Vacant Possession
TEL-82549-17 (Re), 2017 CanLII 93931 (ON LTB)
5. The Occupants hired a moving truck for several hours, they had help from friends to move their belongings, they signed a new lease for a new apartment and they left the rental unit. The fact that they left behind some garbage and unwanted items does not mean that they did not completely move out.
6. The second dispute between the parties is when, if ever, the Occupants returned the keys to the Landlord.
17. The fact that the Occupants slid the keys under the door means that they no longer were able to gain access to the unit. That is the very essence of giving up vacant possession.
SOT-11554-11 (Re), 2011 CanLII 13363 (ON LTB)
9. In Benedetto v. Dineen, [2006] CarswellOnt 3233 the Court held that the only proposition for the Board to consider is whether vacant possession occurred. In Benedetto v. Dineen four prospective tenants provide a rental deposit to a landlord who told them the deposit was not refundable. The Tenants decided not to rent because they could not find guarantors as required by the landlord. The Board found that vacant possession had not been given to the tenants. The court found that no lease was signed and vacant possession had not been given.
10. In Musilla v. Avcan Management [2010] ONSC 5425 the court found a tenancy agreement had been entered into when the rental application was accepted by the Landlord. The essential terms of the agreement were set out in the rental application. The Musilla v. Avcan Management case resembles the recent decision of the court in Opara v. Cook [2008] O.J. No. 1934 (Div Ct). There the Court upheld a decision of the Board dismissing a tenant’s application for a refund because the Court observed that the tenancy agreement came into effect the day the parties reached an agreement on the rental unit and the deposit being paid.
11. Having regard to the words set out in section 107 (1) it is noted that the landlord is to return the deposit if vacant possession is “not given” to the prospective tenant. I interpret the words “not given” to mean that it is the refusal or inability of the landlord to provide the premises that triggers the obligation to return the deposit to the prospective Tenant.
12. In this case, the Landlords refused to give vacant possession to the Tenant because he had not satisfied them of the obligation to changeover the utility account. What distinguishes this case from Benedetto v. Dineen, Musilla v. Avcan Management Inc. and Opara v. Cook is the superintendent’s interference with the utility provider. For some reason the superintendent felt it appropriate to share with the utility the information relayed to the Landlords by way of the rental application despite the fact that the rental application clearly stated that the information contained would be kept confidential. I have no doubt that had the superintendent simply confirmed to the utility company that the prospective Tenant intended to occupy the rental unit the utilities would have been connected in his name. With respect to the superintendent’s argument that she routinely shares rental application information with the utility provider because she believes she must do so does not make it legal or appropriate. Absent consent of the Tenant, the superintendent is under no obligation to share information with the utility provider. Indeed mandatory privacy legislation now in effect in the Province of Ontario makes it unlawful.
13. Having determined that the superintendent interfered with the Tenant’s effort to perform his obligation under the contract, making it financially impossible to change the utilities over into his own name, I can not find that the Landlords were willing to give vacant possession to the Tenant. On the contrary, it was the Landlords position that the Tenant was only entitled to the key once he had performed his obligation under the contract. The Landlords are not entitled to hold the Tenant bound to his agreement and then interfere to the extent that the Tenant is unable to meet his obligation. The Landlords were entitled to keep the deposit only if they offered vacant possession which in this case, they did not.
14. While I appreciate that the Landlords believed they were being prudent in their business dealing with the Tenant because they did not want to give possession of their rental unit to a Tenant who had not connected the power, or worse, they did not want to “foot” the Tenant’s power bill. However, this prudence took precedence over the Landlords statutory duty to provide the Tenant with vacant possession. I find that the Landlords refused to give the Tenant vacant possession of the rental unit.
