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RTA - Determining Application of the RTA [s.9]. Minas v. Adler
In Minas v. Adler (Div Court, 2022) the Divisional Court considers and approves the Optimal Space v. Margana Holdings case, which sets out a test for deciding when a rental unit is subject to the RTA (ie. application):[23] The Member then continued in his analysis. He considered the Landlords’ submission that the four-prong test described in Optimal Space Inc. v. Margana Holdings Inc., 2005 CanLII 14142 (ONSC) ought to be applied in order to determine whether a rental unit is subject to the RTA. Accordingly, the Member considered:1. The intention of the parties;
2. The de facto use of the premises;
3. The predominant purpose or use of the rental unit; and
4. The relationship as between the landlord and the tenant in question. [24] The Member examined the evidence before him and found the following:1. The intention of the parties was that the RTA would apply to the tenancy;
2. There was no evidence upon which he could reasonably find that the de facto use of the premises was anything but residential. Specifically, the Member examined the duration of the tenancy, and found that there were no commercial or business activities being conducted at the rental unit that would preclude the application of the RTA. The Member reviewed pictures taken by the Landlord and determined that the “workstation [in the pictures] appears, based upon the Landlords’ pictures, to be no different than what many Ontarians have set up in their homes so that they can work from home and participate in Zoom or other remote meetings”. The Member also reviewed the Landlords’ pictures of the home office and drew the same conclusions.
3. Given the foregoing, the Member found that the predominant use of the premises was a residential use.
4. Finally, the relationship between the parties did not suggest that the RTA was inapplicable. [25] Accordingly, the Member found that the RTA applied to the tenancy as per Optimal Space v. Margana.
....
[57] Further, the Member considered Optimal Space v. Margana Holdings. The Member considered the relevant evidence and made findings based upon that evidence. Again, no error was committed in his analysis. Further, this ground of appeal is also based upon a question of mixed fact and law, which is not in the Divisional Court’s purview as noted above. . Chisholm v. Kwan
In Chisholm v. Kwan (Div Court, 2022) the Divisional Court considered a tenant's argument that they had an ownership interest in the premises:[16] The Tenant submits that she was not in a landlord/tenant relationship as of the time of the LTB hearing and instead her relationship was governed by the Agreement of Purchase of Sale from 2019. Based on the evidence before the LTB, it did not err in law in proceeding with the hearing. As set out by this court in Banks v. Azman, 2019 ONSC 2542, at para. 10, the LTB was entitled to enter upon the inquiry it did and to determine the applicability of the RTA to the parties.
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