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Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 2 - Special and Exempt Premises
(01 September 2020)- Overview
- Fully-Exempt Premises
(a) Overview
(b) Tourist Accomodation
(c) Farm Employment Accomodation
(d) Non-profit Housing Co-operative Member Units
(e) Penal Facilities
(f) Hospital, Long-Term Care (previously 'Nursing') Homes, Penal-Related Accomodation, Foster Homes and Related
(g) Emergency Shelters
(h) Exempt Education-Related Accomodation
(i) Business Live-In Employee Accomodation
(j) Owner-shared Accomodation
(k) Joint Business-Agricultural/Residential Accomodation
(l) Short-Term Therapeutic and Rehabilitation Accomodation
(l.1) Long-Term Therapeutic and Rehabilitation Accomodation
(m) Short-Term Respite Care Home
(n) Premises Criminally-Forfeit or Escheated to the Crown
(o) Crown-Owed Premises
(p) Other Prescribed Premises
- Care Homes
(a) Overview
(b) Definitions
(c) Care Home Tenancy Agreements
. Basic Requirements
. Cancellation Rights
. Information Package Before Entering into Tenancy Agreement
. Pre-Obtained Care Home Tenant Notices to Terminate and Agreements to Terminate
. Privacy and Entry Terms
(d) Assignment and Subletting
(e) Termination and Eviction
. Overview
. Termination by Landlord of Fixed Term Tenancy for Rehabilitative or Therapeutic Care
. Pre-Obtained Tenant Notices to Terminate and Agreements to Terminate Where Tenancy for Rehabilitative or Therapeutic Care (Social Housing)
. Termination by Landlord for Demolition, Conversion or Repairs
. "Transferring" and Eviction Where Inappropriate Care Level
. Termination by Tenant
. Death of Tenant
(f) External Care Service Providers
(g) Rent and "Care Service and Meal" Charges
- Mobile Home Parks and Land Lease Communities
(a) Definitions
(b) Overview
(c) Basic Landlord Duties and Prohibitions
. Information Duties to Tenant
. Repair and Maintenance
. Restraint of Trade Prohibited
(d) Tenant's Right to Lease or Sell Home
. Overview
. "Landlord as Agent" Provisions
. Comment re "Landlord as Agent" Provisions
. Landlord Right of First Refusal
. Advertising
. Assignment of Site Lease on Sale
. Rent Increases on Assignment and Subsequent Sale
(e) Termination of Tenancy
(f) Landlord Duties re Mobile or Land Lease Home on Termination
. Overview
. When These Provisions Do (and Do Not) Apply
. Notice to Tenant
. Disposal
. Death of the Tenant/Owner
(g) Rent and Additional Charge Issues
. Overview
. Additional Charges
. Above-Guideline Rent Increase Changes
- Superintendent's Premises
(a) Overview
(b) Termination of Tenancy on Employment Termination
(c) Grounds of Employment Termination Irrelevant
- Homes for Special Care and Developmental Services Facilities
- Post-Secondary Educational Residences
- Social Housing
(a) Overview
(b) SHRA, Federal and Related Housing Program Exemptions
. Definition
. Exemptions
(c) Other Governmental RGI
. Definition
. Exemptions
(d) Privately-Contracted RGI
. Definition
. Exemptions
(e) Rural and Native Rental Housing Program
. Definition
. Exemptions
(f) Suite Meter and Utility Costs Apportionment Rent Reductions
- Mortgage Proceedings
(a) Overview
(b) "Single Family Home" Defined
(c) Mortgagee-as-Landlord Status
. Overview
. Becoming a Landlord by Title Transfer
. Becoming a Landlord by being "Mortgagee-in-Possession"
. Becoming a Landlord by Service of Notice of Termination to Tenant
(d) Rights and Duties of Mortgagee-as-Landlord
. Notice of Change of Landlord to Tenants
. Landlord's Right to Tenancy Details and Inspection
. Landlord's Right to Show "Single Family Home"
(e) Rights and Duties of Tenant
. Overview
. Duty to Pay Rent
. Tenant's Rights Against Mortgagee Not Yet Mortgagee/Landlord
(f) Bad Faith Tenancy
(g) Personal and Purchaser Possession by Mortgagee/Landlord of "Single Family Homes" Premises
. Overview
. Qualifying Occupants
. Notice of Termination
. Additional Documentation Where Purchaser Possession
. Tenant's Right to Earlier Termination
. Application for Termination and Possession
. Court Application Where Bad Faith Termination
(h) Rent Deposits and Mortgage Sales
- Interim Possession of Proposed Condominium by Purchaser Pending Title Transfer
(a) Overview
(b) Duties of Vendor/Landlord During Interim Possession
(c) Rent, Monthly Occupancy Fee and Other Charges
- Leasehold Condominium Corporations
- Board Application to Determine Application of RTA
Note Re: Offences
Many breaches of the Residential Tenancies Act are also prosecutable offences. Readers may want to review Ch.17: "Offences" regarding specific breaches.
1. Overview
The Residential Tenancies Act (RTA) provides for a range of premises which are either partially or entirely exempt from its provisions.
Exempt premises are explained in s.2 below, and include:- Tourist Accomodation
- Farm Employment Accomodation
- Non-profit Housing Co-operative Member units
- Penal Facilities
- Hospital, Rest Homes, Long-Term Care (previously 'Nursing') Homes, Foster Homes and Related
- Emergency Shelters
- Exempt Education-Related Accomodation
- Business Live-In Employee Accomodation
- Owner-shared Accomodation
- Joint Business/Residential Accomodation
- Rehabilitation or Therapeutic Accomodation
- Short-Term Respite Care Home
- Premises Criminally-Forfeit
- Other Prescribed Premises
"Special" (ie. partially-exempt) premises are discussed in ss.3-9 below, and include:- care homes
- mobile home parks and land lease communities
- "superintendent's" premises
- Homes for Special Care Act and developmental services premises
- post-secondary educational residences
- social housing (rent-geared-to-income)
- premises under mortgage proceedings.
2. Fully-Exempt Premises
(a) Overview
The premises listed below are completely exempt from the Residential Tenancies Act [Act s.5]. They are all discussed briefly in turn in separate sub-sections below:- Tourist Accomodation
- Farm Employment Accomodation
- Non-profit Housing Co-operative Member units
- Penal Facilities
- Hospital, Rest Homes, Long-Term Care (previously 'Nursing') Homes, Foster Homes and Related
- Emergency Shelters
- Exempt Education-Related Accomodation
- Business Live-In Employee Accomodation
- Owner-shared Accomodation
- Joint Business/Residential Accomodation
- Rehabilitation or Therapeutic Accomodation
- Short-Term Respite Care Home
- Premises Criminally-Forfeit
- Other Prescribed Premises
Where premises are exempt from the RTA that does not mean that they are completely unregulated in law. If they are still "tenancies" then they will usually be governed by the Commercial Tenancies Act. Otherwise they may be governed by the common law of "licenses", the Innkeepers Act, the common law of contract - and any of numerous statutory laws that relate specifically to the types of premises involved.
The basic concepts of "tenancy" and "license" are discussed briefly in Ch.1, s.2: "Fundamentals: Formation of Tenancy: Licenses Distinguished".
(b) Tourist Accomodation
This exempt category is defined as [Act s.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; Practically such arrangements will be governed by a rough cobbling together of license law, contract law and - in extreme cases - criminal law.
Not that it helps much, but these premises are also likely to be governed by the Innkeepers Act, an antiquated piece of legislation that places the guest at serious risk of having their horse seized as security for non-payment of their bill [Innkeepers Act s.3(2)]. Neighhhh ...
Innkeepers ActCasenote: Matthews v Algoma Timberlakes Corporation (Ont CA, 2010)
In this case the Court of Appeal was faced with the issue of whether the RTA applied to land lease cottages which were used most of the year round for recreational purposes. The court disagreed with earlier reasoning by the Divisional Court that there was a mutual exclusivity between the terms 'recreational' and 'residential' and preferred to set up a mutual exclusion between the terms 'residential' and 'commercial'. Having found recreational use to be 'residential' and thus that the land lease cottages were in fact "rental units" (which definition included "rented residential premises"), the RTA prima facie applied [RTA s.3(1)].
The court then continued to consider whether the premises came under the exemption provisions of s.5(a). It found that this exemption did not apply on the facts as the premises here were occupied on a basis that was more than temporary and more than seasonal, both within each year and given the long-term nature of the leases (20 years, renewal for yearly periods, annual payment of rent rather than seasonal or temporary). Consequently the premises were held to be governed by the RTA. (c) Farm Employment Accomodation
This exempt category is defined as [Act s.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; Such accomodation are typically either in the home of the farmer or more commonly in large dormitory-type residences (usually the case with foreign migrant workers). The common law of licenses - which is essentially unmodified contract law - would have primary application to those situations.
In the rare case where the occupant is given "exclusive possession" of premises then the Commercial Tenancies Act may apply. That law is obscure and reminiscent of our feudal past, so only those interested in making a point of principle would devote the financial resources to addressing it.
(d) Non-profit Housing Co-operative Member Units
This exempt category is defined as [Act s.5(c)]:... living accommodation that is a member unit of a non-profit housing co-operative, except for Part V.1, and except for those provisions in other Parts that are needed to give effect to Part V.1;
"non-profit housing co-operative" means a non-profit housing co-operative under the Co-operative Corporations Act, and “co-operative” has the same meaning; " [Act s.2(1)]; With amendments to the Co-operative Corporations Act and the RTA [the new Part V.1] in effect 01 June 2014, procedures for evicting occupant members of non-profit housing co-operatives were partially integrated with RTA and LTB procedures. Procedures are now bifurcated, with internal co-op corporation procedures dealing with terminating membership and occupancy rights being dealt with at the corporate Board level, and LTB procedures being applied for actual eviction.
It is expressly acknowledged in this new law that non-profit co-op housing situations are not landlord & tenant relationships [Act 94.1(2)], so their inclusion under the RTA regime is a bit of an unnatural marriage. As such, I will not integrate non-profit housing co-op into this primary Residential Tenancies (Ontario) Legal Guide but will instead leave it to a later legal guide on that specific subject.
(e) Penal Facilities
This exempt category is defined as [Act 5(d)]: ... living accommodation occupied by a person for penal or correctional purposes; Such "accomodation" will be governed - to the extent that it is - by federal laws (for penetentiaries) and provincial laws (for jails): Ontario Jails: Ministry of Correctional Services Act
Municipal Jails: Police Services Act
Federal Penitentiaries: Corrections and Conditional Release Act.
Other Federal Prisons: Prisons and Reformatories Act As a practical matter, the general criminal and tort law also has application to such situations. This is a specialized subject beyond the scope of this present Legal Guide.
(f) Hospital, Long-Term Care (previously 'Nursing') Homes, Penal-Related Accomodation, Foster Homes and Related
This broad exempt category is defined as "living accommodation that is subject to" [Act 5(e)]: - the Public Hospitals Act;
- the Private Hospitals Act;
- the Long Term Care Homes Act, 2007;
- the Ministry of Correctional Services Act; and
- the Child, Youth and Family Services Act, 2017
Special provisions of the RTA do however apply to "care homes" that are not exempt as above [see s.3 below].
Each of these varied types of accomodation must be examined in light of their governing statutes.
(g) Emergency Shelters
This exempt category is defined as [Act 5(f)]: .... short-term living accommodation provided as emergency shelter; The legal status of occupants of homeless and protective "shelters" is unclear in law. It will most likely be license law, which is essentially contract law - sprinkled with a good dose of shelter-lenient inclination by the courts.
(h) Exempt Education-Related Accomodation
This exempt category is defined as [Act 5(g)]:... living accommodation provided by an educational institution to its students or staff where,
either one of the following apply:- the living accommodation is provided primarily to persons under the age of majority, (children's accomodation), or
- all major questions related to the living accommodation are decided after consultation with a council or association representing the residents,
and
either one of the following apply:- the living accommodation does not have its own self-contained bathroom and kitchen facilities [licensees: see Ch.1, s.2(b)], or
- it is not intended for year-round occupancy by full-time students or staff and members of their households (not year-round accomodation).
Few education-related premises provide year-round accomodation, and - of those - ones which consult student councils in relation to "all major questions related to the living accommodation" (such as most colleges and universities would) will be RTA-exempt. This is probably the largest single class of RTA-exempt education-related accomodation, though by no means the only.
If education-related accomodation does not fall into this exemption, it is likely partially-subject to the RTA [see s.7: "Post-Secondary Educational Residences", below].
(i) Business Live-In Employee Accomodation
Note:
Categories related to this are s.2(c) ["Farm Employment Accomodation", above] and s.5 "Superintendent's Premises", below]. . General
This exempt category is defined as [Act 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; . Land Lease Community Sites
With Bill 184 [s.1] land lease community sites (which are rental units under the RTA) are exempt from the RTA if "(t)he rental unit is owned by an employer and is provided to an employee, or to an employee and the employee’s spouse, in connection with the employee’s employment", and the tenancy commenced on or after 21 July 2020. This exemption applies to both the employee as the tenant, and the employee and their spouse as joint tenants [RTA 5.2(1)]. This RTA exemption applies until the tenancy is terminated [RTA 5.2(2)] - and even if "the employee ceases to be employed before the tenancy is terminated" or "the employee dies before the tenancy is terminated, provided the employee’s spouse is a tenant of the rental unit" [RTA 5.2(3)].
(j) Owner-shared Accomodation
This exempt category is defined as [Act 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; These situations are fairly common and legally amount to non-tenancy "licence" accomodations [see Ch.1, s.2(b)], where the licencee resides closely with the landlord or their immediate family. While such accomodation are RTA-exempt, they would still be governed by the common law of licence, which is almost identical to the common law of contract.Casenote: Cowie v Bindlish (Div Ct, 2010)
This case involved the s.5(i) full RTA exemption for premises where either kitchen or bathroom facilities are shared with a co-resident landlord or close members of the LL's family. Here the LL moved into the home after occupation of the premises by the tenant, without having advised the tenant of their intention to so so at the commencement of the tenancy. The LL asserted that by that action the tenant's premises no longer fell under RTA jurisdiction. The Divisional Court disagreed, finding that such an interpretation violated the s.3(1) non-waiver provision as it would allow the agreement to be unilaterally altered by the LL. The court held that it was the status of the tenancy at the date it commenced that determined it's jurisdictional status. (k) Joint Business-Agricultural/Residential Accomodation
This exempt category is defined as [Act 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; These are not employment live-in situations, but essentially are combined commercial/residential tenancies under one lease. They will be governed under the Commercial Tenancies Act.
(l) Short-Term Therapeutic and Rehabilitation
Note:
Contrast (l) and (l.1) rehabilitation/therapeutic accomodation with: s.2(f) ["Hospital, Rest Homes, Long Term Care (previously 'Nursing') Homes and Related", above], and s.3 ["Care Homes", below]. This exempt category (TRA) is defined as [Act 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,
(i) 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
(ii) the living accommodation is intended to be provided for no more than a one-year period. Such arrangements are very likely to involve single rooms without exclusive possession, and as such are likely governed by the law of licence [see Ch.1, s.2(b)].Case Note: Smith v. Youthlink Youth Services
In Smith v. Youthlink Youth Services (Div Ct, 2020) [this was upheld at Smith v Youthlink Youth Services (Ont CA, 2022)] the Divisional Court comparatively considered the s.5(k) (short-term) and 2017 s.5.1 (long-term) exemptions from the RTA regarding rehabilitative and therapeutic accomodation. Much of the appellant's case foundered on the limitation that appeals may only be on 'questions of law'. The whole case is germane to anyone handling of a case under either exemption, but the case does support the distinction between the two exemptions as being based on duration of residency:[28] Both s. 5(k) and s. 5.1 exempt occupancy agreements in which rehabilitative and therapeutic services are a component of that relationship. The primary distinction between s. 5(k) and s. 5.1 in exempting rehabilitative and therapeutic services is that s. 5.1 covers occupancy agreements that are longer in term. (l.1) Long-Term Therapeutic and Rehabilitation
(i) Overview
In 2017, the RTA added an exempt category which I refer to as 'long-term' therapeutic and rehabilitation accomodation, this is in addition to the similar category above in (l) "Short-Term Therapeutic and Rehabilitation" [Act 5.1(5)].
Before these 2017 amendments therapeutic and rehabilitation accomodation that was 'long-term' was not exempt from the RTA. That status continues for pre-existing tenancies until terminated under the Act (ie. the new long-term exemption does not apply to tenancies existing at 31 December 2017 and continuing thereafter) [Act 5.1(6)].
This 'long-term' category accomodates "living accommodation provided to a person as part of a program" where the program meets all of the following requirements [Act 5.1(1,2)]:- the program consists of the provision of living accommodation and accompanying services where,
i. the living accommodation is intended to be provided for no more than a four-year period, and
ii. the accompanying services include one or more of the following services, regardless of where and by whom the services are provided:
A. rehabilitative services,
B. therapeutic services,
C. services intended to support employment, or
D. services intended to support life skills development.
- the program is intended to support the occupant of the living accommodation in subsequently obtaining and maintaining more permanent living accommodation.
- all or part of the program is,
i. provided by, or funded under an agreement with,
A. the Crown in right of Canada or in right of Ontario,
B. an agency of the Crown in right of Canada or in right of Ontario,
C. a municipality, or
D. a service manager as defined in the Housing Services Act, 2011,
or
ii. provided or funded by a registered charity within the meaning of the Income Tax Act (Canada).
(ii) Agreement Requirements
The long-term therapeutic and rehabilitation accomodation must be confirmed by a written agreements that meets all the following requirements [Act 5.1(1,3)]:- Right to Apply to the Board for Determination of Application of RTA
The agreement must state that the provider of the living accommodation intends that the living accommodation be exempt from this Act and must also state that the occupant may apply to the Board [see Ch.2, s.12: "Board Application to Determine Application of RTA", below] for a determination of whether this Act applies with respect to the living accommodation;
- Terms of Agreement
The agreement must set out the following:
- the legal name and address of the provider of the living accommodation,
- the maximum period of the occupant’s occupancy of the living accommodation,
- the circumstances under which and the process by which the occupant’s occupancy of the living accommodation may be terminated by the provider of the living accommodation,
- the occupant’s rights and responsibilities in respect of the occupant’s occupancy of the living accommodation,
- the rules that apply to the occupant’s occupancy of the living accommodation,
- the amount of any consideration required to be paid by the occupant for the right to occupy the living accommodation, and
- the amount of any other charges to be paid by the occupant in conjunction with the living accommodation.
- Dispute Resolution Process
The agreement must set out a process to address disputes between the occupant and the provider of the living accommodation which must,
- include a reasonable method by which either party may initiate the process,
- provide for the involvement of an individual not otherwise involved in the dispute, to assist the parties in resolving the dispute, and
- meet such other requirements as may be prescribed.
- Rules and Responsibilities
Unless the information is set out in a separate agreement under subsection (4), the agreement must set out the following information in respect of the program under which the living accommodation is provided to the occupant:
- the occupant’s rights and responsibilities in respect of the occupant’s participation in the program, other than the rights and responsibilities described in subparagraph 2 iv,
- the rules that apply to the occupant’s participation in the program, other than the rules described in subparagraph 2 v,
- the amount of any charges to be paid by the occupant in conjunction with the program, other than the charges referred to in subparagraphs 2 vi and vii,
- the policy of the provider of the living accommodation or the administrator of the program, as applicable, with respect to securing alternate living accommodation for an occupant whose participation in the program or whose occupancy of the living accommodation is terminated, and
- the policy of the provider of the living accommodation or the administrator of the program, as applicable, with respect to readmission into the program.
Where the provider of the accomodation, and "the administrator of the program under which the living accommodation is provided" are different, the above information may be set out in the agreement, as long as the administrator's legal name and address and "such other requirements as may be prescribed" are set out [Act 5.1(4)].
- Other Prescribed Terms
The agreement must meet such other requirements as may be prescribed.
(m) Short-Term Respite Care Home
This exempt category is defined as [Act 5(l)]: ..... living accommodation in a care home occupied by a person for the purpose of receiving short-term respite care; Such arrangements are very likely to involve single rooms without exclusive possession, and as such are likely governed by the law of licence [see Ch.1, s.2(b)].
(n) Premises Criminally-Forfeit or Escheated to the Crown
This exempt category is defined as [Act 5(m)]: ... living accommodation in a residential complex in which the Crown in right of Ontario has an interest if,
(i) the living accommodation or residential complex was forfeited to the Crown in right of Ontario under any Ontario statute or the Criminal Code (Canada),
(ii) 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
(iii) the living accommodation or residential complex is forfeited corporate property to which the Forfeited Corporate Property Act, 2015 applies; These are situations where the rented property has been taken into ownership by the Crown (Ontario government) for being the proceeds of criminal activities, or when the owner has died without a will and without lawful heirs.
(o) Crown-Owed Premises
In the case of Copeland & Soucie v. H.M.Q. (Div Ct, 2014) the court, after engaging in a complex statutory interpretation analysis, held that the Crown as landlord was exempt from the RTA.
(p) Other Prescribed Premises
The Act [s.5(n)] provides cabinet with authority to exempt any other classes of accomodation from the RTA, though to date this authority has not been used.
3. Care Homes
(a) Overview
Roughly, a "care home" is a rental unit where the tenant receives personal care services due to medical disability or old age. Probably the largest single category of these are residents of retirement homes, who are also governed by the Retirement Homes Act.
A new Isthatlegal.ca Retirement Homes Act (Ontario) Legal Guide was published August 2020. It is written in conjunction with this landlord and tenant guide.Note:
Units in many facilities otherwise meeting this definition are directly governed by specific provincial laws, and are exempt from RTA-regulation entirely [see s.2(f) above: "Fully Exempt Premises: Hospital, Long-Term Care (previously 'Nursing') Homes, Penal-Related Accomodation, Foster Homes and Related"]. Readers must determine the particular governance - if any - of their premises in relation to these several statutes. If the premises are not specifically-governed under one of the s.2(f)-listed facilities, then they are likely "care home" premises as set out here. The RTA specifically acknowledges that care home tenancies may arise from arrangements where third parties (typically, a business) lease premises from the landlord and then the third party provides both residential and care services to the tenant [Reg s.1(2)].
Generally, the provisions of the Residential Tenancies Act apply to these [non-s.2(f)] 'care home' tenants except as otherwise provided by sections 139-51, which are the special care home provisions reviewed below in sub-section (c) to (g) of this section [Act s.3(2)].
(b) Definitions
A "care home" is rental unit "that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy" [Act s.2(1); Reg s.1(1)].
"Care services" includes "health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living". These include, but are not limited to, the following [Act s.2(1), Reg s.2(1)]:- nursing care;
- administration and supervision of medication prescribed by a medical doctor;
- assistance with feeding;
- bathing assistance;
- incontinence care;
- dressing assistance;
- assistance with personal hygiene;
- ambulatory assistance;
- personal emergency response services.
Where any of the above-listed services are provided, "care services" also includes any of the following services that are provided [Reg s.2(2)]:- recreational or social activities;
- housekeeping;
- laundry services;
- assistance with transportation.
(c) Care Home Tenancy Agreements
. Basic Requirements
Unlike the case with most tenancy agreements, which may be "written, oral or implied" [Act s.2], tenancy agreements for care home rental units must be in writing [Act s.139(1)]. In addition, care home tenancy agreements must "set out what has been agreed to with respect to care services and meals and the charges for them" [Act s.139(2)]. Where either of these requirements are not met, the tenant may apply to the Landlord and Tenant Board for an abatement of rent [Act s.139(3)].
Form T2: Application About Tenant Rights
. Cancellation Rights
As well, a care home tenancy agreement must contain a statement that "the tenant has the right to consult a third party with respect to the agreement and to cancel the agreement within five days after the agreement has been entered into" [Act s.141(1)]. Such cancellation must be done by written notice to the landlord [Act s.141(2)].
Note that mail service of such a notice is very risky as it is not deemed to be received until the "fifth day after mailing" [Act s.191(3)] [otherwise see Ch.13, s.8: General Board Procedures: Service and Filing of Documents"]. In these situations personal or courier service of the notice may be better.
. Information Package Before Entering into Tenancy Agreement
In addition, before entering into a care home tenancy agreement with a new tenant the landlord must provide the prospective tenant an "information package" containing the following information [Act s.140(1); Reg s.47]:- a list of the different types of accommodation provided and the alternative packages of care services and meals available as part of the total charge;
- the charges for the different types of accommodation and for the alternative packages of care services and meals;
- minimum staffing levels and qualifications of staff;
- details of the emergency response system, if any, or a statement that there is no emergency response system;
- a list and fee schedule of the additional services and meals available from the landlord on a user pay basis;
- internal procedures, if any, for dealing with complaints, including a statement as to whether tenants have any right of appeal from an initial decision, or a statement that there is no internal procedure for dealing with complaints.
Landlords are prohibited from serving any Notices of Rent Increase [see Ch.10] or Notices of Charge Increase [see (g) below] until this information package is given [Act 140(2)].
There is no prescribed LTB form for this information package however the LTB has issued a brochure on care home rules: Rules for Care Homes.
. Pre-Obtained Care Home Tenant Notices to Terminate and Agreements to Terminate
Unlike most tenancies, it is allowable - if certain conditions are met - for a landlord to require a care home tenant to give them a Tenant's Notice of Termination or to agree to an Agreement to Terminate at the time of, or as a condition of, entering into the tenancy agreement ("pre-obtained"). This is a way of attempting to create a truly "term" tenancy which can be enforced by the landlord.
Termination and eviction application procedures relating to pre-obtained tenant Notices of Termination or Agreements to Terminate respecting care home tenancies are explained in sub-section (e) below ["Termination and Eviction"].
. Privacy and Entry Terms
For most tenants there are a limited number of circumstances where a landlord can legally enter their rental unit - and the tenant cannot agree to waive these rules [Act s.26,27; see Ch.3, s.3: "Tenant Rights, Responsibilities and Remedies: Privacy, Entry and Related"].
However, care home tenants may consent - in a written tenancy agreement - to regular entry by the landlord to "check the condition of a tenant" [Act s.142(1)]. This right of entry may however be repudiated "unilaterally" by the tenant at any time by written notice to the landlord [Act s.142(2)].
(d) Assignment and Subletting
Generally, care home rental units are subject to the same rules regarding subletting and assignment as regular tenancies [see Ch.1, s.5: "Fundamentals: Subletting, Assignments and Similar Arrangements"].
However, the law [Act s.143] does allow care home landlords to preserve the nature of their facility as they intend it (typically focussing on the elderly, the handicapped, etc), and to acknowledge limitations that the landlord may have in terms of care service provision. Therefore a landlord may legitimately withhold consent to assignment or subletting "if the effect of the assignment or subletting would be to admit a person to the care home contrary to the admission requirements or guidelines set by the landlord". Necessarily these "requirements or guidelines" must be generally applicable to the facility, and not exercised arbitrarily against individuals for reasons which are discriminatory under the Ontario Human Rights Code, s.2: Accomodation.
(e) Termination and Eviction
. Overview
While care homes are (for the most part) subject to the same general termination and eviction procedures that govern tenancies generally [see Chapters 4-9], there are some specific provisions which apply only to care home tenancies. These are explained here.
Note that where these care home provisions conflict with the procedures applying to general tenancies, the "care home"-specific provisions prevail [Act s.3(2)].
. Termination by Landlord of Fixed Term Tenancy for Rehabilitative or Therapeutic Care
Landlords may establish fixed-terms (durations) for care home tenancies where the sole purpose of the tenancy is "receiving rehabilitative or therapeutic services agreed upon by the tenant and the landlord". Provided that the maximum term that any care home tenant in the facility receiving such services is four years or less [Reg s.48], the landlord may issues Notices of Termination effective at the end of such fixed-term tenancies [Act s.144(1)].
Form N8: Notice to Terminate a Tenancy at the End of the Term
The "notice period" (days between service of the Notice of Termination and the specified "date of termination") specified in such a Notice of Termination is that required for "regular" terminations [Act 144(2); see Ch.4, s.2(d): "Termination Fundamentals: Notices of Termination: Notice Periods for Regular Terminations"], which in the vast majority of cases (including any fixed-term tenancies) will be 60 days [Act s.44(3)(4)]. As well, the "date of termination" must fall at the end of a period or term of the tenancy (as the case may be) [see Ch.1, s.2(e): "Fundamentals: Formation of a Tenancy: Periodic v Term Tenancies"].
. Pre-Obtained Tenant Notices to Terminate and Agreements to Terminate Where Tenancy for Rehabilitative or Therapeutic Care (Social Housing)
The RTA provides for on-going "tenure" for almost all tenancies under it. That is, tenancies "automatically renew" at the end of their term or period [Act s.38] - regardless of any termination date set out in the tenancy agreement [and subject of course to the landlord seeking to terminate and evict for specific authorized reasons or causes: see Ch.5-8]. Landlords in past have attempted to circumvent these "automatic renewal" provisions by requiring the tenant - at the time of, or as a condition of, entering into the tenancy agreement - to give them either a post-dated Tenant's Notice of Termination or an Agreement to Terminate of similar effect. The sought goal is to allow the landlord to evict the tenant based on that Notice or Agreement when the time comes. The "ex parte" (without notice) termination and eviction proceedings that apply in such circumstances are discussed in Ch.4, s.3(d): "Termination Fundamentals: Tenant Terminations and Agreements to Terminate: Pre-Obtained Tenant Notices of Termination and Agreements to Terminate are Void".
While this tactic is prohibited for most tenants [Act s.37(4)(5)], it is allowed for social housing care home tenants if all of the following conditions are met [Reg s.7(1)]:- the rental unit is occupied for the purpose of receiving rehabilitative or therapeutic services agreed upon by the tenant and the landlord;
- the period of occupancy agreed to by the tenant and the landlord (ie. the date of termination specified on the Notice or Agreement) is four years or less from the commencement of the tenancy;
- the tenancy agreement stipulates that the tenancy may be terminated and the tenant evicted when the objectives of the services have been met or will not be met; and
- the unit is subject to an agreement for the provision of housing services between the landlord and a service manager as defined in the Housing Services Act, 2011.
Where the tenant fails to vacate the premises in accordance with the pre-obtained tenant's Notice of Termination or Agreement to Terminate, the landlord may make an ex parte [without notice to the tenant: Act s.77(1)] application to the Board to terminate and evict the tenant [see Ch.4, s.3(e): "Termination Fundamentals: Tenant Terminations and Agreements to Terminate: Landlord's Applications to Terminate and Evict Based on Tenant's Notice to Terminate or Agreements to Terminate"]. Such applications must normally be made to the Board within 30 days after the date of termination specified in the Notice or Agreement [Act s.77(3)].
Further, in the case of a care home where the above conditions have been met, the landlord can accelerate the "date of termination" to be earlier than the date of termination set out in the Notice or Agreement, if the landlord has given Notice to Terminate on the grounds "that the objectives of the services have been met or will not be met" [see (e): "Termination and Eviction", below]. In that case the landlord can specify a date of termination 60 days after serving such a Notice of Termination [Reg 7(2)]. For these purposes [Reg 7(3)], "the objectives of the services will not be met if the tenant has repeatedly and substantially withdrawn from participation in the services."
. Termination by Landlord for Demolition, Conversion or Repairs
Where a landlord issues Notice of Termination to regular tenants for the reasons of demolition, conversion (to a use other than residential premises) or repairs/renovation, a range of responsibilities may be imposed on the landlord. These includes duties to offer alternative accomodation acceptable to the tenant, compensation payments, and the granting to the tenant of a "right of first refusal" to re-rent the premises after the work is done. As well, a tenant receiving such a Notice of Termination has the right to themselves terminate the tenancy on shorter notice. [see Ch.5, s.3: "Regular Landlord Terminations: Demolition, Conversion and Repair/Renovation".]
However, a landlord issuing such a Notice of Termination to a care home tenant is under a duty to "make reasonable efforts to find appropriate alternate accommodation for the tenant" [Act s.146(1)]. Where the care home tenant accepts such alternate accomodation, there is no further duty on the landlord to compensate or "offer the tenant another rental unit acceptable to the tenant" [thus overriding s.52 and 54 which apply to general tenancies] [Act s.146(2)] - however such care home tenants do retain the right of first refusal after repair/renovation [Act s.53].
. "Transferring" and Eviction Where Inappropriate Care Level
Where the needs of a care home tenant change in relation to what the care home provides, the RTA establishes special "transfer" (rather than "termination") applications to the Board. The main difference between "termination" and these "transfer" provisions is that no Notice of Termination requirement applies. The approach seems to be that since these tenants are likely to be vulnerable, their "eviction" (ie. transfer) requires examination of the situation by the Board in any event - so any "Notice of Termination"- equivalent would be redundant.
Specifically, the landlord may make such application where "the tenant requires a level of care that the landlord is not able to provide" [Act s.148(1)]. However no such Order may be issued by the Board for this reason unless it is satisfied that both of the following conditions are met [Act s.148(2)]:- appropriate alternate accommodation is available for the tenant; and
- the level of care that the landlord is able to provide, when combined with the community based services provided to the tenant in the care home, cannot meet the tenant's care needs.
As well, a landlord may make application to the Board for an Order "transferring" and evicting a care home tenant where "the tenant no longer requires the level of care provided by the landlord" [Act s.148(1)]. This "includes circumstances where the tenant has repeatedly and substantially withdrawn from participation in some or all of the care services provided by the landlord that are set out in the tenancy agreement, and the tenant is not receiving substantially equivalent community based services" [Reg s.49].
Form L7: Application To Transfer a Care Home Tenant
In the event of the tenant disputing such application, the involvement of a Board mediator is mandatory [Act s.148(3)] - and the Rules extend this to Board mediation is required in all care home transfers [R13.2][though this does not mean that any mediated settlement is going to be subject to the s.78 ex parte application on breach of mediated settlements provisions as per Ch.8, s.3]. The Board may dismiss the landlord's application if the landlord fails to participate in the mediation [Act s.148(4)].
. Termination by Tenant
A care home tenant may terminate a tenancy on 30 days notice, though - unlike regular tenant terminations - there is no duty that the date of termination be on the last day of a period or term of the tenancy [Act s.145(1)].
Form N9: Tenant's Notice to Terminate the Tenancy
Additionally, a tenant who has served a Notice of Termination as above may terminate "the provision of care services and meals" on ten days notice to the landlord [Act s.145(2), after which the tenant has no further liability for such expenses [Act s.145(3)]. The date of termination for these services need not correspond to the main date of termination.
Where a tenant fails to vacate the premises in accordance with their own Notice of Termination, the landlord may apply ex parte (without notice) to the Board for Orders of termination and eviction [see Ch.4, s.3(e): "Termination Fundamentals: Tenant Terminations and Agreements to Terminate: Ex Parte Applications"].
. Death of Tenant
The law generally governing termination and death of a tenant is covered in Ch.4, s.1(d): "Termination Fundamentals: Overview: Death of the Tenant".
Additionally, liability for "care services and meals" of the estate of a deceased tenant ends 10 days after death [Act s.145(4)], without the requirement of any notice.
(f) External Care Service Providers
Recall that it is an integral aspect of a care home tenancy that the rental unit "is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy" [Act s.2(1); Reg s.1(1)]. Such tenancy agreements usually provide for specific care services to be provided by the landlord.
However, care home tenants are free to contract for additional (additional to the ones contracted for with the landlord) care services from anyone. Landlords are prohibited from interfering with the tenant obtaining or receiving such additional care services [Act s.147]. These are essentially anti-monopoly provisions.
(g) Rent and "Care Service and Meal" Charges
Care homes are generally subject to all the main provisions of the RTA set out in this Legal Guide - including the rent control provisions [Act s.149; see Chapters 10-12] - although some special "care home"-specific provisions (following) apply over the general RTA provisions in the event of conflict [Act s.3(2)].
Assuming proper landlord compliance with the "information package" duties [Act s.140; see s.2(c) above] and any Notice of Charge Increase duties (below), additional non-rent charges for "care services and meals" are an exception to the general prohibition against "additional (non-rent) charges" set out in the RTA [Act s.134; see Ch.10, s.5: "Rent Fundamentals: Non-Rent Charges and Security Deposits"] [Act s.151].
However, like the situation with normal rent increases, no increase in charges for "care service or meals" may be made unless the landlord gives the care home tenant a proper Notice of Increased Charges at least 90 days before the increase [Act s.150(1)].
The Notice of Increased Charge must be in the Board-approved form and "shall set out the landlord's intention to increase the charge and the new charges for care services and meals" [Act s.150(2)].
Form N3: Notice to Increase the Rent and.or Charges for Care Home Services and Meals
Service of an improper Form N3 voids the landlord's right to charge the increase based on that Notice, subject to re-issuance of a proper one [Act s.150(3)].
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