decided herein are of obvious application to the residents of SRC.

DD (Re), 2013 CanLII 18799 (ON CCB)

The panel was advised that there had not been within the previous six months a determination by the Board of DD’s capacity to consent to the proposed treatment in this case. The panel was also advised that DD did not have a Guardian of the Person or a Power of Attorney for Personal Care containing a provision waiving his right to apply for the review of the health practitioner’s findings in accordance with Section 32 of the Health Care Consent Act. We determined that the Board had jurisdiction to continue with the Hearing. The Board made an Order excluding witnesses.

...

We confirmed Dr. Fowler's finding that DD was incapable of giving or refusing consent to the proposed treatment. We also determined that that PD the substitute decision maker has not complied with the principles for substitute decision making set out in the Health Care Consent Act. The Board directed PD to consent to the proposed plan which would see DD’s removal from mechanical ventilation, providing oxygen non-invasively as required, not escalating organ support should he deteriorate (not starting dialysis and performing cardiopulmonary resuscitation if he should suffer a cardiac or respiratory arrest) and instead focus upon a palliative care plan. We gave PD until 12:00 p.m. February 14, 2013 to consent.

Tenants and Occupants

Powers of Attorney Act, R.S.O. 1990, c. P.20

1 In this Act, “attorney” means the donee of a power of attorney or where a power of attorney is given to two or more persons, whether jointly or severally or both, means any one or more of such persons. R.S.O. 1990, c. P.20, s. 1; 1992, c. 32, s. 24 (1).

2 A general power of attorney for property is sufficient authority for the donee of the power or, where there is more than one donee, for the donees acting jointly or acting jointly and severally, as the case may be, to do on behalf of the donor anything that the donor can lawfully do by an attorney, subject to such conditions and restrictions, if any, as are contained therein. R.S.O. 1990, c. P.20, s. 2; 1992, c. 32, s. 24 (2) .

Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1

3 (1) Every licensee of a long-term care home shall ensure that the following rights of residents are fully respected and promoted:

...

6. Every resident has the right to communicate in confidence, receive visitors of their choice and consult in private with any person without interference.

7. Every resident has the right to form friendships and relationships and to participate in the life of the long-term care home.

8. Every resident has the right to share a room with another resident according to their mutual wishes, if appropriate accommodation is available.

9. Every resident has the right to meet privately with their spouse or another person in a room that assures privacy.

...

15. Every resident has the right to exercise the rights of a citizen.

...

...

(3) A resident may enforce the Residents’ Bill of Rights against the licensee as though the resident and the licensee had entered into a contract under which the licensee had agreed to fully respect and promote all of the rights set out in the Residents’ Bill of Rights.

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

2 (1) In this Act,

...

“landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,

(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and

(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)

...

“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”)

Health Care Consent Act, 1996

2 (1) In this Act,

...

“personal assistance service” means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service; (“service d’aide personnelle”)

...

“recipient” means a person who is to be provided with one or more personal assistance services,

(a) in a long-term care home as defined in the Fixing Long-Term Care Act, 2021,

(b) in a place prescribed by the regulations in the circumstances prescribed by the regulations,

(c) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or

(d) by a provider prescribed by the regulations in the circumstances prescribed by the regulations; (“bénéficiaire”)

...

“care facility” means,

(a) a long-term care home as defined in the Fixing Long-Term Care Act, 2021, or

(b) a facility prescribed by the regulations as a care facility; (“établissement de soins”)

...

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1996, c. 2, Sched. A, s. 4 (1).

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. 1996, c. 2, Sched. A, s. 4 (2).

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be. 1996, c. 2, Sched. A, s. 4 (3).

...

9 In this Part,

“substitute decision-maker” means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment. 1996, c. 2, Sched. A, s. 9.

...

20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person’s spouse or partner.

5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person. 1996, c. 2, Sched. A, s. 20 (1); 2016, c. 23, s. 51 (1); 2021, c. 4, Sched. 11, s. 14 (1, 2).

(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent. 1996, c. 2, Sched. A, s. 20 (2); 2021, c. 4, Sched. 11, s. 14 (3).

(3) A person described in a paragraph of subsection (1) may give or refuse consent only if no person described in an earlier paragraph meets the requirements of subsection (2). 1996, c. 2, Sched. A, s. 20 (3).

(4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may give or refuse consent if he or she believes that no other person described in an earlier paragraph or the same paragraph exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision. 1996, c. 2, Sched. A, s. 20 (4).

(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent. 1996, c. 2, Sched. A, s. 20 (5).

...

21 (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests. 1996, c. 2, Sched. A, s. 21 (1).

(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether the treatment is likely to,

i. improve the incapable person’s condition or well-being,

ii. prevent the incapable person’s condition or well-being from deteriorating, or

iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed. 1996, c. 2, Sched. A, s. 21 (2).

...

33 (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf. 1996, c. 2, Sched. A, s. 33 (1).

(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person. 1996, c. 2, Sched. A, s. 33 (2).

(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority. 1996, c. 2, Sched. A, s. 33 (3).

(4) The parties to the application are:

1. The incapable person.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1).

4. The health practitioner who proposed the treatment.

5. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 33 (4).

(5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person’s behalf,

(a) to the proposed treatment;

(b) to one or more treatments or kinds of treatment specified by the Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or

(c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it. 1996, c. 2, Sched. A, s. 33 (5).

(6) The Board may make an appointment under this section if it is satisfied that the following requirements are met:

1. The incapable person does not object to the appointment.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person’s best interests. 1996, c. 2, Sched. A, s. 33 (6).

...

41 Section 20 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission. 1996, c. 2, Sched. A, s. 41.

...

56 In this Part,

“substitute decision-maker” means a person who is authorized under section 58 to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service. 1996, c. 2, Sched. A, s. 56.

57 (1) If a recipient is found by an evaluator to be incapable with respect to a personal assistance service, a decision concerning the service may be made on the recipient’s behalf by his or her substitute decision-maker in accordance with this Act. 1996, c. 2, Sched. A, s. 57 (1).

...

58 For the purpose of determining who is authorized to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service,

(a) section 20, except subsections 20 (5) and (6), applies with necessary modifications;

(b) if no person described in subsection 20 (1) meets the requirements of subsection 20 (2), the Public Guardian and Trustee may make the decision concerning the personal assistance service; and

(c) if two or more persons who are described in the same paragraph of subsection 20 (1) and who meet the requirements of subsection 20 (2) disagree about the decision to be made concerning the personal assistance service, and if their claims rank ahead of all others, the Public Guardian and Trustee may make the decision in their stead. 1996, c. 2, Sched. A, s. 58.

...

60 (1) Before making a decision on an incapable recipient’s behalf concerning a personal assistance service, a substitute decision-maker is entitled to receive all the information required in order to make the decision. 1996, c. 2, Sched. A, s. 60.

(2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004. 2004, c. 3, Sched. A, s. 84 (10).

Riggs Estate v. Intact, 2019 ONSC 6846 (CanLII)

[33] Intact relied on the text of the SDN which presumes signature by the insured person. For example, on the first page of the form is a “Notice and Caution” directed to the insured which states in part: “your insurer is required to give you this settlement disclosure notice if you have both agreed on a cash settlement…”. On page 3 of the form is a section entitled “What does it mean if you settle your claim?” The pronoun “you” appears frequently, making it clear that the instructions are directed to the insured. Likewise, above the space for the insured’s acknowledgment and signature on page seven of the SDN is a box with the heading: “If you change your mind and want to rescind the settlement”.

[34] Although Intact submits that the Regulations provide that the insured person must execute the SDN personally, I do not find that to be the case. At most, there is a presumption that the insured person will sign. The fact that there is no statutory provision to allow for a signature on behalf of the insured is not determinative. It is not uncommon for a recipient of SABs to be either under the age of majority, or suffering a physical or mental disability. In neither case could the person complete the SDN without the assistance of a personal representative. If Intact is correct in its position, there would be no possibility for such a person to conclude a settlement. That cannot be a reasonable interpretation of the legislation or the legislative intent behind it. I see no distinction between an insured under a disability who cannot sign an SDN and a deceased insured. In both cases, an authorized personal representative must be able to sign for the person.

[35] For the foregoing reasons, but for my conclusion that the court does not have jurisdiction to determine the issue, I would have found that the settlement between Gerald Riggs and Intact is binding and enforceable.

_{SDN, means "Settlement Disclosure Notice" - This note is not in the original case text and is for reference only}

Estates Administration Act, R.S.O. 1990, c. E.22

1 In this Act,

“court” means the Superior Court of Justice; (“cour”)

“judge” means a judge of the Superior Court of Justice; (“juge”)

“mentally incapable person” means a person who is incapable as defined in the Substitute Decisions Act, 1992, whether or not the person has a guardian or an attorney for property under a continuing power of attorney for property; (“incapable mental”)

“personal representative” means an executor, an administrator, or an administrator with the will annexed. (“représentant successoral”) R.S.O. 1990, c. E.22, s. 1; 2006, c. 19, Sched. C, s. 1 (1); 2009, c. 33, Sched. 2, ss. 31 (1, 2).

Sarmento v. IA Financial Group, 2022 HRTO 1233 (CanLII)

[6] A “personal representative” is defined in s.1 of the Estates Administration Act, R.S.O. 1990, c. E.22, as “an executor, an administrator, or an administrator with the will annexed.” Pursuant to s. 2 of that legislation, on a person’s death, all real and personal property that does not pass by right of survivorship devolves to and becomes vested in his or her personal representative. Section 7(1) of the Estates Act, R.S.O. 1990, c. E.21, provides that an application for a grant of probate or letter of administration must be “made to the Superior Court of Justice” and then filed with the county or district where the decedent resided.

[7] This Tribunal has determined, where the applicant is deceased, it has no authority to proceed without the appointment of an estate trustee. In Denham v. Hamilton Health Sciences Volunteer Association (“Denham”), 2012 HRTO 858, at paragraph 13 the Tribunal found that its “…general procedural powers cannot override clear and comprehensive statutory provisions that provide for the appointment by a court of a person or persons to control estate’s assets and make decisions on its behalf”. See also, Donaldson v. Waters Edge Care Community, 2017 HRTO 137 and Pankoff v. St. Thomas (City), 2019 HRTO 993.

[8] Though I appreciate the applicant’s submissions, the Application cannot proceed absent a Certificate of Appointment of Estate Trustee, even if the applicant is an executor. See Dorrington v. London Health Sciences Centre, 2018 HRTO 1483.

Canada Business Corporations Act, (R.S.C., 1985, c. C-44)

personal representative means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a liquidator of a succession, an administrator of the property of others, a guardian or tutor, a curator, a receiver or sequestrator, an agent or mandatary or an attorney; 

R.R.O. 1990, Reg. 636: GENERAL: under Homes for Special Care Act, R.S.O. 1990, c. H.12

1. In this Regulation,

...

“trustee” means the Public Guardian and Trustee, a guardian of property duly appointed under the Substitute Decisions Act, 1992, an attorney under a continuing power of attorney, a trustee duly appointed under a statute, a will or other instrument. R.R.O. 1990, Reg. 636, s. 1; O. Reg. 376/93, s. 1; O. Reg. 66/00, s. 1; O. Reg. 651/00, s. 1; O. Reg. 329/05, s. 1.

Bank Act, (S.C. 1991, c. 46)

personal representative means a person who stands in place of and represents another person and, without limiting the generality of the foregoing, includes, as the circumstances require, a trustee, an executor, an administrator, a committee, a guardian, a tutor, a curator, an assignee, a receiver, an agent or an attorney of any person, but does not include a delegate; (représentant personnel)

Estate of K.D.F. v.TD General Insurance Company, 2022 CanLII 20127 (ON LAT)

[34] Riggs Estate v. Intact is directly on point. In that case, the insured died prior to executing the settlement documents. As is the case here, the insurer argued that the Regulations provided that the insured person must execute the SDN personally. The Superior Court disagreed, stating that at most while there is a presumption that the insured person will sign the document, it is not uncommon for a recipient of accident benefits to be under the age of majority or be suffering from a physical or mental disability that legally prevents them from signing the document without the assistance of a representative. The Court opined that there is no distinction between an insured under disability who cannot sign an SDN and a deceased insured, ultimately finding that an authorized personal representative must be allowed to sign for the insured person. Justice Reid held that the Court would have found the settlement between the parties binding and enforceable if such a dispute was not subject to this Tribunal’s jurisdiction.[2] While I agree with TD Insurance these comments are obiter dicta, I see no basis to depart from the reasoning.

(...)

[36] In my view, as the applicant’s sister was appointed by the court and has already been permitted to sign off on the other settlements that occurred at the same global mediation, she is clearly an authorized personal representative who is able to sign the SDN and release here. With the applicant’s sister installed as the Litigation Administrator for the Estate, there is accordingly no distinction between the applicant’s death preventing her from signing the SDN and, for example, a minor who is legally incapable of signing an SDN or an adult who lacks capacity as a result of a catastrophic brain injury to understand and direct counsel to sign an SDN, both of which occur regularly in accident benefit settlements. To borrow from the Court of Appeal’s analysis in The Estate of Rebecca Wu, I “disagree that the settlement died” with the applicant where, prior to her death, her claim for accident benefits had, by virtue of the settlement, become a contractual right to the agreed amount and which devolved to her Estate upon her death.[3]