Legally Conferred Authority (TPA)(RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-18
CLNP Page ID:	2341
Page Categories:	[Trespass to Property],[Interference of Reasonable Enjoyment (LTB)]
Citation:	Legally Conferred Authority (TPA)(RTA), CLNP 2341, <>, retrieved on 2024-05-18
Editor:	Sharvey
Last Updated:	2024/02/09

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.

...

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).

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.).

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.