[22] This court considered the proper interpretation of s. 5(i) in Cowie v. Bindlish, 2010 ONSC 2628 (Div. Ct.), and stated as follows:
17 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.
18 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.
[23] The Tenant submits that the Member failed to explain why she departed from Cowie v. Bindlish and LTB decisions that have subsequently found that the Board must examine the circumstances throughout the tenancy to determine whether the RTA began to apply at a later point in time.
[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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