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Issue
1. The Landlord gave the Tenant an N13 notice to end the tenancy of the third floor rental unit on September 30, 2018. That unit is one of three units in the residential complex and consists of a bedroom, bathroom, kitchen and living room. The N13 notice states that the Landlord wants to convert the three separate rental units that make up the residential complex into a single family dwelling by doing a major renovation that includes removing a load bearing wall; replacing a post and beam; altering the plumbing and electrical system; installing hardwood flooring; painting walls; and renovating washrooms.
2. Although the N13 notice does not identify the Tenant’s rental unit, the Tenant waived his right to challenge its validity for that defect. It is noteworthy that the rental unit is the only unit in the residential complex that is occupied.
3. The Tenant puts in issue whether a landlord can do repairs and as contemplated by subsection 53(1) of the Residential Tenancies Act, 2006 (the “Act”) but that are so extensive that they will take the rental unit out of existence.
Landlord’s Evidence
4. The residential complex is a house that was built in 1885. The Landlord closed the purchase of the residential complex on January 23, 2017 and gave the Tenant and the second floor tenant and the Tenant N12 notices, which he signed on January 25, 2017, to evict them so that he could occupy their units for his own use. The second floor tenant moved out of his unit after receiving the N12 notice.
5. The Landlord presented a building permit relating to the residential complex dated October 26, 2018 and a memorandum attached to the building permit addressed to the Landlord from the South District Issuance Team on behalf of the Deputy Chief Building official for Toronto and East York District dated the same date which states that the Landlord’s proposal on which the building permit was granted is for conversion to a single family dwelling by alteration of the third floor of the residential complex by replacing one washroom and removing existing kitchen. The proposed third floor plan shows a master bedroom, washroom and study. The ground floor will then have the only kitchen.
6. In a declaration of use provided to the City of Toronto dated September 1, 2018 the Landlord declared that the proposed use of the residential complex is to change 3 residential units to a single family dwelling and make interior alteration to the third floor.
7. Despite the representations in those documents, the Landlord’s representative said the Landlord is converting the residential complex into a house with four bedrooms and the Tenant is welcome to return to the residential complex after the renovation presumably at the monthly rent he currently pays in the amount of $822.00 plus any applicable guideline increase. The Landlord tried to evade answering whether the Tenant would be returning to a unit that has a bedroom, bathroom, kitchen and living room by saying the residential complex will have that. Pressed to state what the third floor will be after the renovation, the Landlord said it would not have a kitchen but it would have a bathroom, bedroom and small living room. On the proposed plan attached to the building permit the small living room is shown as a den.
8. The Landlord said he wants to renovate because it is uneconomic to patch the many problems that this old house has. It was represented that whether he succeeds at this hearing or not, he will proceed to renovate the other floors. It was also said the house will come down if it is not repaired as water has leaked from the roof down inside the walls raising concerns with respect to mould.
9. The Landlord presented an agreement dated November 2, 2018 between a corporation and him relating to the residential complex which states the proposed engineering work is in respect of “Commercial unit for office use.” The landlord was unable to explain how this agreement relates to the plan for a single family dwelling.
Tenant’s Evidence
10. The Tenant ‘s rental unit is a one bedroom unit on the third floor consisting of approximately 450 square feet, which he has occupied for the past 21 years. The bottom unit has 3 or 4 bedrooms on the ground floor and the basement and the second floor is one unit and has 2 bedrooms. No one but the Tenant lives in the residential complex.
11. The second floor tenants received an N12 notice but left one or two months later.
12. No one has lived in the basement and ground floor unit since 5 years ago. It is used for short term rentals. Since the second floor was vacated it, too, is used for short term rentals which occurred as recently as last week. The Tenant said short term rentals are stressful because of noise and parties. Police have been called by neighbours because of the disturbance. The Tenant has complained to the Landlord about the noise. The Landlord suggested in an email in January 2018 in response to one of the Tenant’s complaints that he would help the Tenant find another place to live if he is not pleased.
13. In another email from the Landlord which was written on March 15, 2018 the Landlord stated he intended to sell the rental complex. The listing was for $1,890,000.00.
14. The Tenant said the plan the Landlord presented at the hearing regarding the existing basement is incorrect. He said the current situation in the basement is what is shown on the proposed basement plan, by which I took him to mean that the plans presented are not those on which the building permit was granted. The Landlord did not dispute this testimony.
Analysis
15. I will first consider whether Landlord’s proposed use of the rental unit once he has vacant possession is in compliance with paragraph 50(1)(c) and subsections 53(1), (2) and (3) of the Act. If the answer is no, the application must be dismissed. These provisions state as follows:
Notice, demolition, conversion or repairs
50 (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to …
(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.
Tenant’s right of first refusal, repair or renovation
53 (1) A tenant who receives notice of termination of a tenancy for the purpose of repairs or renovations may, in accordance with this section, have a right of first refusal to occupy the rental unit as a tenant when the repairs or renovations are completed.
Written notice
(2) A tenant who wishes to have a right of first refusal shall give the landlord notice in writing before vacating the rental unit.
(3) A tenant who exercises a right of first refusal may reoccupy the rental unit at a rent that is no more than what the landlord could have lawfully charged if there had been no interruption in the tenant’s tenancy.
16. The modern principle formulated by Elmer Driedger in the 2nd edition of his book Construction of Statutes:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
17. In the revised 3rd edition by Ruth Sullivan, Driedger on the Construction of Statutes, the so-called modern principle is recast in the following terms:
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome it produces is not unjust or unfair.
18. This principle has been cited and relied on by Canadian courts, including the Supreme Court of Canada, on countless occasions: see, for instance, Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27.
19. There is also section 10 of the Ontario Interpretation Act R.S.O. 1990, Chapter I.11 which states:
10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
20. I agree with the Tenant that these are the principles that must be applied in this case.
21. Accordingly and as a starting point, reference must be made to the purposes of the Act which are set out in section 1 as follows:
1. The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.
22. In order to comply with paragraph 50(1)(c) of the Act the Landlord’s proposal must be to do repairs or renovations to the rental unit that are so extensive that they require vacant possession. However, paragraph 50(1)(c) of the Act must also be read together with section 53(1) of the Act which provides that the tenant must be given a right of first refusal to occupy the rental unit as a tenant when the repairs or renovations are completed. Read together those provisions must mean that the renovations cannot result in the elimination of the tenant’s rental unit. If the landlord were permitted to eliminate the rental unit under the guise of performing major repairs or renovations that would render meaningless the Tenant’s rights under subsections 53(1) and (3) of the Act to exercise his right of first refusal to occupy the rental unit and pay rent at no more than what the Landlord could have lawfully charged if there had been no interruption in the tenant’s tenancy when the repairs or renovations are completed.
23. In this regard under the presumption against tautology, “[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”: see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 159. To the extent that it is possible to do so, the Board should avoid adopting interpretations that render any portion of a statute meaningless or redundant: Hill v. William Hill (Park Lane) Ld., [1949] A.C. 530 (H.L.), at p. 546, per Viscount Simon.
24. In this case the Landlord is not proposing to perform major repairs to the rental unit such that it could be occupied by the Tenant upon completion. I find that the Landlord instead intends to reconfigure the residential complex into a single family dwelling by, among other things, taking the rental unit out of existence.
25. The Landlord’s assertion that the Tenant will be able to return to the rental unit after the repairs are completed was unconvincing. It was not disputed that the plan submitted to the City of Toronto is for the residential complex to be a single family dwelling. The Landlord’s suggestion that the Tenant is welcome to return to the third floor after the renovation and after an adjustment to provide a kitchen and a door to the third floor has no air of reality to it having regard to the proposed use presented to the City of Toronto. Indeed, I find the suggestion that renovations could also include a kitchen on the third floor is suspect as it comes so late in the day and is unsupported by any reliable plans.
26. Further, the Landlord has been clear in stating he intends to sell the residential complex as a single family dwelling after it is renovated which means a purchaser who wants it for that purpose is likely to cause the Tenant to vacate the premises so that it could be occupied as a single family dwelling.
27. In Belcourt Manor Inc. v Claire Collard, 2010 ONSC 1160, CanLII the Divisional Court court reversed the decision of the Landlord and Tenant Board dismissing the landlord’s application because the Board had misconstrued the issue which was whether the landlord was permitted to renovate under paragraph 51(c) of the Act believing it to be whether the landlord was permitted to demolish under paragraph 51(a) of the Act. Rather than sending the matter back to the Board, the court disposed of the case by deciding it would be unfair to the landlord to refuse to evict the tenant. However, in that case, not only were the arguments put forth by the Tenant here regarding the right of re-occupancy not considered by the Divisional Court but also that contemplated renovation would result in the conversion of the residential complex from two bedrooms to one bedroom leaving the tenant with a plausible right to re-occupy the residential complex. Indeed, in that case, the landlord made an offer of other units and unspecified funds in an effort to comply with ss. 52 and 54 in what had to be a far different rental market than the current situation. Accordingly, I am satisfied the Belcourt decision is distinguishable from the facts in the present case such that it is not binding on me.
28. For these reasons, the application must be denied.
Subsection 83(2) Considerations
29. Section 83(2) of the Act requires me to consider all of the disclosed circumstances before issuing an eviction order and deny eviction unless it would be unfair to do so. If I am incorrect and the Landlord’s application does satisfy the test contained in section 50 of the Act I would, nonetheless, deny eviction pursuant to section 83(1)(a) of the Act on the basis of the disclosed circumstances.
30. The Landlord found when he listed the residential complex for sale that he could not attract buyers at the price he hoped to obtain. He is convinced he needs to renovate the house and convert it into a single family dwelling to get his price. Clearly, he is frustrated because he views the Tenant as being unreasonable by not moving out despite the incentives he has offered or moving back in after the conversion on the representation that the new accommodation will be better than the current situation.
31. The Tenant said in Parkdale the rent for comparable units are as high as $1,500.00 per month, which means he cannot afford to stay in Parkdale if evicted. The Tenant has two children who enjoy stay overs at his unit and it is important for one of his daughters to be able to continue to do so once per week. He wants this to continue but it will be unlikely as he will not be able to afford a unit large enough for her to stay over.
32. The Tenant also said the neighbourhood provides him with social interaction as he is not very sociable. He said that if forced to move he will lose interactions with neighbours and access to service providers such as for physiotherapy and anxiety therapy at the Community Health Centre as well as programs at that facility and the neighbourhood library he frequents. Also, his general practitioner is within walking distance of the rental unit.
33. I am satisfied that in these circumstances the hardship to the Tenant in being evicted far outweighs any prejudice to the Landlord by requiring him to maintain the tenancy. Accordingly, I would grant the Tenant relief from eviction.
It is ordered that:
1. The application is dismissed."
2)
This application was heard in Whitby on February 28, 2020.
The Landlord and the Tenants attended the hearing. The Landlord was represented by E.A. and the Tenants were represented by L.A.M..
Determinations:
REQUEST TO ADJOURN
1. The Tenants sought an adjournment as they did not receive the notice of hearing for the Landlord’s application as they were out of the country (they are ‘snow birds’) and were unable to prepare. They only became aware of the Landlord’s application at 10:00am the day of the hearing after speaking with the Landlord about their T6 application.
2. The Tenants testified that their friend was picking up their mail while they were away but the notice of hearing was not part of the mail they were given by their friend.
3. The Tenants submit that it they would be highly prejudice if they were forced to proceed.
4. The Landlord opposes the Tenants’ request to adjourn stating that on January 15, 2020, which was the initial hearing date of this application, the Tenants’ representative came to the hearing and adjourned the application because the Tenants were out of town.
5. To adjourn the hearing again would be highly prejudicial to the Landlord as the matter has been ongoing for some time; the Tenants were served two N13 notices of termination of the second of which is before the Board today.
6. I offered the parties to adjourn to a hearing date that was a week away. However, the Tenants’ response was that they were set to fly out to Florida again on March 1, 2020 and would be staying there until the end of April 2020. Therefore, if the matter was adjourned today, it would not be heard until after May 1, 2020.
7. The Tenant’s request for a second adjournment was denied. The Board’s records show the notices of hearing were mailed to all parties on February 18, 2020; and the Tenants’ copy of notices was not returned by Canada Post. Adjourning the matter once again would result in further delay of the matter being heard after April 2020.
PRELIMINARY MOTION
8. The Tenants asserted that the Landlord’s application should be dismissed as it was not signed by a Law Society of Ontario licensee and that the Board did not have jurisdiction to hear applications filed by property management companies.
9. The N4 notice of termination and the L2 application were both drafted and signed by J.S. who is an employee of the property management company which is the named Landlord.
10. The Tenants relied on the case The Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391 where Mr. Chiarelli provided property management services to property owners, including representation at the Board. An investigation from the Law Society ensued as there had been multiple complaints that Mr. Chiarelli, who was not a licensed paralegal or lawyer, was advertising and providing legal services to his clients.
11. Section 1 (6) of the Law Society Act states:
(6) without limiting the generality of subsection (5), a person provides legal service if the person does any of the following:
1. Gives a person advice with respect to the legal interest, rights or responsibilities of the person or of another person.
2. Selects, drafts, completes or revises, on behalf of a person, …
…
vii. a document for use in a proceeding before an adjudicative body
3. Represents a person in a proceeding before an adjudicative body.
4. Negotiates the legal interests, rights or responsibilities of a person.
[Emphasis added.]
12. Mr. Chiarelli took the position that he was a landlord as defined by section 2 of the Residential Tenancies Act, 2006 (“Act”) and was therefore exempt from the licensing requirement. He argued he was permitted to appear before the Board as the landlord’s personal representative since he was employed by the landlord as a property manager and performed the functions of a landlord – and that the landlord had a right to self-represent.
13. Section 2 of the Residential Tenancies Act, 2006 defines a landlord as:
“landlord” includes,
(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,
(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)
14. In Chiarelli while the Court of Appeal found Mr. Chiarelli to be a landlord by virtue of the definition found in section 2 of the Residential Tenancies Act, 2006, they also found that he had been providing legal services to a third party and therefore could not represent his clients before the Board as he was not licensed by the Law Society Act nor did he fall into one of the exemptions listed.
15. The Tenants also relied on LTB order EAL-80406-19, issued on May 27, 2019, in which the Member dismissed an application signed by the owner of a property management company [LD] retained by the Landlord to manage the rental unit.
- The Member found the following:
[4] Pursuant to section 185 of the Act, the application before me must have been signed by the Landlord or someone representing the Landlord under the authority of the Law Society Act.
[5] LD is not authorized to provide legal services to the Landlord with respect to matters that arise under the Act. As LD is neither the Landlord nor an individual licensed under the Law Society Act, the application is not properly before the Board.
17. The Tenants argue that by signing the notice of termination and L2 application, JS attempted to provide legal services without being licensed pursuant to subsection 1 (6) of the Law Society Act; as such the application before the Board is improper and must be dismissed.
LANDLORD’S RESPONSE
18. The Landlord argues that W.P.M. falls into the definition of a landlord as per section 2(1) of the Act as they perform functions that include but is not limited to:
- Permitting tenants to move in and/or move out of the rental unit; and
- Collecting rent from the tenants;
19. The application before the Board is proper as it was filed by a full-time employee of the Landlord which is a company.
ANALYSIS
20. Based on the evidence before me I find that W.P.M. falls within the definition of a “Landlord” contained in s.2(1) of the Act. I say this because the functions of the property management company as testified to by the Landlord’s agent, fall within the definition of a landlord as outlined in the Act.
21. Section 43 of the Act outlines three requirements for a notice of termination including that it be:
(c) be signed by the person giving the notice, or the person’s agent.
22. Further, subsection 185(1) of the Residential Tenancies Act, 2006 requires that the application be signed by the applicant.
23. I find that JS, who is an employee of the Landlord, that is a corporate entity, appropriately signed the notice of termination and application. A corporation is not a person, so it appoints individuals to sign its paperwork on its behalf and I am satisfied that JS is authorized by the Landlord to prepare and sign documents.
24. I do not find that JS has attempted to provide legal services by signing these forms and was acting in a manner permitted by the Residential Tenancies Act, 2006 (Act).
- The main problem with the Tenants’ argument is there Mr. Chiarelli was acting on behalf of an individual who was a landlord; whereas in the before me, JS is an employee of a corporate entity which is the landlord. Moreover, Mr. Chiarelli’s case was not about who could fill out the administrative paperwork, it was about who could represent before the Board. In that case, Mr. Chiarelli appeared on the landlord’s behalf to represent him. In the case before me, the Landlord had a legal representative advocate its interests and represent the company.
- To find that only lawyers or paralegals can sign notices of termination and applications on behalf of corporate landlord would be contrary to subsection 183 of the Act which requires the Board to adopt the most expeditious method to resolve disputes while ensuring adequate representation.
- For the foregoing reasons, the Tenant’s motion to dismiss the application is denied; I proceeded to hear the Landlord’s application.
L2 APPLICATION
28. By way of background, this is a month to month tenancy in which rent is due on the first of the month. The residential premise is a single residence, two-storey house whose zoning has changed from residential to community park. The Landlord testified that the house is a farmhouse that occupies land (total 2500 square feet) which is now going to be a community park for Bowmanville residents. A copy of the Municipality of Clarington’s Official Plan Map was submitted as evidence.
29. The Landlord’s L2 application is based on a N13 notice of termination served to the Tenants on August 30, 2019 with a termination date of December 31, 2019 pursuant to subsection 50(1) of the Act which states:
50 (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,
(a) demolish it;
(b) convert it to use for a purpose other than residential premises; or
(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.
30. As there are less than 5 units at the premises, there is no compensation required to be paid to the Tenants.
31. The notice alleges that the Landlord requires vacant possession of the rental unit as it intends to demolish it. A copy of the permit application signed March 15, 2019 was submitted to the Board as evidence. The Landlord later learned that a permit was not required for the demolition of a farmhouse, according to the Ontario Building Code.
32. The Landlord testified that this is not the first N13 notice of termination served to the Tenants. A previous N13 notice of termination was served to the Tenants in October 2018 with a termination date of January 31, 2019. The Tenants sought an extension until June 2019 but did not move out, resulting in the Landlord serving another N13 notice of termination which resulted in the current application before the Board.
33. On cross-examination, the Landlord confirmed that there was confirmation of discontinuation of services submitted with the demolition permit to the City on March 15, 2019, one of which said:
This section of the form must be completed to indicate that the following services have been disconnected or turned off prior to issuance of a permit for the demolition and/or moving a building.
Electricity Hydro One Networks
Signed by John Kovacs on March 15, 2019
34. The Landlord also confirmed that the electricity was disconnected as of the date of the hearing. He testified that once he became aware the demolition permit was not required, he attempted to reconnect the electricity but Hydro One Networks could not reconnect it due to the age of the house.
35. He stated that the disconnection went through because he thought the Tenants moved out as per the first N13 notice of termination.
TENANT’S RESPONSE
36. BV’s evidence was that as they do every winter, they left the rental unit in December 2018 to fly down to Florida for the winter. Before they left, there were no issues in the rental unit. When they returned in April 2019, they found that there was no hydro or water in the rental unit as there was no heat in the unit and their fridge items were spoilt. A friend that they had left in charge of taking care of the property and mail notified them that the hydro and water had been disconnected in March 2019.
37. As they could not reside in the rental unit, they stayed over that night at their friend’s place and the following night at their daughter’s place. They flew out to Cuba on April 4, 2019 for a wedding and returned April 20, 2019. Prior to leaving, they contacted the Landlord inquiring about the hydro and water at the rental unit. The Landlord offered to provide a generator as a temporary fix, but this conversation took place with MV.
38. On cross-examination BV confirmed that the Landlord offered to pay for their accommodation at a hotel and the parties agreed the Tenants would vacate the rental unit by June 2019. When the Landlord presented a contract with these terms (Mutual release which was entered into as evidence), the Tenants did not sign it as they didn’t want to sign their rights away and because they believed it contained some date errors.
39. On re-direct, the BV confirmed that a condition was placed on signing the agreement, specifically, that the hotel would be covered if the agreement was signed.
40. MV’s evidence was with respect to the generator; specifically, that the Landlord wanted the Tenant to pick it up and connect it, which he was not comfortable with doing so, so he refused. To date, there is neither a generator, nor reimbursement from the Landlord for a generator at the residential property.
41. On cross-examination, MV confirmed that he did not reside on the property but still has their belongings in the rental unit.
42. On re-direct, MV confirmed that had the Landlord brought the generator and connected it, he would have accepted it.
43. The Tenants allege that the Landlord is in serious breach of its obligations under the Act, by failing to provide electricity and water (as the pump cannot work without electricity) and that the Landlord’s request for eviction must be dismissed pursuant to subsection 83(3)(a).
ANALYSIS
44. Section 83(3) of the Act states:
83 (3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
45. Paragraph 83(3)(a) indicates the breach must be “serious” for the mandatory relief from eviction provisions to apply. The Act does not define the term “serious”. However, I am of the view that the word “serious” in section 83 should be interpreted to mean substantial and on-going and not merely minor, trivial or of passing concern.
46. It is confirmed by both parties that the electricity, water and heat remain disconnected as of the date of the hearing
47. Based on the evidence before me I find that the lack of electricity, water and heat rises to the level of “serious” in accordance with subsection 83(3)(a) of the Act. As a result, I find that the Landlord is not entitled to an order for eviction pursuant to paragraph 83(3)(a) of the Act and the Landlord’s application must be dismissed.
48. I also note that the Tenants filed their own application with respect to this issue and an order with a rent abatement was issued on May 15, 2019 (TET-01657-19).
- This order contains all of the reasons for my decision within it. No further reasons shall be issued.
It is ordered that:
1. The Landlord’s application is dismissed."
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