Severance of a Party to a Lease (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	2284
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB)
Citation:	Severance of a Party to a Lease (LTB), CLNP 2284, <https://rvt.link/8z>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2023/09/26

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Properties v Northmore, 2018 CanLII 153456 (ON LTB)

64. Where one joint tenant wants to vacate a unit and the other wants to remain, three distinct interests are engaged: the Landlord’s contractual interest in holding both tenants liable for the tenancy; the vacating tenant’s interest in divesting themself of a liability for which they will no longer receive any benefit; and the remaining tenant’s interest in keeping their home. Ultimately, it is the role of the Legislature, not the Board, to decide how those interests should be balanced.

65. I have concluded that, in the current state of the law, the vacating tenant is not able to divest themself of the tenancy. They may potentially be found liable for contraventions long after they have vacated. Fair or not, in my view that is how the law currently balances the parties’ interests.

66. That being said, the law is not entirely settled. It is possible that I am wrong and that the vacating tenant can unilaterally terminate the entire tenancy. That would certainly not be a fair outcome for the tenant who wants to remain, and in my view it would run counter to the fundamental purposes of the RTA. However, there is a line of cases taking that approach, and the question has not been settled by any binding precedent.

67. Unless the Landlord consents, I have concluded that the law does not permit Ms. Huntley to remove herself from the tenancy unless the entire tenancy is terminated. In short, the Landlord’s interest in holding both Respondents liable trumps Ms. Huntley’s interest in divestment. Whether that is the best way to balance the parties’ competing interests is not for me to say.

68. In the result, I find that the tenancy has not been severed and Ms. Huntley’s interest in it has not terminated. The Respondents are joint tenants. The settlement the parties have agreed to will be effective against both of them.

69. Although evidence was adduced as to whether or not Ms. Huntley is currently living in the unit, I make no finding on that question as it does not affect the outcome of this case.

Opara v. Cook, 2008 CanLII 22923 (ON SCDC)

[6] A tenancy agreement came into effect on December 11, 2006 upon the agreement being reached between the parties and the deposit being paid. There is no real dispute that such an agreement was reached. Mr. Opara purported to unilaterally terminate that agreement on December 13, 2006. The only real issue is whether he was entitled to do so. In this regard, ss. 9(1) and 9(2) of the Tenant Protection Act are irrelevant as they deal only with when the “term” of the tenancy commences. This has nothing to do with whether either party can rescind the agreement prior to the date of occupancy. Ordinary rules of contract law apply. There is no unilateral right to rescind a contract that has been duly entered into by the parties simply because the effective date of the contract has not yet been reached.

TET-05754-10 (Re), 2010 CanLII 52145 (ON LTB)

2. In a ruling by the Divisional Court in “Opara v Cook” the Court stated “Ordinary rules of contract law apply. There is no unilateral right to rescind a contract that has been duly entered into by the parties simply because the effective date of the contract has not been reached”. In this matter the parties entered into a rental contract and the Tenant wanted to unilaterally rescind his offer to rent. The Tenant resolved his domestic situation and decided to back out of the contract. As cited above this is not permitted under the ordinary rules of contract law.

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

47.1 (1) Despite subsections 44 (2) to (4) and section 47, a tenant may terminate a monthly or yearly tenancy or a tenancy for a fixed term by giving notice of termination to the landlord in accordance with this section if,

(a) the tenant is deemed under subsection 47.3 (1) to have experienced violence or another form of abuse; or

(b) a child residing with the tenant is deemed under subsection 47.3 (1) to have experienced violence or another form of abuse. 2016, c. 2, Sched. 6, s. 1.

(2) A joint tenant who meets the requirement in clause (1) (a) or (b) may,

(a) give a notice of termination of the tenancy under subsection (1), provided the notice is given jointly with all the other joint tenants; or

(b) give a notice of termination of his or her interest in the tenancy under subsection 47.2 (1). 2016, c. 2, Sched. 6, s. 1.

(3) A notice under subsection (1) shall be given at least 28 days before the date the termination is specified to be effective. 2016, c. 2, Sched. 6, s. 1.

(4) A notice under subsection (1) shall,

(a) comply with subsection 43 (1); and

(b) be accompanied by,

(i) a copy of an order described in clause 47.3 (1) (a), (b) or (c) and issued not more than 90 days before the date the notice is given, or

(ii) a statement referred to in clause 47.3 (1) (d), (e) or (f). 2016, c. 2, Sched. 6, s. 1.

(5) The landlord to whom a notice is given with respect to a rental unit under subsection (1) may enter the unit in accordance with subsection 26 (3) only after the tenant or all the joint tenants, as applicable, have vacated the unit in accordance with the notice and, for that purpose, clause 26 (3) (c) does not apply. 2016, c. 2, Sched. 6, s. 1.

47.2 (1) A joint tenant may terminate his or her interest in a monthly or yearly tenancy or in a tenancy for a fixed term by giving notice of termination to the landlord in accordance with this section if,

(a) the tenant is deemed under subsection 47.3 (1) to have experienced violence or another form of abuse; or

(b) a child residing with the tenant is deemed under subsection 47.3 (1) to have experienced violence or another form of abuse. 2016, c. 2, Sched. 6, s. 1.

(2) A joint tenant who meets the requirement in clause (1) (a) or (b) may give a notice under subsection (1),

(a) either solely; or

(b) jointly with some but not all of the other joint tenants. 2016, c. 2, Sched. 6, s. 1.

(3) A notice under subsection (1) shall be given at least 28 days before the date the termination is specified to be effective. 2016, c. 2, Sched. 6, s. 1.

(4) A notice under subsection (1) shall,

(a) be in a form approved by the Board;

(b) identify the rental unit for which the notice is given;

(c) state the date on which the interest in the tenancy is to terminate;

(d) be signed by the tenant or tenants giving the notice, or their agent; and

(e) be accompanied by,

(i) a copy of an order described in clause 47.3 (1) (a), (b) or (c) and issued not more than 90 days before the date the notice is given, or

(ii) a statement referred to in clause 47.3 (1) (d), (e) or (f). 2016, c. 2, Sched. 6, s. 1.

(5) A notice given under subsection (1) becomes void with respect to a tenant who gave the notice, if the tenant does not vacate the rental unit on or before the termination date set out in the notice. 2016, c. 2, Sched. 6, s. 1.

(6) A tenant who gave notice under subsection (1) and vacates the rental unit on or before the termination date set out in the notice ceases to be a tenant and a party to the tenancy agreement on the termination date, but this subsection does not affect any right or liability of the tenant arising from any breach of obligations that relates to the period before the termination. 2016, c. 2, Sched. 6, s. 1.

(7) For greater certainty, a notice under subsection (1) is not a notice of termination of the tenancy for the purposes of this Act, including without limiting the generality of the foregoing, for the purposes of subsections 37 (2) and (3), subsection 46 (1) and clause 77 (1) (b). 2016, c. 2, Sched. 6, s. 1.

(8) Any rent deposit paid to the landlord or a former landlord in respect of the tenancy shall enure to the benefit of the tenant or tenants who did not give the notice under subsection (1) and any tenant in respect of whom the notice becomes void under subsection (5). 2016, c. 2, Sched. 6, s. 1.

(9) Despite subsections 44 (3) and (4) and section 47, after a joint tenant has ceased to be a tenant and a party to the tenancy agreement in accordance with subsection (6), any tenant referred to in subsection (8) may terminate a yearly tenancy or a tenancy for a fixed term by giving notice of termination to the landlord in accordance with the following:

1. The notice shall be given at least 60 days before the date the termination is specified to be effective.

2. If there is more than one tenant, notice shall be given jointly by all of them.

3. The notice shall comply with subsection 43 (1). 2016, c. 2, Sched. 6, s. 1.

(10) Subsection 44 (5) applies with necessary modifications with respect to a notice given under subsection (9). 2016, c. 2, Sched. 6, s. 1.

47.3 (1) For the purposes of sections 47.1 and 47.2, a tenant of a rental unit or a child residing with the tenant is deemed to have experienced violence or another form of abuse if,

(a) an order has been made under subsection 810 (3) of the Criminal Code (Canada) against a person mentioned in subsection (4) and the order includes one or more conditions described in subsection 810 (3.2) of that Act relating to the tenant, the child or the rental unit;

(b) an order has been made under section 46 of the Family Law Act against a person mentioned in subsection 46 (2) of that Act and the order includes one or more provisions described in subsection 46 (3) of that Act relating to the tenant, the child or the rental unit;

(c) an order has been made under section 35 of the Children’s Law Reform Act against a person mentioned in subsection (4) and the order includes one or more provisions described in subsection 35 (2) of that Act relating to the tenant, the child or the rental unit;

(d) the tenant alleges that any of the following acts or omissions has been committed by a person mentioned in subsection (4) against the tenant or the child and the allegation is made in a statement that complies with the requirements in subsection (5):

(i) an intentional or reckless act or omission that caused bodily harm to the tenant or the child or damage to property,

(ii) an act or omission or threatened act or omission that caused the tenant or the child to fear for his or her own safety or the child’s safety,

(iii) forced confinement of the tenant or the child, without lawful authority, or

(iv) a series of acts which collectively caused the tenant or the child to fear for his or her own safety or the child’s safety, including following, contacting, communicating with, observing or recording the tenant or the child;

(e) the tenant alleges that sexual violence has been committed against the tenant or the child and the allegation is made in a statement that complies with the requirements in subsection (5); or

(f) the tenant alleges that an act or omission prescribed for the purposes of this clause has been committed against the tenant or the child and the allegation is made in a statement that complies with the requirements in subsection (5). 2016, c. 2, Sched. 6, s. 1.

(2) In this section,

“sexual violence” means any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation. 2016, c. 2, Sched. 6, s. 1.

(3) Subsection (1) does not apply with respect to,

(a) an order described in clause (1) (b) that was made against the tenant; or

(b) sexual violence or an act or omission referred to in clause (1) (f) that is alleged to have been committed by the tenant. 2016, c. 2, Sched. 6, s. 1.

(4) The person against whom an order described in clause (1) (a) or (c) was made and the person who is alleged to have committed an act or omission described in clause (1) (d) must be,

(a) a spouse or former spouse of the tenant;

(b) a person other than a spouse or former spouse of the tenant, who is living with the tenant in a conjugal relationship outside marriage, or who has lived with the tenant in a conjugal relationship outside marriage for any period of time, whether or not they are living in a conjugal relationship at the time the tenant gives a notice under subsection 47.1 (1) or 47.2 (1);

(c) a person who is or was in a dating relationship with the tenant; or

(d) a person who resides in the rental unit and who is related, including through marriage, to the tenant or to a child who resides with the tenant. 2016, c. 2, Sched. 6, s. 1; 2016, c. 23, s. 66.

(5) A statement referred to in clause (1) (d), (e) or (f) shall comply with the following requirements:

1. The statement shall be in a form approved by the Board.

2. The statement shall identify the rental unit to which it relates.

3. The statement shall include an allegation that one or more of the following has occurred:

i. an act or omission described in clause (1) (d) has been committed against the tenant or a child residing with the tenant by a person mentioned in subsection (4),

ii. sexual violence, as defined in subsection (2), has been committed against the tenant or a child residing with the tenant, or

iii. an act or omission prescribed for the purposes of clause (1) (f) has been committed against the tenant or a child residing with the tenant.

4. The statement need not,

i. describe the circumstances of the sexual violence or of the act or omission,

ii. specify whether the occurrence is an occurrence of an act or omission referred to in subparagraph 3 i or iii or an occurrence of sexual violence referred to in subparagraph 3 ii,

iii. identify the person who is alleged to have committed the sexual violence or the act or omission, either by name or by the person’s relationship to the tenant or the child residing with the tenant, or

iv. specify whether the sexual violence or the act or omission is alleged to have been committed against the tenant or a child residing with the tenant.

5. The statement shall include an assertion that, as a result of the sexual violence or the act or omission committed against the tenant or the child, the tenant believes that he or she or the child may be at risk of harm or injury, if he or she or the child continues to reside in the rental unit.

6. The statement shall be signed by the tenant. 2016, c. 2, Sched. 6, s. 1.

(6) In any proceeding under this Act where one of the issues to be determined by the Board is whether a person is deemed under subsection (1) to have experienced violence or another form of abuse, the Board may inquire into and make a determination as to whether the documentation accompanying the notice is genuine and is a copy of an order described in clause (1) (a), (b) or (c) or is a statement referred to in clause (1) (d), (e) or (f), but the Board may not inquire into or make any determination as to the truth of or the belief in the truth of any allegation or assertion referred to in paragraph 3 or 5 of subsection (5). 2016, c. 2, Sched. 6, s. 1.

47.4 (1) A landlord to whom a notice is given under subsection 47.1 (1) or 47.2 (1) shall keep confidential and shall not, except as provided in subsections (2) to (5), disclose to any person or entity the fact that the notice has been given, the notice or accompanying documentation or any information included in the notice or accompanying documentation. 2016, c. 2, Sched. 6, s. 1.

(2) Subsection (1) does not prevent the landlord to whom a notice is given under subsection 47.1 (1) or 47.2 (1) from disclosing the fact that the notice has been given, the notice or accompanying documentation or any information included in the notice or accompanying documentation,

(a) to an employee in the Ministry, an investigator appointed under section 229 or any other representative of the Ministry, in connection with the investigation or prosecution of an alleged offence under this Act;

(b) to a law enforcement agency, but only upon request made by the law enforcement agency in connection with an investigation;

(c) to a person who is authorized under the Law Society Act to practise law or provide legal services in Ontario and who provides services to the landlord;

(d) to the Board, an employee in the Board or an official of the Board, for the purposes of any proceeding under this Act where one of the issues to be determined by the Board is whether notice was properly given under subsection 47.1 (1) or 47.2 (1);

(e) with the consent of the tenant who gave the notice and who meets the requirement in clause 47.1 (1) (a) or (b) or 47.2 (1) (a) or (b);

(f) to the extent that the information is available to the public; or

(g) as otherwise required by law. 2016, c. 2, Sched. 6, s. 1.

(3) Subsection (1) does not prevent the landlord to whom a notice is given with respect to a rental unit under subsection 47.2 (1) from disclosing the following information to any tenant referred to in subsection 47.2 (8) after the termination date specified in the notice and after the joint tenant or tenants have vacated the rental unit in accordance with the notice:

(a) the fact that a notice was given under subsection 47.2 (1); and

(b) the termination date specified in the notice. 2016, c. 2, Sched. 6, s. 1.

(4) Subsection (1) does not prevent the landlord to whom a notice is given with respect to a rental unit under subsection 47.1 (1) from advertising the rental unit for rent,

(a) during the notice period, but only if the rental unit is not mentioned in the advertisement and cannot otherwise be identified from the advertisement;

(b) after the tenant or all the joint tenants, as applicable, have vacated the rental unit in accordance with the notice; or

(c) if the tenant or joint tenants, as applicable, do not vacate the rental unit in accordance with the notice, after the tenancy has otherwise been terminated. 2016, c. 2, Sched. 6, s. 1.

(5) Subsection (1) does not prevent the landlord to whom a notice is given with respect to a rental unit under subsection 47.1 (1) or 47.2 (1) from disclosing the fact that the notice has been given, the notice or accompanying documentation or any information included in the notice or accompanying documentation to a superintendent, property manager or any other person who acts on behalf of the landlord with respect to the rental unit, if the person needs to know that fact or requires the notice or accompanying documentation or the information for the purposes of performing the person’s duties on behalf of the landlord with respect to the rental unit. 2016, c. 2, Sched. 6, s. 1.

(6) Subsections (1) to (4) apply with necessary modifications to a person to whom a landlord discloses, as provided in subsection (5), the fact that notice has been given with respect to a rental unit under subsection 47.1 (1) or 47.2 (1), the notice or accompanying documentation or any information included in the notice or accompanying documentation. 2016, c. 2, Sched. 6, s. 1.

...

234 A person is guilty of an offence if the person,

...

(b.1) contravenes subsection 47.4 (1);

...

238 (1) A person, other than a corporation, who is guilty of an offence under this Act is liable on conviction to a fine of not more than $50,000. 2006, c. 17, s. 238 (1); 2020, c. 16, Sched. 4, s. 35 (1).

(2) A corporation that is guilty of an offence under this Act is liable on conviction to a fine of not more than $250,000. 2006, c. 17, s. 238 (2); 2020, c. 16, Sched. 4, s. 35 (2).