Summary:
1. Notices of Termination
2. How to Enforce Them
3. Notes on the Trespass to Property Act (TPA) and the Commercial Tenancies Act (CTA)
4. Rulings:
On the TPA:
Carr v. Ottawa Police
On a 'reasonable notice' of termination:
Ihiooha v. KapplaBoudreau v. Landry
On the CTA:
Newman v. Glanville
In our previous posts we talked about shared accommodation when the RTA does not apply and some of the more nuanced cases when applicability of the Act is being challenged.
In this post, we'll cover the question of evicting tenants who are not covered under the RTA.
Exemptions from the Residential Tenancies Act are specified in RTA section 5; for example, these two exemptions are fairly common:
"Exemptions from Act5 This Act does not apply with respect to,(a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;[...](i) 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;"
If the tenant is not covered under the RTA, for everyone's protection, the contract really needs to spell out minimum notices of termination for different grounds. For example:
- general termination, termination at the end of the term (if applicable) and terms of renewal;
- termination due to impaired safety and illegal acts;
- termination for substantial interference, breach of contract (e.g. smoking).
Since the RTA would not be covering the question of termination, the terms of the contract would be even more important, so please get legal advice and get a well-worded contract to protect your interests.
If the contract is silent on notices of termination, common law seems to say that the landlord would need to provide a "reasonable notice".
So what is a "reasonable notice"?
It is not exactly 100% settled in law and would be case-specific, but, under "normal circumstances", it could be the length of the rental period (so usually a month for a month-to-month tenancy), and that's often what the deposit would pay for.
And if there is a fixed lease term, it would need to be respected.
In cases of serious impairment of safety, illegal acts, etc, the notice can be significantly shorter.
Please see the rulings below for details.
How to enforce?
If the non-RTA tenant refuses to vacate after the termination date stated in the reasonable notice of termination, the landlord should get legal advice. Some options may include getting the police involved (but the police may not necessarily act on it), changing the locks or, the "proper" and safer way, by applying to the Superior Court of Justice for a writ of possession.
Sometimes filing an A1 application with the Landlord and Tenant Board may be helpful, as well, especially in situations when there is some question (or expectation of a dispute) in regards to whether the RTA might actually apply. As always, the burden of proof would be on the party that is claiming the exemption from the Act (see Re Koressis et al. and Turner et al., 1986 CanLII 2633 (ON SC), <https://canlii.ca/t/g1cwq>).
It is worth noting that there is some debate about whether or not the Commercial Tenancies Act might apply to such tenancies (see Newman v. Glanville, 2019 ONSC 1040 (CanLII), <https://canlii.ca/t/hxgvv> below), which can further complicate matters.
So please get legal advice.
If a non-RTA tenant finds himself in this situation, he should seek legal advice immediately (for example, local community legal clinic may be able to help for free). A legal professional can help negotiate an orderly exit with a reasonable notice of termination, or, if the tenant has already been evicted improperly, perhaps there would be recourse at the Small Claims Court, since sometimes the police would remove non-RTA tenants, or the non-RTA tenant might just end up being locked out with their property not returned to them. Involving a legal professional early can help manage these scenarios. Besides, sometimes a tenant doesn't even realize that he might actually be covered under the RTA. This is where getting in touch with a legal professional early can help.
So let's look at some examples:
1. On the Trespass to Property Act:
First, a non-RTA tenant cannot be just called a "trespasser" under the Trespass to Property Act the moment the landlord wants a paying tenant out. A non-RTA tenant still needs a reasonable notice of termination.
A "licensee was entitled to notice of the requirement to leave the home":
"[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."
If the tenant is evicted without a proper notice, he should have recourse at the Small Claims Court. This is where the wording of the contract will really matter.
2. On a "reasonable notice" of termination:
1)
Ihiooha v. Kappla, 1994, CarswellOnt 4571, [1994] O.J. No. 1828, 49 A.C.W.S. (3d) 984
A "six weeks' notice" of termination was deemed "reasonable" for a "monthly tenant":
"13. [...] By virtue of the definition of "residential premises" in s.1(e), of "tenancy agreement" in s.79 and because of s.80(1), the provisions of Part IV of the Landlord and Tenant Act are not available to the plaintiff in this case. The reason for that is the plaintiff shared a bathroom and a kitchen facility with the son of the defendant who lived with his mother in the house where the room rented by the plaintiff was located.
[...]
15. I do not believe under common law that I have to determine whether the defendant had good cause to evict the plaintiff. I suspect on the evidence before me she did not. However, in the absence of any statutory authority to the contrary, she was entitled to terminate her agreement with the plaintiff for the use of the room in her house upon reasonable notice. He was a monthly tenant, and she gave him, after direct negotiation, some six weeks notice. Under the circumstances, and regardless of whether or not the plaintiff agreed to vacate on May 3, I find that notice to be reasonable. It follows that in the face of the plaintiff's refusal to vacate his room, she was entitled to pack his belongings as she did and clear out his room. Neither counsel upon my invitation could find me any authority to the contrary.
[...]
19. Regardless, there was no bailment. The plaintiff asked the defendant if he could leave the articles with her until he could find a place for them. She agreed. There was no agreement by her to take custody or control. At most she granted him a licence. See Melburn Truck v. Plastmo, [1992] O.L. No. 209. Even if I am wrong, she was at best a gratuitous bailee, and there was no evidence of gross negligence in her dealing with the articles. They remained boxed and bagged in a corridor behind the locked door to her house where the plaintiff had left them, waiting for him to come and pick them up.
20. In the result, the plaintiff's case must be dismissed."
2.
Boudreau v. Landry, 2013, CarswellOnt 8895, 230 A.C.W.S. (3d) 1190
The "reasonable notice to quit" should have been "at least one month":
"6. Because the Residential Tenancies Act, 2006 does not apply to living accommodation whose occupants are required to share a bathroom or kitchen with the owner and the owner lives in the building where the accommodation is shared, Landry's position, as I understand it, is that she was entitled to evict Boudreau without notice and put her possessions out at the street. I disagree. Notwithstanding that Boudreau was not entitled to the protections of the Act, she was entitled to, but was not given, reasonable notice to quit, which in the circumstances of this case would have been at least one month.
[...]
Cash
15. I accept Boudreau's evidence that she had $325.00 in cash in her dresser drawer which had been destined for payment of her rent and that the money was not with the possessions that she was able to recover from the side of the road.
[...]
Aggravated damages
21. Aggravated damages are awarded to compensate a party for mental distress or humiliation caused by a breach of contract.
22. The mental distress and upset suffered by Boudreau was more than evident as she gave her evidence. She put it well when she said that Landry had "just dumped her life on the lawn like a dirty rag because she didn't fit into her lifestyle." In contrast, Landry, at times, seemed somewhat amused by Boudreau's plight.
23. Landry's treatment of Boudreau was unquestionably harsh and humiliating and, as a result, I find that Boudreau is entitled to aggravated damages which I fix at $2,000.00.
[...]
25. For the reasons given, Susan Boudreau will have judgment against Denise Landry for the total sum of $3,440 and the defendant's claim will be dismissed. As the successful litigant, Boudreau is entitled to her costs of this two-day trial fixed in the sum of $500.00."
3)
On the Commercial Tenancies Act:
"[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.
[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:
a. order the payment of rent;
b. make a costs order;
c. award damages: and
d. issue injunctive relief to restrain any future breach of the lease agreement.
[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.
[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.
[11] I am satisfied based on the evidence of Mr. Newman that Mr. Glanville has defaulted on the terms of the implied lease. Mr. Newman has appended photographs to his affidavit which demonstrate that the house has fallen into a state of disrepair as a result of the failure of Mr. Glanville to clean up after himself. I am also satisfied that Mr. Glanville has failed to pay rent since March, 2018.
[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.
[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.
[14] There will be an order declaring that the lease was terminated on October 8, 2018.
[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019."
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