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RTA - Illegal Eviction. Gykan Enterprises Inc. v Pourshian
In Gykan Enterprises Inc. v Pourshian (Div Court, 2023) the Divisional Court considered an RTA LL appeal (dismissed) where the LL argued that the tenancy was commercial, and that there was a physical lock-out which achieved eviction before the LTB applications (one to determine RTA application and another for the lock-out). There also a post-lock-out 'temporary access' agreement (ostensibly under the CTA) to allow the tenant to retrieve their belongings, which the LL advanced as an estoppel:[7] Gykan submits that the Board did not have jurisdiction to determine whether the Act applied because it validly evicted Mr. Pourshian before he brought his application to the Board. Gykan relies on Mr. Pourshian having executed the temporary access agreement. The terms of the agreement included Mr. Pourshian’s acknowledgment that he had defaulted under the lease, that he would have access for a few hours only to retrieve his personal belongings, and that the agreement was served on Mr. Pourshian pursuant to the Commercial Tenancies Act, R.S.O. 1990, c. L.7.
[8] I do not accept Gykan’s submissions. The Board has jurisdiction over “tenancy agreements” as defined in s. 1 of the Act. Where it receives an application regarding whether the Act applies, it is required to make that determination. Gykan’s reasoning is circular. A landlord locking a tenant out on the basis of its view that a tenancy is commercial cannot pre-determine the issue so as to deprive the Board of jurisdiction.
[9] Mr. Pourshian’s signing of the temporary access agreement does not change this conclusion. Given the Board’s finding that the tenancy was residential, Gykan illegally locked Mr. Pourshian out of the unit. He was required to sign the agreement to retrieve his personal belongings. Also, while Mr. Pourshian agreed to terms under the temporary access agreement stating he was in default of the lease, he did not expressly agree that the tenancy was commercial nor that Gykan was entitled to lock him out of the unit. . Beseiso v. Presendieu
In Beseiso v. Presendieu (Div Court, 2022) the Divisional Court considered general damage awards ordered by the LTB when a LL illegally evicted the tenant. The case (and cases cited) are noteable for the low quantum awarded, amounts that some landlords may view as an acceptable 'cost of business':[6] The Tenant has provided comparable decisions where the LTB has ordered general damages in cases of harassment and illegal lock outs. In the first case cited, HOT-02167-17 (Re), 2019 CanLII 86881 (ON LTB), the LTB reasoned that:…it seems to me that the quantum of general damages normally awarded to compensate a tenant for an illegal lockout is $2,500.00. That sum takes into account the inherent indignity of having one’s home taken away; the time, effort, frustration, and stress of having to arrange food and accommodations while also seeking legal assistance; and the inconvenience and displacement of being without a home.
To be clear, I do not find an award of $2,500.00 to be automatic. It is open to a landlord to show that a lockout had an unusually low impact on a tenant. Likewise, it is open to a tenant to show that a lockout had an unusually high impact. Absent unusual circumstances, however, I find $2,500.00 to be the normal award.
(at paras. 35 and 36) [7] In ST-r26870-12 (Re), 2012 CanLII 46802 (ON LTB), the LTB found that the Landlord and the Landlord’s agents “harassed, obstructed, coerced, threatened and interfered with the Tenant, altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of his household.” It found this to be on the extreme end of harassment and being satisfied that the Tenant experienced extreme psychological distress, that an award of damages of $5,000 was justified upon the available evidence.
[8] Here, we conclude the LTB erred in law in failing to address in its reasons the claim for general damages, the evidence in support of that claim and the legal framework applicable. The lack of any such discussion in the reasons, in light of the findings of the Landlord’s actions, and the impact of those actions on the Tenant mean that the reasons are incapable of any meaningful appellate review. The reasons for the LTB decision on this issue do not appear from the record as a whole. Accordingly, we allow the cross-appeal on this basis.
[9] Section 210(4) of the RTA provides this court with the authority to affirm, rescind, amend or replace the decision or order, or remit the matter to the Board with the opinion of the Divisional Court.
[10] We are satisfied that on the record before us that the Tenant has shown the LTB ought to have considered and made an award of general damages based on the evidence and prior jurisprudence of the Board in similar cases. This litigation has been lengthy: the events involved began in 2019. We have the benefit of a psychological report, and the Landlord received notice of the arguments to be made and chose not to participate in the appeal further.
CONCLUSION
[11] In all of the circumstances, we amend the order of the LTB and require the Landlord to pay the Tenant $5,000 in general damages for pain and suffering relative to the findings that the Landlord breached ss. 23 and 24 of the RTA. . Minas v. Adler
In Minas v. Adler (Div Court, 2022) the Divisional Court considered when a rental unit is 'vacant' [particularly, that it excludes situations "where a landlord moves into a rental unit after having illegally terminated an otherwise legal tenancy": para 66]:[63] The Landlords submit that the Member’s interpretation of the term “vacant” is not consistent with the typical meaning ascribed to that word, that is “being empty” or some derivative of that notion. Because the Landlords had moved back into the premises, the Member could not have found the premises to be “vacant”.
[64] The Landlords further submit that punitive remedies short of recovered possession are available to the Board in situations where a landlord illegally terminates a tenancy and takes possession of a rental unit. As such, the Landlord’s suggested interpretation would not leave the Board without the ability to impose a deterrent upon nefarious landlords.
[65] I disagree with this submission.
[66] First, the term “vacant” must be “read in [its] entire context, in [its] grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". As noted above, one of the purposes of the RTA is to “to provide protection for residential tenants from unlawful rent increases and unlawful evictions”. To read “vacant” in a literal or absolute sense, as was submitted by the Landlords, would permit landlords to profit from illegally evicting tenants. Indeed, one can easily imagine a situation where, in a tight rental market, a landlord could illegally end a tenancy and then move into the unit. The tenant in this example could be rendered homeless as a result of the landlord’s illegal actions and the Board would have no ability to give possession of the rental unit back to the blameless tenant. This result runs contrary to the purposes of the RTA which include protecting tenants from unlawful convictions. The Landlords’ suggested interpretation of the term “vacant” in s. 31(3) of the RTA cannot, therefore, be accepted. Rather, the term “vacant” must exclude situations where a landlord moves into a rental unit after having illegally terminated an otherwise legal tenancy. The Member was correct in making this finding.
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