Temporary Full-Time Occupancy (N12)

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Date Retrieved:	2025-02-20
CLNP Page ID:	2453
Page Categories:	[Personal Use Application (LTB)]
Citation:	Temporary Full-Time Occupancy (N12), CLNP 2453, <https://rvt.link/eq>, retrieved on 2025-02-20
Editor:	Sharvey
Last Updated:	2025/01/07

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MacDonald v. Richard 2008 CarswellOnt 638 (Divisional Court)

1 For purposes of this decision we will accept, without specifically deciding, that the standard of correctness will apply, as that is the standard more advantageous to the appellant. We are of the view that the Review Decision by Member Ellacott on June 19, 2007 that "temporary full-time occupancy for four months does not constitute the purpose of residential occupation as contemplated by the Residential Tenancies Act, 2006" is correct. That conclusion is supported by case law directly on point that has held that a landlord is not entitled to evict an existing tenant in order to provide accommodation for his daughter on summer break from university: Wiazek v. Armstrong, (1994) O.J. No. 2737 (Ont. Gen. Div.) . See also, McDonald v Smith, (1993) O.J. No. 1680 (Ont. Gen. Div.) . It is also an interpretation that is consistent with the intention of the legislation, which is remedial in nature and directed towards the protection of tenants, including protecting the security of tenure for tenants. Accordingly, this appeal is dismissed. Costs fixed at $ 1000.00 payable by the appellant.

TST-94128-18 (Re), 2018 CanLII 123282 (ON LTB)

17. The law is clear that “residential occupation” as it is used in s.48(1) of the Act (under which the Landlords served the N12) does not include temporary full-time use.

18. The Ontario Divisional Court in the case of MacDonald v. Richard (2008) O.J. 6076 (Ont. Div. Ct.) (“MacDonald”), ruled that temporary full-time occupancy of a residential unit (which in MacDonald was four months) does not constitute “residential occupation” as contemplated in s.48(1) of the Act. MacDonald has been followed by the Board in a number of decisions, including TSL-2128-11; TSL-52712-14; TSL-62689-15; TSL-76374-16; and TSL-80318-16.

TSL-08570-10 (Re), 2010 CanLII 76079 (ON LTB)

4. In Wiazek v. Arnstrong [1994] O.J. No. 2737 (Gen. Div) involved a case where the Landlord wanted the house to store his personal possessions but planned to continue to live in his girlfriend’s house and would therefore only be at his own house part of the time. The court dismissed the landlord’s own use application as the landlord would not be residing on a full time basis.

5. The Landlord testified that both he and his son would use the residential unit occasionally and had no intention of making this their principal residence. Having regard for the degree and type of use intended for the rental unit, I am not satisfied that the Landlord’s use of the rental unit constitutes “residential occupation” as contemplated by the Act. Therefore, I find that the Landlord has failed to meet the burden of proof that he in good faith requires possession of the unit for the purpose of residential occupation.

Kohen v. Warner, 2018 ONSC 3865 (CanLII)

[11] In our view, it is clear from the Member’s reasons, read as a whole, that the Member did not misstate the law in MacDonald nor did he decide the outcome of this case solely on the basis of MacDonald. The Member correctly stated s. 48(1) of the Act and the test in that section that applied. The Member further referred to the cases cited in MacDonald, and to other Board cases, in which occasional occupation of a unit by a landlord’s family was held not to be sufficient to displace a tenant. The Member then applied the principles from those cases to the facts before him to conclude that the proposed intermittent use of the unit by Sedat did not entitle the Landlord to terminate the existing tenancy pursuant to s. 48(1) of the Act.