The Divisional Court ruling in Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), <https://canlii.ca/t/29wbs> is a fairly straightforward case, frequently cited in LTB decisions about shared bathroom / kitchen (RTA subsection 5(i)).
In a nutshell, landlords can't push their tenants out of RTA coverage just by moving into the same building themselves, because that would be akin to changing an agreement unilaterally (inability to change tenancy agreements unilaterally is well settled in law, see also Noseworthy v. Jambor, [1991] O.J. No. 3770 (Gen. Div.) * ).
By way of introduction, we briefly discussed in our previous post what "living" and "requiring to share bathroom / kitchen" mean in practice for RTA subsection 5(i) purposes: https://residential-tenancies-ontario.blogspot.com/2021/08/shared-bathroom-kitchen-when-does-rta.html
Now, let's look at some interesting LTB rulings which reference Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), <https://canlii.ca/t/29wbs> and perhaps challenge some preconceived notions.
1.
MOVING IN / OUT:
1.1
In this LTB ruling, the owner moves out of the building, and the boarder turns into an RTA-covered tenant:
SWL-17145-18 (Re), 2018 CanLII 88667 (ON LTB), <https://canlii.ca/t/hv7qb>
"20. In this case, when the Landlord moved out, I find he made a unilateral decision that caused the Act to apply after he vacated. I do not view this to be an “unwarranted” revision of the tenancy that is unfair to the Tenant; rather it is a reasonable revision of the tenancy agreement reflecting the reality of the Tenant’s changed living arrangements. As a result of the Landlord’s decision to vacate the Tenant, gained the legal protection offered by the Act.
21. The Landlord and his spouse, expecting their first baby, purchased a new primary residence and permanently vacated the rental unit in order to permanently move into their family home. This action caused the exemption set out in subsection 5(i) to cease to apply as the Tenant was no longer required to share a kitchen or bathroom with the owner or a family member of the owner. Once the exemption in subsection 5(i) of the Act ceased to apply, the tenancy became subject to the Act in accordance with subsection 3(1) of the Act."
- A possible explanation is that the boarder essentially "consented" to turning into an RTA-covered tenant, since it's usually beneficial to them? So perhaps the change wasn't unilateral, there was implied consent, as evidenced by the fact that the tenant was disputing landlord's claim about this being exempted from the RTA?
1.2
On the flip side, in this LTB review by Ruth Carey, the owner's child moved in after the tenancy began, but the LTB ruling (upheld on review) determined that the RTA did not apply, because the parties agreed from the outset that there would be a requirement to share bathroom / kitchen with the owner's child who would be eventually living there. So the "ad idem" / "meeting of the minds" was truly about a situation of an RTA-exempted tenancy.
TET-79055-17-RV (Re), 2017 CanLII 60359 (ON LTB), <https://canlii.ca/t/h5z88>
"3. The facts as found by the Board here are that the Tenant entered into a tenancy agreement for a room where kitchen and bathroom were to be shared with an owner’s daughter. This squarely fits within the exemption described above.
4. The twist here is that the owner’s daughter was not scheduled to move in until the start of the school year and the Tenant moved in and out shortly thereafter and prior to September when the owner’s daughter arrived. The Tenant argues that the exemption does not apply because during the entire period of the tenancy the owner’s daughter did not live in the residential complex. At the hearing, as on review, she relies on the Divisional Court’s decision in Cowie v. Bindlish, [2010] O.J. No. 2193.
5. By way of background, it is well settled law that the unilateral acts of one party to a tenancy agreement cannot make a tenancy agreement exempt from the Act. Cowie v. Bindlish is one in a series of cases in support of that proposition.
6. In Cowie v. Bindlish the landlord moved into the residential complex after the commencement of the tenancy. At the initial hearing the Board clearly erred by finding that the unilateral act of the landlord moving in and sharing with the tenant meant the Act no longer applied. At the hearing of the review request the tenant testified that at the beginning of the tenancy agreement there was no agreement that he would have to share a kitchen or bathroom with the landlord. The landlord testified that it was always her intent to move in when she returned from being out of the country. The Board then found that based on the landlord’s intent, the exemption applied. The Court in Cowie v. Bindlish disagreed.
7. The key to understanding Cowie v. Bindlish in this context is paragraph 14 of the Court’s decision which states:
"There was no evidence at either hearing that the [landlord] told the [tenant] prior to renting the room to him that it was her intention to move into the house."
8. In other words, all of the case law in this area including Cowie v. Bindlish stands for the proposition that whether or not an exemption applies depends on the intent of both parties at the commencement of the tenancy.
9. Here, the facts are completely different. Here the Tenant deliberately entered into a tenancy agreement that clearly fits within the exemption. She agreed from the outset she would be sharing with the owner’s daughter.
10. In essence what the Tenant wants the Board to do is abandon the well-established principle in the case law and find that the unilateral actions of the landlord’s daughter in delaying her move in until school started means the tenancy was not exempt until that triggering event occurred. The only way that could be true is if the parties entered into a separate tenancy agreement for the exempt period of time and a subsequent one for the non-exempt period of time. And no evidence was presented at the hearing that was the case."
1.3
Update:
The ruling below elaborates on the test in Div. Ct. ruling in Cowie v. Bindlish, 2010, provides an overview of some LTB rulings applying the test from Cowie (at para. 24 - 26) and further explains that "based on the express words of s. 5(i), the question is not whether the family member is “required to share” with the tenants, but whether the tenants are required to share the facilities with the family member." (at para. 29)
The ruling also clarifies that subsequent sale (after the tenant was evicted) is irrelevant for determinations about applicability of the Act (at para. 37) and that there is no statutory requirement to inform the tenant that the RTA does not apply (i.e. RTA subsection 5.1(3)1 does not apply to RTA ss. 5(i)) (at para. 41).
McKnight v. Kirk, 2022 ONSC 3617 (CanLII), <https://canlii.ca/t/jqbll>
[24] In SWL-17145-18, 2018 CanLII 88667 (ON LTB), the landlord and tenant initially shared the kitchen and bathroom, until the landlord moved to a new residence with his spouse and baby. The LTB found that the RTA applied from the date the landlord vacated the premises. The LTB found that, while the landlord’s departure was a unilateral action that would affect the tenancy, its finding was nonetheless consistent with this court’s holding in Cowie v. Bindlish because the unilateral act would cause the RTA to apply, rather than to cause the RTA to cease to apply.
[25] In TET-87517-18-IN, 2018 CanLII 42846 (ON LTB), the LTB found that the landlord actually resided in a separate unit and “staged” his living situation to evade the application of the RTA.
[26] In TET-79055-17-RV, 2017 CanLII 60359 (ON LTB), the LTB found that the s. 5(i) exemption applied because it was clear at the outset of the tenancy that the landlord’s daughter would be moving into the premises and that the kitchen and bathroom would be shared. The daughter’s delay in moving in did not cause the RTA to apply.[1]
[27] In our view, the Decision was not a departure from the relevant authorities. What the above cases demonstrate is that the application of the s. 5(i) exemption very much turns on the facts in evidence before the LTB in a particular case.
[28] In the Decision, the Member applied this court’s interpretation of s. 5(i) in Cowie v. Bindlish and correctly held that the relevant time period for assessing the application of the s. 5(i) exemption was at the outset of the Tenant’s occupancy, in July 2019. As detailed further below, she also considered whether the circumstances changed when J. left the premises to attend school. This demonstrates that the Member did not only consider the circumstances at the outset of the Tenant’s occupancy, but was alive to the potential that the RTA could have applied at a later stage.
[29] In addition, the Member properly interpreted the terms “lives in the building” and “required to share.” The Tenant argues that J. was not “required to share” the bathroom and kitchen with the tenants because she was able to use the bathroom and kitchen in the owner’s first floor unit. However, based on the express words of s. 5(i), the question is not whether the family member is “required to share” with the tenants, but whether the tenants are required to share the facilities with the family member. There was evidence before the LTB that while J. used the first-floor bathroom to shower, she regularly used the second-floor bathroom, kitchen and laundry facilities. The tenants had no alternative facilities and were therefore required to share with J.
[30] Contrary to the Tenant’s submissions, there was evidence before the LTB to support the Member’s finding that J. continued to live in the third-floor room, even after she left for school in September 2019. J. testified that she left her clothing and bed behind and returned every other weekend and stayed in the third-floor room. In March 2020, she stayed with her grandmother for some period of time but eventually returned to the premises. The third-floor room was periodically rented to other tenants, and during those times, she stayed with her mother or in a room on the second floor. The Member found that the Landlord always ensured that J. had a room in one of the upstairs rooms. Moreover, the Tenant knew when he moved in that the Landlord’s daughter, J., lived on the third floor. In making her findings, the Member did not ignore the evidence or make a finding that was not available on the evidence before her and no error of law arises.
[31] Based on the foregoing, the circumstances in which a factual matter may give rise to an error of law do not arise in this case.
Did the Member Err in Interpreting Section 5(i) by Failing to Consider that the Premises was Co-Owned by the Landlord’s Mother?
[32] The Tenant submitted that the exemption did not apply because the Landlord co-owned the property with her mother, Mary Louise Kirk, and that J. was thus not a “spouse, child or parent” of the owner, as required under s. 5(i).
[33] The Member considered the use of the term “owner” in s. 5(i) and the absence of a definition of “owner” in the RTA. The Member found that “landlord” under the RTA is defined more broadly than an owner. The Member adopted a contextual and purposive interpretation of the provision to find that interpreting the term “owner” to apply only to a sole owner would defeat the purpose of the exemption, which was to allow a balance between the rights of a tenant with the rights of an owner or their family members who live in the rental premises.
[34] In this case, the Member found on the evidence that the Landlord’s mother was in effect a guarantor and had no other involvement with the property, which was managed entirely by the Landlord.
[35] The Member did not err in her interpretation of “owner” under s. 5(i) of the RTA. To the contrary, to find that the exemption does not apply because the “child” at issue is the child of one co-owner and not the other co-owner, who is also a family member, would be an overly technical and narrow interpretation of the provision. This is especially so when the other co-owner is an owner in name only, as was the case here.
Did the Member Err in Failing to Consider the Subsequent Sale of the Premises?
[36] The Tenant argued that the Landlord could not rely on the s. 5(i) exemption because the premises were sold in the interim, and the sale closed on July 15, 2021, which was the date of the hearing before the LTB. Before this court, the Tenant argued that a new owner steps into the shoes of the previous owner and that it would be contrary to the RTA for the exemption to continue, for example, if the new owner is a corporation.
[37] In our view, the Member correctly determined that in the circumstances of this case, the sale would not impact the application of s. 5(i). This is because the relevant time for determining the application of the exemption is when the tenancy began. The tenancy began in July 2019, and the Tenant was evicted in March 2021, long before the sale took place. The issue before the LTB was whether the s. 5(i) exemption applied when the Tenant resided at and was evicted from the premises. The subsequent sale of the premises had no impact on this determination. The fact that the s. 5(i) exemption was found to apply at that time does not mean that it would continue to apply after the property was sold.
Did the Member Err in Failing to Consider the Requirements under Subsection 5.1(3)?
[38] The Tenant also relied on s. 5.1(3)1 of the RTA to assert that the Landlord was obligated to inform the Tenant of her intention to seek an RTA exemption at the commencement of his tenancy and that this never occurred. At the hearing, the Tenant acknowledged that s. 5.1 does not apply to the tenancy but submitted that the interpretation of s. 5(i) should be informed by its terms.
[39] This argument was not raised before the LTB and should not be raised for the first time on appeal. In any event, s. 5.1 has no application, whether directly or by analogy.
[40] Subsection 5.1(3)1 of the RTA requires that an agreement state that the provider of the living accommodation intends that the living accommodation be exempt from the RTA, among other things. However, the application of the provision is limited to housing situations defined in s. 5.1(1) of the RTA, specifically, “living accommodation provided to a person as part of a program described in subsection (2).” Therefore, s. 5.1(3) does not apply to the exemption found in s. 5(i) of the RTA.
[41] While the Tenant submits that the interpretation of s. 5(i) should be informed by the requirements under s. 5.1(3), the Legislature has not enacted similar notice requirements in relation to s. 5(i). The fact that the legislator has enacted specific conditions in relation to a particular situation, in this case, living accommodation provided as part of a program, does not mean that it intended to do the same in respect of living accommodations where occupants are required to share facilities with the owner or owner’s family member. To the contrary, the absence of the specific requirements in relation to s. 5(i) suggests that the Legislature did not intend that the requirements under s. 5.1(3) apply.
[42] The Member did not err in failing to apply the requirements under s. 5.1(3) to the circumstances of this case.
Was the Landlord Required to Bring an Application under s. 9 of the RTA?
[43] The Tenant submits that the Landlord was required to bring an application under s. 9 of the RTA for a determination as to whether the RTA applies. It does not appear from the Decision or record before the LTB that this issue was raised before the Member.
[44] Section 9 states as follows:
9(1) A landlord or a tenant may apply to the Board for an order determining,
(a) whether this Act of any provision of it applies to a particular rental unit or residential complex;
(b) Any other prescribed matter.
(2) On the application, the Board shall make findings on the issue as prescribed and shall make the appropriate order.
[45] As is clear from the language of the provision, s. 9(1) allows, but does not require that a landlord make an application for a determination under the RTA. Subsection 9(2) requires that the LTB make findings and an order on any such application but does not create an obligation on the landlord to bring an application.
[46] The Tenant’s reliance on s. 185(1) of the RTA is also misplaced. That provision prescribes the form of application and information required but does not create an obligation to bring an application.
[47] Section 5(i) of the RTA raises a question of subject-matter jurisdiction. Administrative decision makers cannot proceed to hear an application without legislative authority. It is therefore always open to a party – in this case the landlord – to raise a question of jurisdiction. Here, the Member found that the s. 5(i) exemption applied, the RTA did not apply, and that the LTB lacked jurisdiction over the dispute.
Conclusion
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2.
KNOWLEDGE OF OWNER'S STATUS:
2.1
In this LTB ruling, the owner's child was living there from the outset and there was a requirement to share bathroom / kitchen with them, yet it was ruled that the RTA applied because the tenant was not informed that this person was the owner's child, so tenant had no idea that this should fall under RTA ss. 5(i) exemption from the Act. It's interesting, because parties cannot write themselves into or out of RTA coverage (RTA section 3), it either falls under the RTA or it doesn't, based on facts (RTA section 202 applies, as well), yet the lack of disclosure about the status of the owner's child was enough to make the RTA apply.
The ruling highlights how much this is focused on what the parties truly agreed to.
TST-92268-18 (Re), 2018 CanLII 123244 (ON LTB), <https://canlii.ca/t/hwqcs>
"12. EX brought a preliminary motion as to whether the Residential Tenancies Act, 2006 (the ‘Act’) should apply in a situation where the Landlord’s child is living on the property and sharing a bathroom and kitchen with the Tenants. Ordinarily in these circumstances section 5(i) of the Act would apply to remove the tenancy from the jurisdiction of the Board. However, the evidence demonstrates that it was never disclosed to the Tenants prior to their making their tenancy agreement and moving in to the rental unit that the daughter of the Landlords was resident in the unit. There were a number of opportunities to do so: the text exchange about a girl residing in the living room that would start in April; the rental agreements provided by EX and signed by the Tenants; advising the Tenants at any time before they moved in on January 5, 2018 that EX was a resident. Even when they moved in, the Tenants were unaware that she had possessions there and was apparently resident.
13. I accept the testimony of the Tenants on this issue. I find that EX did not disclose at any point when the tenancy agreement was entered into that she, as a child of the Landlord, was resident in the unit. The Divisional Court case of Cowie v. Bindlish, 2010 ONSC 2628 says:
"The section [section 5(i)] explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.
Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.
Any such interpretation would also, in my view, be inconsistent with the objectives of the Act as reflected in sections 1 and 3 (1) of the Act."
14. I find that in the application of Cowie to the circumstances, that neither EX nor the owner Landlord provided any information to the Tenants on which they could have been advised that they were sharing the rental unit with an owner and that the Act would not apply to their tenancy. I find that the Act applies to this tenancy."
2.2
Whereas in TNT-04076-18 (Re), 2018 CanLII 113887 (ON LTB), <https://canlii.ca/t/hwbms> tenant's lack of prior knowledge of owner's status was treated as essentially irrelevant (the Act applied for other reasons).
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3.
AMBIGUITY
It's already a well-established idea under the doctrine of contra proferentem, but it's still worth mentioning. "Shared bathroom and kitchen" may not be enough to assume "shared with the owner" if there are other people in the building. (And, as with all claims of exemptions from the Act, the burden of proof for the exemption is on the party claiming the exemption, see Re Koressis et al. and Turner et al., 1986 CanLII 2633 (ON SC), <https://canlii.ca/t/g1cwq>.)
3.1
This was one of the reasons why it was ruled that the RTA applied in this case:
TET-04851-19-IN (Re), 2020 CanLII 61321 (ON LTB), <https://canlii.ca/t/j9dx5>
"17. Based on the evidence before the Board, I find that the Act does apply with respect to this tenancy. I say this for the following reasons:
• The lease agreement clearly limits the Landlord from entering into the basement unit at specific times, for specific reasons and only under emergencies without notice to the Tenant; this is aligned with sections 25-27 of the Residential Tenancies Act, 2006. This suggests that it was not intended for the Landlord to have unrestricted access to the basement bathroom;
• While the advertisement says Shared Living Room, Kitchen, Bathroom it does not specify that it is shared with the Landlord. As there are other tenants residing in the basement, it is reasonable to conclude that the sharing of these spaces may refer to facilities that the Tenant must share with other tenants;
• The advertisement specifically states the Landlord lives upstairs. I take this to mean that the Tenant would have the basement to themselves to be shared with other tenants.
• The rental unit has a separate entrance to the basement; and
• While the Landlord and her witness testified that the Landlord and her family have used the basement bathroom on several occasions, I find it difficult to understand how DK does not recall seeing the Landlord ever use the bathroom."
3.2
An interesting case involving the use of a hot plate in the unit and ultimately a ruling that the tenant was not required to share the kitchen with the landlord and the Act applied:
TNT-20379-19-IN (Re), 2019 CanLII 134308 (ON LTB), <https://canlii.ca/t/j6vjc>
"7. The Landlord says that he entered into an agreement with the Tenant and she moved into the unit on December 6, 2018. The Tenant rented a room on the lower floor for $600.00 with a shared kitchen upstairs. The Landlord says there is only one kitchen in the house and only one stove. The Tenant has her own bathroom, but there is also another bathroom between the kitchen and the Tenant’s bedroom. The Landlord says that the Tenant was aware that he would be living in the house and would be using the kitchen. The Landlord submitted into evidence a copy of the undated “Boarder agreement” that the parties signed.
8. The Landlord also submitted into evidence photographs taken the day before the hearing on October 7, 2019 which shows the storage room and a sink with cupboards. The Landlord says that there is also a sump pump and the Tenant was warned that water may come out as the room is 3 feet below grade (basement). The Landlord says that the Tenant was given access to this room, and she could hang her clothes. The Landlord says this room does not have a fridge, or a stove as the facilities are shared.
9. The Landlord also submitted into evidence photographs of the shared kitchen and says that appliances are only in the kitchen.
10. The Landlord denied that the unit is self contained. The Tenant showed the Landlord photographs on her cell phone of the Tenant’s kitchen. The Landlord denied providing the Tenant with the fridge or the hot plate and says the photographs on the Tenant’s cell phone is not a kitchen and he did not provide the Tenant with anything in those photographs. The Landlord also claimed that he told the Tenant not to cook in this area because it would be a fire hazard.
11. The Tenant’s position is that the Tenant has her own separate unit in the house. The Tenant saw an advertisement for a room, but because the Tenant has a cat, the Landlord offered the Tenant a self-contained unit. There is no connection between the main floor and the basement. The Tenant further submitted that the Landlord cleared the Tenant’s unit and tried to mislead the Board that the Tenant was sharing the kitchen with the Landlord.
12. The Tenant testified that she moved into the basement unit on December 6, 2018. The Tenant learned about the unit from WS. She was told to go and see the unit, which she did. The kitchen did not have a big stove and the Landlord gave her a stove top (the Tenant is actually referring to a hot plate). The Tenant claimed that the day she saw the unit, the Landlord gave her the hot plate and told her she can use this for cooking. The Landlord also offered to provide a microwave, but the Tenant declined the offer. The Tenants says that she does not share the kitchen with anyone. The Tenant also says that she has no access to the Landlord’s unit and she enters the basement from a backdoor. There is also another door in the basement which is always locked. The Tenant says she has never cooked in the Landlord’s kitchen and claimed she did not have access to it and other tenants used the Landlord’s kitchen, but have now left.
13. The Tenant explained that in September 2019, she took the photographs that were shown on her cell phone after receiving advice to do so. The Tenant says that in September the Landlord did not accept her rent payment, so she attended at the Board seeking advice and was told to take photographs of the kitchen. The Tenant explained the photographs which showed amongst other things, a hot plate, toaster oven and a fridge. The Tenant says the Landlord provided the fridge and the pump is behind the fridge. The Tenant testified that the Landlord never said he would be sharing the kitchen with her.
14. It was the evidence of the Tenant’s witness, CD that she is employed at W Company as a housing help worker and assisted the Tenant in finding a place to live. The Tenant was previously sharing a unit but needed a quieter place and has a sensitive cat. CD saw the advertisement for a room for rent for $500.00 or $550.00 and it was not disputed by the Landlord that she called the Landlord about the room. She explained to the Landlord that the Tenant had a cat and the Landlord said that this room may not be good because the space is shared with other tenants. The Landlord told CD that he had another unit, which was self contained with a kitchenette and bathroom and the Tenant would not have to share. CD says that the Tenant never said that she was sharing the kitchen with the Landlord.
15. CD testified that she saw a written agreement but could not be certain that it was the same agreement submitted at the hearing. She told the Tenant the agreement was strange as it referred to a “Boarder agreement” rather than a rental agreement, and there was no date, no name of the Landlord or the address. She asked the Tenant if she was sharing the washroom or the kitchen, and the Tenant said no.
In determining this issue, I must be mindful of section 202 of the Act which states:
In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit
Based on the totality of the evidence before me, I find that it is more likely than not that the Landlord and the Tenant did not enter into an agreement that the Tenant was required to share the kitchen with the Landlord.
I find that the Act applies and pursuant to section 202 of the Act, the “Border agreement” was not a true or accurate agreement of the tenancy between the Landlord and the Tenant. It was clear from the evidence before me, that notwithstanding the Tenant signing the Boarder agreement, the Landlord knew or ought to have known that the Tenant was renting a self-contained unit and had her own kitchen. I preferred the evidence of the Tenant’s witness, CD that the Landlord offered the Tenant a self-contained unit, with a kitchenette. CD’s testimony was not shaken during cross examination. I also considered the photographs submitted into evidence by the parties. It is evident that the Tenant had her own kitchen and was using this kitchen. The Landlord would have me believe that the Tenant never had this kitchen in the unit. I say this because in the Landlord’s direct evidence he did not testify that the Tenant was using this area as her kitchen, and instead, referred to it as a storage room and submitted into evidence the photographs of the “kitchen area” after he removed all signs that it was being used as a kitchen. It seems to me that the Landlord knows or ought to have known that the Tenant had her own kitchen. If the Landlord believed that the Tenant was not supposed to have her own kitchen, because it was a fire hazard, I would have expected the Landlord to have notified the Tenant, preferable in writing, that she should not have a kitchen in her unit and should be using the shared kitchen. There was no evidence before me that the Landlord took this step.
19. Based on the above, I find that the Landlord is not exempt from section 5(i) of the Act."
3.3
Another interesting ruling where the adjudicator applied local municipal bylaws and O. Reg. 517/06 in order to identify whether the kitchen arrangement qualified as a "kitchen" for the purpose of RTA ss. 5(i) (by qualify as a "kitchen" under municipal bylaws and O. Reg. 517/06:
TET-95797-18 (Re), 2018 CanLII 113956 (ON LTB), <https://canlii.ca/t/hwbgv>
"10. The Tenants say that there was a kitchen in the basement unit and they had no need to share the kitchen with the Landlord on the main floor. TD described the basement kitchen as a bar fridge, a microwave and a hot plate. The Tenant also says there is a sink in the basement.
11. Subsection 5(i) of the Residential Tenancies Act, 2006 (the 'Act') says
This Act does not apply with respect to…living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located [Emphasis added]
12. For the following reasons, I find that the Tenants were required to share a kitchen facility with the Landlord which means this arrangement is exempt from the Act.
13. As the Tenants claim that the basement contains a kitchen, the question I must determine is what constitutes a “kitchen facility” within the meaning of the Act. Although the term “kitchen” is not defined in the Act, the concept of a kitchen is mentioned in O. Reg. 517/06, s. 14 (3) which says “every kitchen shall have outlets suitable for a refrigerator and a cooking appliance.”
14. This wording suggests that the outlets in a kitchen must provide enough voltage for a full size fridge and a workable stove and oven appliance. If “cooking appliance” simply referred to a microwave or a hot plate, there would be no need to legislate the type of outlet required in a kitchen and this section of the regulation would be absurd.
15. I would also observe that the municipal by-law for the community in which the rental unit is located outlines the requirements for any kitchen facility. Section 6.6.1 of the bylaw says:
Every Dwelling Unit shall contain a kitchen area equipped with:
(a) a kitchen sink that is served with hot and cold potable water and is surrounded by surfaces impervious to grease and water;
(b) suitable storage area of not less than 0.23 metres3 (8 feet3 ) of which there shall be at least 1.0m (3 ft) in width of cabinet front;
(c) a counter or work area at least 0.55m (1.8 ft.) in depth and at least 1.8m (6 ft.) in length (inclusive of the sink) and covered with a material that is impervious to water and grease and is easily cleanable; and
(d) cooking and refrigeration appliances (including suitable electrical or gas connections thereto).
16. Once again, the reference to “suitable electrical or gas connections” suggests that the appliances must include a fridge and a cooking appliance with an oven and a stove.
17. Based on the Tenants’ description of the basement “kitchen”, I am not satisfied that the basement is properly outfitted with kitchen facilities as defined by the municipal by-law or as contemplated by Regulation 517/06 of the Act. As the basement does not contain a kitchen facility, I find that the Tenants are required to share a kitchen with the Landlord on the main floor of the house and this arrangement is exempt from the Act.
18. As the relationship between the parties is exempt from the Act, the Board has no jurisdiction to hear the Tenants’ application and it must be dismissed."
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4.
STAGING:
Needless to say, staging a living situation doesn't work (see also RTA section 202).
4.1
TET-87517-18-IN (Re), 2018 CanLII 42846 (ON LTB), <https://canlii.ca/t/hs1dr>
"3. The Tenant disputes that the Landlord ever shared a kitchen or washroom with the Tenant and maintains that the Landlord did not live in the rental unit at all. The Tenant stated that the Landlord hung his clothes in the bathroom in order to stage his presence and that he lived elsewhere returning to the rental unit only to deliver mail and to collect the rent.
[...]
19. While the Tenant acknowledged in submissions that the Landlord moved his things from room to room periodically, the gist of the Tenant’s evidence is that the Landlord existed in the rental unit in name only, staging a presence with some personal items and in actuality he resided elsewhere and was not genuinely sharing facilities.
[...]
27. When the Tenant came to view the bedroom that he was to rent, the landlord was living in it. He testified that the Landlord offered to move out of it for his use, and to move into one of the other unrented bedrooms. This was not a disputed fact. Since it was the understanding of both parties that the Landlord would be sharing a bathroom and kitchen with the Tenant at the time that the tenancy was entered into, this might suggests that the Tenant knew or ought to have known that the tenancy was exempt from the Act.
28. However, in the decision Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), the Divisional Court found that section 5(i) of the RTA:
explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.
29. Thus, I must consider whether or not the Landlord actually lived in the rental unit at the time the tenancy began.
30. The necessity of looking at the actual living circumstances at the beginning of the tenancy also arises as a result of the application of section 202 of the Act. In making findings on an application, section 202 of the Act empowers the panel to determine the real substance of all transactions and activities pertaining to a rental unit; with respect to this tenancy.
31. The effect of section 202(1) was considered by the Court of Appeal for Ontario in Slapsys (c.o.b. 1406393 Ontario Inc.) v. Abrams 2010 ONCA 676 (CanLII). It was determined that the purpose of section 202(1) was both to enable and to require the Board to determine the true substance of the transaction, activities and good faith of the parties when making findings on an application.
32. In this case the question is whether the Landlord has staged his living situation in an attempt to evade the Act or did he genuinely reside in the apartment.
33. The Landlord likely understood the advantage he derives where the kitchen and/or bathroom facilities are shared with the Landlord. If I believe that the Landlord has not acted in good faith and has staged the appearance of a shared tenancy in order escape the jurisdiction of the Residential Tenancies Act, 2006, this is inconsistent with the legislative intent of the exemption under section 5(i) in conjunction with section 202.
34. As a result, the Landlord did not meet his onus of establishing on a balance of probabilities that he shared a bathroom and/or kitchen with the Tenant and has not established that the tenancy falls under section 5(i) of the Residential Tenancies Act, 2006."
4.2
NOT-20997-15 (Re), 2015 CanLII 79113 (ON LTB), <https://canlii.ca/t/gmc4m>
"8. The Residential Tenancies Act 2006 applies to residential complex located at Address 1. The Residential Tenancies Act 2006 also applies to the Landlords, and to the tenants / occupants of the rooming house rooms.
9. PG also argued that he lives at the residential complex making the rental rooms exempt from the provisions of the Residential Tenancies Act 2006 (the ‘Act’) pursuant to sub-section 5(i) of the RTA which states: This Act does not apply with respect to, living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located. I find no merit in this claim.
10. LD vigorously disputed PG’s claim of residential occupancy at the Address 1 LD testified that during the 5 year term of his tenancy, PG and his spouse (SJTG) have always lived in their home located at Address 2 LD testified that PG has never lived 495 Notre Dame Ave Sudbury ON.
11. PG provides tenants with a list of Rule and Regulations (Landlord exhibit #3). Under paragraph 16 the Landlords state: “Please acknowledge that Paul Gervais resides at Address 1 and uses it as his principal residence.” PG does not reside at the residential complex. The paragraph 16 acknowledgement is intended to create the false perception that the Residential Tenancies Act does not apply to the occupants living at the residential complex because PG is required to share a kitchen or bathroom pursuant to sub-section 5(i) of the Act.
12. New tenants may unknowingly sign the Landlords’ paragraph 16 acknowledgement; however, sub-section 3(1) of the Residential Tenancies Act states: “This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.” The Rule and Regulations paragraph 16 provision is void.
13. PG’s claim of occupancy is without merit. PG made application made to change his driver’s licence address to Address 1; however, the application was made just days prior to hearing. PG offered no reliable evidence whatsoever in support of his claim that 495 Notre Dame Ave Sudbury ON is his residence. PG offered no evidence to counter LD’s claim that Address 2 is actually PG’s valid residential address,
14. PG’s claim that he resides at Address 1 is patently false and misleading. Address 1 is not PG’s principal residence and subsection 5(1) of the Act does not apply to this residential complex."
____________________________________________
5.
FREQUENCY OF USE:
5.1
TST-77277-16 (Re), 2016 CanLII 71659 (ON LTB), <https://canlii.ca/t/gv8lg>
"It may be that the Tenant uses the kitchen rarely but her usage of the kitchen is not determinative, it is whether she was required to use it as part of the tenancy agreement."
5.2
TST-62422-15-RV (Re), 2016 CanLII 39761 (ON LTB), <https://canlii.ca/t/gsb1q>
"13. As to the first of these two components, I am satisfied that the Landlord lived in the building. The Landlord did not spend a great deal of time there but he need not have as long as he was living there. Persuasive of his position of living there was the address he used on his licence. More significantly, however, the kitchen and bathroom contained a quantity of the Landlord’s personal belongings indicative of residence such as food and toiletries.
14. The Landlord testified his use of the unit decreased as the tenancy continued but the character of the relationship at the outset is what governs. This was determined in the different but analogous situations set out in Cowie v Bindlish, [2010] O.J. No. 2913 (Div. Ct.) and Noseworthy v. Jambor, [1991] O.J. No. 3770 (Gen. Div.) where landlords unsuccessfully attempted to do the reverse and purport to exempt units from the legislation after tenancies began by moving in. I would place little weight on the Landlord’s statement during a heated argument that he would ‘move in,’ a statement in the heat of the moment, clearly calculated to irritate the Tenant who by then wanted nothing to do with him.
15. Two photographs of the Landlord’s bedroom were before me: the Landlord’s, date stamped two weeks before the Tenant vacated showing a bed and belongings, and the Tenant’s she said was taken mid-tenancy showing two bicycles in the same space. The latter photograph was not inconsistent with the finding the Landlord was living there because it was clear the Landlord rarely stayed overnight. The Landlord could just as easily have replaced the single bed in the space occupied by the bicycles had he wanted to sleep there."
__________________________________
*
SWT-21317-11 (Re), 2011 CanLII 42386 (ON LTB), <https://canlii.ca/t/fm9kv>
"Whether the Landlord was acting in good faith is not the test here. The test here is whether or not one party can unilaterally change the entire nature of the tenancy. The answer must be no. It is a basic contractual premise that there must be a “meeting of the minds” when it comes to agreements. In this case, everyone agrees that there was a tenancy governed by the RTA between October 1, 2010 and April 30, 2011. An entire agreement should not be able to change as a result of one party’s desire.
This very issue was explored in Noseworthy v. Jambor [1991] O.J. No. 3770. Although decided under the Landlord and Tenant Act, the basic principle is the same. It is not permissible for the entire nature of the relationship to unilaterally change. The entire endorsement from R.J. Haines J. indicated:
The defendant argues that the Landlord and Tenant Act has no application in this matter because the defendant's landlord lives on the subject premises. The Affidavit evidence alleges the landlord moved into the premises after the tenant took possession. It is my view that the Act did apply when the tenant moved in and the subsequent act of the landlord ought not to have the effect of retroactively excluding the operation of the Act. That could lead to the absurd result of the Act and its application being reinstated should the landlord subsequently decide to move out.
The present case is no different. When the tenancy commenced on October 1, 2010 and up until April 30, 2011 the parties agree that the RTA applied. The Landlords’ son moving into the rental unit on May 1, 2011 does not change the nature of this current tenancy. As pointed out above, it could lead to the absurd result of the RTA applying, not applying and then perhaps re-applying at one party’s will."
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