Most readers would be familiar with RTA subsection 5(i), i.e. the RTA would not apply if there is a requirement from the outset for the occupant to share bathroom and / or kitchen with the owner or owner's child / parent / spouse / spouse's child or parent who lives in the same building. Note that sharing bathroom / kitchen with other people (e.g. tenants, occupants, etc) or sharing other facilities does not qualify for this exemption.
Let's look at some examples of what that means in practice.
RTA subsection 5(i) specifies 2 conditions vis-à-vis the owner (or owner's family):
1. "living" in the same building, and
2. "requiring to share" either bathroom or kitchen or both.
First, let's start off by saying that the agreement needs to be there from the outset, because parties cannot change existing agreements unilaterally (see Divisional Court ruling in Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), <http://canlii.ca/t/29wbs>). I will be posting soon about some unusual applications of that case and some other details on this topic, so please stay tuned. Update / link to the new post: https://residential-tenancies-ontario.blogspot.com/2021/08/cowie-v-bindlish-11-years-later.html
1)
"LIVES IN THE BUILDING...":
If the owner doesn't actually "live" in the building full-time and as their primary residence (*), but just occupies that space part-time, section 5(i) exemption from the RTA would not apply (e.g. see an LTB example in TSL-75551-16 (Re), 2016 CanLII 71276 (ON LTB), <http://canlii.ca/t/gv8g3>, where the owner staying there 3 days out of a week (while having another residence) did not qualify for this exemption). I've observed a recent hearing at the LTB (see details below **) where another adjudicator made a similar determination, after going into detailed analysis. (As always, the determinations would depend upon the facts in each case.)
Update: Also see recent Divisional Court ruling Wong v. Hsiao, 2022 ONSC 3253 (CanLII), <https://canlii.ca/t/jpmfx>:
"[7] Member Lang further found that the expression “lives in the building” in s.5(i) of the Act connotes using the building as one’s principal residence. This finding is consistent with the overall scheme of the RTA. The Act applies to rooming houses. It is an open question whether a rooming house in which the proprietor happens to reside, is exempted from the RTA by virtue of s.5(i) of the Act: there is certainly an argument to be made to the contrary. However, that question need not be answered in this case. Occasional stays in unoccupied rooms does not amount to “living in the building” for the purposes of the RTA. Otherwise, the Legislature’s intent that rooming houses be covered by the RTA could easily be defeated, leaving tenants who are among the most vulnerable people in our society without basic tenancy rights to their rooms."
2)
"REQUIRED TO SHARE...":
But what happens if the owner lives in the same building full-time, but there are 2 bathrooms / kitchens?
If the owners live in the same building and have their own bathroom / kitchen that they use, but they also share the bathroom / kitchen that the occupants use, it still may not always qualify for this exemption under RTA ss. 5(i) with respect to "requiring". It would be very case-specific.
See an example below in TET-02061 (Re), 2009 [1], where both parties agreed that the tenant would be *required* to share bathroom / kitchen, so section 5(i) exemption from the Act applied, even though the owner had their own bathroom / kitchen.
As opposed to...
TEL-02602 (Re), 2007 [2], where there was no explicit *requirement* to share bathroom / kitchen in the agreement, but the facts of the case showed that the owner and his wife used the same kitchen, while they also had their own kitchen / bathroom. Since there was no explicit requirement to share bathroom / kitchen and it could not be easily drawn from actual facts alone, section 5(i) exemption from the Act did not apply.
"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" (McKnight v. Kirk, 2022 [3], para. 29).
Additionally, it is worth noting that the burden of proof for the exemption would be on the party claiming the exemption, regardless of whether the application was filed by the landlord or by the tenant (e.g. Re Koressis et al. and Turner et al., 1986 CanLII 2633 (ON SC), <https://canlii.ca/t/g1cwq>), and RTA section 202 tends to be brought up quite frequently in this type of analysis (i.e. "the Board shall ascertain the real substance of all transactions and activities ... and may disregard the outward form...").
______________________________
[1]
TET-02061 (Re), 2009 CanLII 74523 (ON LTB), <http://canlii.ca/t/27ffl>
"As part of his A1 application, the Landlord submitted a “Boarding Agreement” (the ‘B.A.’) executed by the Landlord and the Tenant on April 13, 2008. The B.A. identifies the Landlord and his wife as “Property Manager” and the Tenant as a “Boarder”. The term of the B.A. is from September 1, 2008 to April 30, 2009. Paragraph 1 of the B.A. provides the following:
1. Boarding premises
a.) The premises shall consist of one bedroom with the following shared facilities with other boarders or the property manager: Kitchen, Living room, Bathroom.
b.) The shared facilities and bedroom used by the Boarder shall be accessible and open to inspection by the Property Manager at all times. The Boarder shall not have exclusive possession of the bedroom and shall [SIC] facilities as herein specified.
c.) The Boarder shall not have access to the locked storage areas and the furnace room.
d.) The Boarder shall not have exclusive use of the garage. This area may be shared with the Property Manager and/or Property Owner. (my underlining)"
[...]
20. On the evidence, I am satisfied that it was a term of the agreement between the Tenant and the Landlord that the Tenant was required to share the basement kitchen and bathroom facilities.
21. Looking at the B.A., I find that it is a plainly worded and straightforward document. The requirement to share the kitchen and bathroom facility is contained in the very first paragraph of agreement. Certainly this is not the case of a hidden clause buried in the fine print of a Byzantine insurance contract. The Tenant is a high school graduate who had been accepted into college at the time she entered into the agreement with the Landlord. In my view, she had not only the legal capacity to enter into the agreement but also the sophistication to understand the nature of the agreement. For the Tenant to argue that she did not realize she would be required to share facilities with the Landlord is therefore problematic. It should be recalled that the Tenant acknowledged having read the B.A. and filled in the blank spaces prior to signing.
22. While I am mindful that the Landlord could be seen as wanting the benefit of rental income with none of the accompanying obligations imposed by the Act, I cannot escape the conclusion that the parties entered into an unambiguous agreement with respect to the nature of the living accommodation and the relationship and boundaries of those living under the same roof. I am satisfied that there was a meeting of the minds with respect to the B.A. The Tenant would not have exclusive possession of the basement or its shared kitchen and bathroom. Moreover, the Landlord did not unilaterally change the terms of the B.A during the Tenant’s period of occupation.
23. In the absence of a clearly worded agreement, the intention of the parties may be more difficult to glean. In such a situation, the pattern of activity becomes critical in determining the genuine intention of the parties. For instance in TEL-02602, a matter bearing several factual similarities and also decided under the Residential Tenancies Act, 2006, the landlord applied for a determination on whether the Act applied. The tenant did not appear at the hearing. In that case, the living accommodation was a house where the landlord lived on the main floor and the tenant lived in the basement. Both levels of the home were equipped with separate kitchens and bathrooms. A locked door separating the main floor from the basement was under the landlord’s control. The landlord’s evidence was that he and his wife used the lower level bathroom as the need arose. When asked if the tenant was required to share the facilities, the landlord responded that the tenant was not necessarily required to share the facilities but there was a verbal agreement amongst the parties that the landlord could make use of the facilities if necessary. The Member determined that the landlord’s ability to use of the facilities was merely a convenience factor and not sufficient to remove the tenancy from the operation of the Act.
IV. Disposition
24. Returning to the matter at hand, I find that the intention of the parties was clear. Therefore, the frequency with which the facilities were shared becomes much less important, if not irrelevant. Here the Landlord had access at all times to the shared facilities. On the evidence, I am satisfied that he made use of those facilities. The intent and reality of the B.A. was that the Landlord would exert general dominion and control over the entire premises. Therefore, the Act does not apply."
________________________________
[2]
TEL-02602 (Re), 2007 CanLII 75966 (ON LTB), <http://canlii.ca/t/25tsh>
"The Landlord gave evidence that if his wife is using the bathroom on the main floor he will use the bathroom on the lower level if the need arises. The Landlord was asked if the Tenant is required to share the bathroom or kitchen facilities with the Landlord. The Landlord responded that the Tenant is not necessarily required to share the facilities but there was a verbal agreement that the Landlord can use the facilities if necessary.
[...]
Determinations:
1. As cited in the Legislation above the issue is whether or not the Tenant is required to share the facilities. In this matter the Tenant is not required to share the bathroom or kitchen facilities with the Landlord. The Landlord may use the Tenant’s facilities but because there are separate facilities located in each unit this is only a convenience factor.
It is ordered that:
1. The Act applies to this residential complex."
________________________________
[3]
Update:
"Requirement to share" is further explained in the new ruling from the Divisional Court in McKnight v. Kirk, 2022 ONSC 3617 (CanLII), <https://canlii.ca/t/jqbll>:
"[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."
________________________________
(*) Another ruling that mentions some examples of possible indicia of primary residence:
EAT-90928-20 (Re), 2020 CanLII 61209 (ON LTB), <http://canlii.ca/t/j9dqn>
"7. I find LW’s testimony on whether she resided in the Building in December 2017 to be more compelling than SW’s testimony. LW’s testimony that she resided in the Building in December 2017 was clear and straightforward. She also testified to other indicia that the Building was her primary residence (i.e. driver’s license address, health card address, income tax address, and mailing address). SW’s testimony was less clear and more equivocal. She was unable to say definitively that LW’s primary residence was somewhere else and she said that she did not disagree with LW’s assertion that she primarily stayed at the Building. As a result, I find that LW lived in the Building in December 2017 when SW moved in and that SW, LW, and the Landlord all shared a kitchen at that time."
RTA subsection 5(i) exemption from the Act:
(**) Details of the hearing:
Date: May 25, 2021
LTB Adjudicator: Renee Lang
Session: afternoon (1 pm)
Link to hearing: https://bit.ly/LTBvideo70
Toll Free: 1-833-250-5389 or Local: 647-749-1728; Passcode: 792 020 635#
More:
Cowie v. Bindlish 11 Years Later
Case on shared bathroom / kitchen with the owner (McKnight v. Kirk, 2022)
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