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RTA - General. Tataw v. Minto Apartment L.P.
In Tataw v. Minto Apartment L.P. (Div Court, 2023) the Divisional Court considered an already evicted tenant's remedy, contrasting their situation with a pre-eviction automatic stay under R63.01(3). At paras 5-7 the court comments on the nature of the interests protected by the RTA:[2] An eviction order of the LTB is stayed automatically upon filing of an appeal to this court: Courts of Justice Act, RSO 1990, c. C.43, s. 134; Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 25 and R. 63.01 of the Rules of Civil Procedure. However, where an eviction is carried out by the Sheriff in accordance with an LTB order before a stay is in place, then the situation is different. It is then too late to stay the eviction order, which has been executed. Rather, in this circumstance, the tenant is obliged to move for an interim order from this court for repossession of the unit or an order precluding the landlord from re-renting the unit. In the absence of such an order, the landlord may rent the unit to a new tenant.
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[4] Where the eviction or the re-renting of the unit has taken place in violation of a statutory stay or an order of the LTB or of this court, or where the new tenancy is a sham or to a person not at arm’s length from the owner, there may be room to restore a tenant to possession: MacMillan v. Martin, 2022 ONSC 357 (Div. Ct.); Margulis v. E. Manson Investment Limited, 2020 ONSC 7969 (Div. Ct.); Lysak v. Atkinson, 2020 ONSC 6972. That is not this case. The landlord re-rented the unit to a new arm’s-length tenant, who has been in possession since September 2022. In these circumstances, even if the appellant’s appeal were to succeed on the merits, the court would not oust the new tenant to restore the appellants to the unit.
[5] In the alternative, the appellant seeks an order to compel the landlord to “restore” her to a different unit, when it becomes available. There is no statutory or common law authority for such an order, and it misconceives the structure of the Residential Tenancy Act. The Act does not protect the landlord/tenant relationship, but rather the tenant’s interest in the rented unit. Once that interest has been extinguished, there is no jurisdiction to order that the tenant be granted an interest in a different rental unit.
[6] The Act balances the interests of landlords and tenants. It provides substantial security of tenure for tenants – a derogation of the landlord’s common law right to control the use to which it puts its own property. This security of tenure continues until the tenant gives up the tenancy or the LTB makes an order terminating the tenancy. Where the LTB makes such an order, there are rights of reconsideration before the LTB, and appeal rights to this court, either of which may serve to stay an eviction order and delay the date by which a landlord may recover the use of its property. However, tenants must avail themselves of the processes for reconsideration and/or appeal in a timely way if they wish to prevent eviction and loss of the tenancy.
[7] Therefore, I conclude that on the preliminary issue, the remedy of restoration of the tenancy – in the original unit – is not available to the appellants in the circumstances of this case. An order that a tenancy be established for the tenant in another unit owned by the landlord is not available in law. . Minas v. Adler
In Minas v. Adler (Div Court, 2022) the Divisional Court attempts to address the apparent contradiction between the stated 'exclusive jurisdiction' of the LTB over RTA matters [RTA 168(2)], and the permissive Superior Court provision [RTA s.207(2)] that allows lawsuits over RTA matters where the claims are above the Small Claims limit of $35,000:[41] Given the foregoing, the Board was correct in interpreting its own statute. The language of section 168 is clear, namely that the Board has exclusive jurisdiction to hear matters falling within the purview of the RTA. Conversely, under section 207 of the RTA, the Superior Court of Justice may exercise any power specifically allocated to the Board when a plaintiff/applicant seeks certain monetary relief. The discretionary nature of the Superior Court’s powers as delineated by the statute is such that the legislature gave the Superior Court the ability to decide whether it wished to exercise the powers in question. In this case, Dow J. chose not to exercise these powers by stating “it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant board. If any claims for damages remain, this action seeks same and remains available.” . Sutton v. Patterson and Morrow
In Sutton v. Patterson and Morrow (Div Ct, 2021) the Divisional Court held that the RTA constitutes a 'complete code', even to the extent of excluding the common law regarding such things as the law of fixtures:[39] Validly enacted legislation is paramount over the common law. The Legislature can offer an exhaustive account of the law in an area (a code) which occupies the field in that area, displacing the common law rules and cutting off further common law evolution: see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at 17.4; see also Bank of Montreal v. Innovation Credit Union, 2010 SCC 47, [2010] 3 S.C.R. 3, at paras. 53-54.
[40] Mobile home and land lease home tenancies were not originally protected by residential tenancies legislation. The RTA now deals extensively and in detail with land lease homes. For example, s. 3(1) of the RTA codifies the Legislature’s intent that the RTA take precedence over conflicting legislation, and s. 3(3) shows a particular concern for protecting the ownership interests of tenants who are land lease owners, where it says:3(1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. [...]
(3) In interpreting a provision of this Act with regard to a mobile home park or a land lease community, if a provision in Part X conflicts with a provision in another Part of this Act, the provision in Part X applies. [41] By including the concept of permanency in the definition of a land lease home, the Legislature expressly addressed characteristics that would otherwise be relevant in determining whether a structure is land or chattel, and thus who it belongs to. For example, in the cases of Haggert v. Brampton (Town) (1897), 1897 CanLII 14 (SCC), 28 S.C.R. 174, and Stack v. T. Eaton Co. (1902), 4 O.L.R. 335 (Ont. Div. Ct.), as cited by the Appellant, the intention that a structure be permanent was a determinative factor in finding whether the structure is a chattel or part of the land.
[42] As the Respondents contend, the compounded effect of the history of reform and the comprehensive nature of the RTA itself shows the Legislature codified the law in the residential tenancies context, so the common law in respect of fixtures does not apply. I agree.
[43] Further, to adopt the Appellant’s argument on the matter would make a land lease home the property of the land lease community as soon as it was affixed to its location or connected to services, thus defeating the purpose of this new regime and these new rights. Moreover, the Legislature’s intent to preserve the right to sell “permanent” land lease homes would be frustrated, as would its scheme establishing the circumstances in which the landlord can sell, retain for the landlord’s own use, or dispose of the land lease home. . White v. Upper Thames River Conservation Authority
In White v. Upper Thames River Conservation Authority (Ont CA, 2022) the Court of Appeal considered a land lease case, appealed from the LBT and through the Divisional Court. The original issue was the application of the RTA to the lots given that the lease called for seasonal periods of non-occupancy, a provision that had been waived extensively in practice. At the CA it was agreed that the RTA applied, and the only issue was the legality of the non-occupancy period provisions (the court held against their legality):The Residential Tenancies Act
[8] The purpose of the Act, as set out in s. 1, is 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."
[9] The Act governs more than the rental of apartments in apartment buildings. It also governs situations in which tenants own the homes in which they live but rent the land on which those homes sit – the situation in this case. The Act defines a “land lease home” as a dwelling that is “a permanent structure where the owner of the dwelling leases the land used or intended for use as the site for the dwelling”. The general terms of the Act apply to land lease homes along with a number of specific provisions that cover land lease homes and communities, none of which are germane to this appeal.
[10] The Act is remedial legislation designed to redress the imbalance of power between landlords and tenants. It removes leases from the ordinary contract law principles that would otherwise govern and establishes extensive statutory rights for tenants. The Act enjoys primacy over all other legislation, save the Ontario Human Rights Code, and the parties are prohibited from waiving or limiting the protection the Act provides. The key legislative provisions in this regard are ss. 3 and 4:3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.
4 (1) Subject to subsection 12.1(11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.
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