|
RTA - Personal and Purchaser Possession (4). Nayyer v. Sorensen [part-time 'residential occupation' by LL or family]
In Nayyer v. Sorensen (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a landlord's RTA s.210 appeal, here brought against the dismissal of a 'personal possession' [RTA s.48(1) 'Notice, landlord personally, etc., requires unit'] termination.
This case addresses the situation where the landlord (or a family member) proposes to maintain more than one 'residence' for these RTA s.48(1) purposes:[2] The basis for the application was that the appellant, who lives in Oakville but works in Toronto, wished to use the rental unit during the week because he found commuting back and forth to be stressful. His plan was to stay at the unit on weekdays and live with his family in Oakville on weekends. The Member dismissed the application for the following reasons:I find that the Landlord’s desired use of the rental unit on the weekday does not constitute residential occupation under s. 48(1) of the Act. I say this because it is well settled law that temporary or part-time residency does not constitute “residential occupation” under s. 48(1).
In Kohen v. Warner, 2018 ONSC 3865, the landlord served notice of termination on the tenant for an adult son’s use. The son was a full-time university student in London, Ontario, who travelled home to Toronto every weekend. He wanted the rental unit so he had somewhere to stay on the weekends and in the summer breaks. His plan was to do that for five years. The Board dismissed the application on the basis that the intended use was not “residential occupation” within the meaning of s. 48 because it was occasional use only. The Divisional Court dismissed the landlord’s appeal on the basis that the Board’s interpretation was reasonable given the purpose of the Act.
Applying the law in Kohen I find that the Landlord in this case has not demonstrated a genuine intention to occupy the rental unit for at least one year for residential purposes because he intends to live in the rental unit only on a part-time basis. The Landlord’s application must therefore be dismissed. [3] The appellant submits that the Member erred in relying on this court’s decision in Kohen v. Warner, 2018 ONSC 3865 (Div. Ct.) because the Landlord’s plan in this case is “substantially more consistent and frequent” than the planned use in Kohen. He submits that the facts in Kohen show that the proposed use was for only 28% of the year while in this case it is for 72%, and as a result Kohen does not apply. In support of this submission, he relies on the Board decision in Boland v. Tarrant, 2024 ONLTB 55330, at para. 56, where the Board Member stated “… I am not convinced that living more than six months of the year in the rental unit is an infrequent or occasional use.”
[4] In my view, the Board did not err by relying on Kohen. The court in that case relied on MacDonald v. Richard, [2008] O.J. No. 6076 (Div. Ct.), which applied principles from two earlier cases, Wiazek v. Armstrong, [1994] O.J. No. 2737 (Gen. Div.), at paras. 61-62, and McDonald v. Smith, [1993] O.J. No. 1680 (Gen. Div.), at paras. 2-4. It is clear from all of these cases that the Member was correct in concluding that “temporary or part-time residency does not constitute ‘residential occupation’ under s. 48(1).” This interpretation is consistent with the remedial purpose of the Act and has consistently been applied in decisions of the Board: Kohen, at para. 12; Bale v. Budgell, 2025 ONLTB 85094, at paras. 28-29; Poupart v. Sakr, 2024 ONLTB 26760, at paras. 15-17; Cannon v. Moniz, 2025 ONLTB 67744, at para. 26; Sherar v. Lenchyshyn, 2024 ONLTB 640009, at para. 10; Sutherland-Cote v. Nicholas, 2024 ONLTB 12308, at para. 14.
[5] Counsel for the appellant conceded in oral argument that he was unable to find a single Board decision in which a s. 48(1) eviction was based on part-time residency. This includes Boland v. Tarrant, on which the appellant relied, where the Landlord’s application was dismissed notwithstanding that the Board was “not convinced” that living in a rental unit for more than six months of the year was “infrequent or occasional” use.
[6] In any event, s. 210(1) of the Act provides that appeals from orders of the Board are “only on a question of law.” Even if part-time occupancy can constitute “residential occupation” for the purpose of s. 48(1) of the Act, whether it did so in this case is a question of mixed fact and law from which no appeal lies: Kohen, at para. 12.
|
