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Occupants That Fall Between the Cracks of the RTA -
'Accommodation' as a Service under the Consumer Protection Act, 2002

(13 August 2023)

1. Overview

There is a little-used Consumer Protection Act (CPA) [Ontario] angle for people in 'accommodation' that is exempt from the Residential Tenancies Act (RTA). This CPA approach isn't anywhere near as thorough-going as the RTA, but for some specific categories of occupants it may be more than they thought they had.

I use the term 'accommmodation' because that's the term that the CPA uses. In fact these 'consumers' could be technically tenants, licensees, occupants or anything else - it likely doesn't matter. The CPA doesn't define the term, so the law is left to common law interpretation and that's pretty broad, especially with the CPA being a 'benefits-conferring' statute.

This consumer approach can apply where "an individual (is) acting for personal, family or household purposes and does not include a person who is acting for business purposes" [that's the definition of 'consumer': CPA s.1] - and where there is a contract involved (since the additional CPA definition of "consumer agreement" requires that "the supplier agrees to supply goods or services for payment").

The CPA relies primarily on the civil courts for enforcement (there is no tribunal) so - in my view at least - it's more generally accessible. Unrepresented plaintiffs can advance their cases in the simpler Small Claims Court with it's $35,000 limit, or in the more complex higher Superior court if they want. There are two categories of CPA 'right' covered here, and both have general civil remedies available to them: ie. the 'unfair practices' rights have rescission (ab initio), damages, restitution, "exemplary or punitive damages in addition to any other remedy" [CPA 18(1-2,11)], and the 'mandatory-disclosure' rights have contract cancellation (ab initio), restitution, and "exemplary or punitive damages or such other relief " [CPA 94(1), 96(1), 100(2-3)]. Like most CPA case law it's under-developed, so from that point of view this approach has much potential in these days of unprecedented rental harshness.

This piece attempts to explain how the CPA may apply to and benefit these categories of consumers. The types of 'accommodation' that the CPA may apply to are set out at s.2 below, and the potential CPA rights and remedies are set out at ss.3-4 below. Some issues are referred to the more thorough Isthatlegal Consumer Protection (Ontario) Legal Guide where appropriate.

2. Applicable Categories of Occupants

(a) The Categories

To understand which categories of 'accommodation' this may apply to, understand first that the CPA exempts all "consumer transactions regulated under the Residential Tenancies Act, 2006" from it's application [CPA s.2(2)(g)]. That means that if a category of occupants is governed by the RTA, even partially, the CPA doesn't apply to it. This new approach will only apply to categories that are fully-exempt from the RTA, which are these [RTA s.5]:

. Tourist and Seasonal Accommodation [RTA 5(a)]

"living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;"

. Farm Employment Accommodation [RTA 5(b)]

"living accommodation whose occupancy is conditional upon the occupant continuing to be employed on a farm, whether or not the accommodation is located on that farm;"

. Exempt Education-Related Accommodation [RTA 5(g)]

"living accommodation provided by an educational institution to its students or staff where,
. the living accommodation is provided primarily to persons under the age of majority, or all major questions related to the living accommodation are decided after consultation with a council or association representing the residents, and
. the living accommodation does not have its own self-contained bathroom and kitchen facilities or is not intended for year-round occupancy by full-time students or staff and members of their households"

. Business Live-In Employee Accommodation [RTA s.5(h)]

"living accommodation located in a building or project used in whole or in part for non-residential purposes if the occupancy of the living accommodation is conditional upon the occupant continuing to be an employee of or perform services related to a business or enterprise carried out in the building or project;"

. Owner-shared Accommodation [RTA s.5(i)]

"living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;"

. Joint Business/Residential Accomodation [RTA s.5(j)]

"premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation;"

. Rehabilitation or Therapeutic Accomodation [RTA s.5(k)]

"living accommodation occupied by a person for the purpose of receiving rehabilitative or therapeutic services agreed upon by the person and the provider of the living accommodation, where,
. the parties have agreed that,
(A) the period of occupancy will be of a specified duration, or
(B) the occupancy will terminate when the objectives of the services have been met or will not be met, and
. the living accommodation is intended to be provided for no more than a one-year period;

. Premises Crown-Forfeit [RTA 5(m)]

" living accommodation in a residential complex in which the Crown in right of Ontario has an interest if,
. the living accommodation or residential complex was forfeited to the Crown in right of Ontario under any Ontario statute or the Criminal Code (Canada),
. possession of the living accommodation or residential complex has been or may be taken in the name of the Crown in right of Ontario under the Escheats Act, 2015, or
. the living accommodation or residential complex is forfeited corporate property to which the Forfeited Corporate Property Act, 2015 applies;

(b) Landlord and Tenant Board (LTB) Applications to Determine RTA Application

Before you go this CPA-route though you may want to determine clearly if your situation is, or is not, RTA-governed - since if it is RTA-governed you likely have more rights, and will want to pursue those rights. The RTA itself has a procedure for this, which is linked here: Board Application to Determine Application of RTA.

3. CPA Unfair Practices and Accommodation

(a) CPA Unfair Practices

In section 1 we've seen that 'consumer' is legally a broad term that covers "an individual (is) acting for personal, family or household purposes and does not include a person who is acting for business purposes" [CPA s.1], and the related term of 'consumer transactions' is equally broad ["any act or instance of conducting business or other dealings with a consumer, including a consumer agreement"] [CPA s.1].

Insofar as 'accommodation' [which is not otherwise defined in the CPA, and thus falls to be defined under the common law: Toronto (City) v. Craft Kingsmen Rail Corp. (Div Court, 2023), para 42] meets these 'consumer' criteria then it also is subject to the also broad CPA 'unfair practices' rights [CPA ss.14-19]. These are set out in detail in Consumer Protection (Ontario) Law - Chapter 6 - Unfair Practices. My detailed explanation of 'unfair practices' - which are quite tactically-rich - are set out in this chapter of the Guide.

For now though, CPA "unfair practices" fall into three categories (primarily addressing supplier 'representations'):
. false, misleading or deceptive representations [CPA 14(1)];
. unconscionable representations [CPA 15(1)]; and
. re-negotiation under duress [CPA 16].
(b) CPA Unfair Practices Remedies

The CPA's remedial provisions for unfair practices focus centrally on 'rescission' ab initio ('from the start') - but also include damages, restitution, and "exemplary or punitive damages in addition to any other remedy" [CPA 18(1-2,11)].

While these 'unfair practice' remedies are statutorily distinct from those available for responding to other CPA (ie. 'general') rights violations, they are quite similar to the general remedies. Both sets of remedies are premised on rescission of the consumer contract 'ab initio' (ie. cancellation as though it had never been made) and, where possible, restitution between the parties to achieve that goal. However there are other differences, and those are all explained in Chapter 6 (see the above link) in the Consumer Law (Ontario) Guide.

4. CPA 'Mandatory Disclosure' and Accommodation

(a) Note

The CPA is generally poorly-understood by lawyers, paralegals and even the courts, but in order to advance this 'accommodation' argument fully you will have to understand it's operation in terms of CPA-complexities in detail, and this is done in sub-section (b) next. If you only need to know the 'bottom-line' in terms of the CPA's 'mandatory disclosure' application to 'accommodation', jump to sub-section (c) ['CPA Mandatory-Disclosure As It Can Apply to Accommodation'] and (d) ['CPA Mandatory-Disclosure' Remedies], below.

(b) Understanding How The CPA 'Mandatory Disclosure' Works

. Mandatory CPA Disclosure and the 'Forms' of the Consumer Transaction

The aspect of the CPA relevant here is that of 'mandatory disclosure' - which requires 'suppliers' (ie. sellers) to provide required information, and sometimes certain limited rights (such as time-limited cancellation), to 'consumers' (ie. buyers). The basic idea behind 'mandatory disclosure' is to (frankly) force-feed essential legal information to the consumer, because 'suppliers' (with a healthy assist from too-trusting consumers) are motivated to 'hide the bad stuff' until it's too late and the 'deal is done'. It's an age-old human struggle - you can view the CPA primarily as a legal effort to mitigate the effects of greed (of 'suppliers') and that of gullibility (of 'consumers').

You might think that the specific terms of 'mandatory disclosure' in each consumer transaction (which are all 'contracts') turn on what is being bought (ie. a car, a refrigerator, a gym membership etc), but the 'thing' being bought is typically only a minor factor in terms of it's legal regulation. The primary and more substantial factor is how the transaction is reached, which legally referred to as the 'form' of the transaction (ie. is it done in-person, over a phone, on the internet, whether you pay-in-full immediately or make term-payments, and physically where the terms are negotiation and excecuted?).

There are four main 'forms': 'future performance' [CPA s.21-26], 'internet' [CPA s.37-40], 'remote' [CPA s.44-47] and 'direct' [CPA s.41-43.1] - and each has different (though similar) mandatory disclosure rules (if you're interested, they are set out in the CPA at those noted sections). Not surprisingly, the 'internet' form of consumer agreement means one "formed by text-based internet communications" [CPA s.20(1)]. Similarly, the 'remote' form is one that is "entered into when the consumer and supplier are not present together" [CPA 20(1)]. The 'future performance' form (dearly loved by finance companies) is one "in respect of which delivery, performance or payment in full is not made when the parties enter the agreement" [CPA s.1].

Lastly (and of central importance to the 'accommodation' issue), we have the 'direct' form of consumer agreement which is "negotiated or concluded in person at a place other than, (a) at the supplier’s place of business, or (b) at a market place, an auction, trade fair, agricultural fair or exhibition". I don't know why they call this 'direct', but I suspect it harkens to the age of 'door-to-door' (and thus 'direct') sales. Today, door-to-door salespeople often meet with a telephone call to the local police, but the consumer law concept appears to have survived.

Note, interestingly, that there is no paper (or equivalent 'electronic') 'form' of contract formation, that's because the first requirement of all 'mandatory disclosure' forms is that the final form of the deal be both in writing and be delivered to the consumer [CPA 22, 39(1), 42(1), 46(1)]. Writing is assumed to be required for all 'forms' of consumer contract.

. 'Forms' Are Not Mutually-Exclusive

But of course, life (and law) isn't so simple. Contract formation is usually of combination of verbal, internet, social media, telephone, fax, paper - and now even ZOOM - media. And that brings us to CPA s.4, which reads:
Consumer agreements
4 A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions of this Act and of the regulations that apply to each type of agreement for which it meets the criteria, except where the application of the provisions is excluded by the regulations.
So don't think of these consumer transaction 'forms' as mutually-exclusive - they aren't. One agreement can fall into two or more 'forms', and - unless there is a regulation to the contrary - that consumer agreement is legally required to comply with all of the rules that apply to those one or more 'forms'.

. Only the 'Direct Form' of Mandatory Disclosure Applies to 'Accommodation'

Such a regulation exists here [CPA General Reg 4]:
4. The supply of accommodation, other than time share accommodation, is exempt from the application of sections 21 to 26, 37 to 40 and 44 to 47 of the Act.
Let me explain. Reg 4 excludes the 'internet' [s.37-40], 'remote' [s.44-47] and 'future performance' [s.21-26] forms from application with respect to the subject of this note: 'accommodation' - so it is only when the manner [ie. the how] of the formation of the consumer transaction is "negotiated or concluded in person at a place other than, (a) at the supplier’s place of business, or (b) at a market place, an auction, trade fair, agricultural fair or exhibition" that the 'purchase' of accommodation entails 'mandatory disclosure' duties.

It is important to note that - due to the 'not-mutually exclusive' provisions of CPA s.4 [which must be distinguished from General Reg 4] - it is only when an accommodation consumer agreement is entirely negotiated and concluded either "at the supplier’s place of business, or ... at a market place, an auction, trade fair, agricultural fair or exhibition" that the mandatory disclosure direct-form rules do not apply. In all other cases (which are most of them) they do apply, regardless of General Reg 4. That is, General Reg 4 only means that the specific internet, remote and future-performance mandatory disclosure rules do not operate with respect to accommodation, usually the 'direct' form disclosure rules do apply - this is an oddity unique to the CPA legal design and it needs to be appreciated.

(c) CPA Mandatory-Disclosure As It Can Apply to Accommodation

So, if you've waded through (b) above, you'll know why the CPA can only applies to 'direct form' accommodation [CPA General Reg 4].

These 'direct form' rights include (in the CPA):
. in writing, "delivered to the consumer" and "made in accordance with the prescribed requirements" [CPA s.42];

. no-cause, cooling-off cancellation right "until 10 days after the consumer has received the written copy of the agreement" [CPA s.43(1)];

. one-year cancellation right "if the consumer does not receive a copy of the agreement that meets the requirements under section 42" [CPA s.43(2)].
And, the mandatory-disclosure details include [CPA General Reg 35]:
. signature of the parties,

. identification and contact information for both supplier and consumer [CP Reg 35(1)(1-3)];

. names of those involved in marketing, negotiation and 'concluding' the agreement [CP Reg 35(1)(4-)];

. the date on which and the place where the agreement is entered into [CP Reg 35(1)(5)];

. "fair and accurate description of the goods and services to be supplied to the consumer" [CP Reg 35(1)(6)];.

. "total amount payable by the consumer under the agreement or, if the goods and services are to be supplied during an indefinite period, the amount and frequency of periodic payments" [CP Reg 35(1)(7)]; and

. "terms of payment" [CP Reg 35(1)(8)];

. "the date or dates on which delivery, commencement of performance, ongoing performance and completion of performance are to occur" [CP Reg 35(1)(12)];

. "rights, if any, that the supplier agrees the consumer will have in addition to the rights under the Act and the obligations, if any, by which the supplier agrees to be bound in addition to the obligations under the Act, in relation to cancellations, returns, exchanges and refunds" [CP Reg 35(1)(13)], and

. "(a)ny other restrictions, limitations and conditions that are imposed by the supplier" [CP Reg 35(1)(15)].
In addition, there are verbatim, multi-paragrapgh mandatory consumer 'rights and cautions' required [the 'Your Rights under the Consumer Protection Act, 2002' prose] [CPA Reg 35(2)], of a certain visual font size first-page of the agreement (or referred thereon) [CPA Reg 35(1)(11)].

(d) CPA Mandatory-Disclosure Remedies

The CPA's remedies for mandatory-disclosure breaches are those generally applicable to the CPA, which are explained in Consumer Protection (Ontario) Law - Chapter 7 - General Civil Remedies [CPA ss.93-96].

While these 'general' remedies are distinct from those available for responding to the 'unfair practice' violations, they are quite similar to them. Both sets of remedies are premised on rescission of the consumer contract 'ab initio' (ie. cancellation as though it had never been made) and, where possible, restitution between the parties to achieve that goal. And they include "exemplary or punitive damages or such other relief" [CPA 94(1), 96(1), 100(2-3)]. However there are other differences, and those are all explained in Chapter 7 above.


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Last modified: 14-08-23
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