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Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 5 - Regular Landlord Terminations
(01 September 2020)Caution
- Overview
- Personal and Purchaser Possession
(a) Overview
(b) Termination Criteria
(b.1) Corporate Landlords
(c) Notice Period
(d) Tenant's Right to Earlier Termination
(d.1) Compensation or Alternate Accomodation Where Personal and Purchaser Possession Termination
(d.2) Failure to Pay Termination Compensation Bars Eviction
(e) Notice of Termination Barred Where Severance or Subdivision
(f) Notice of Termination Barred Where Condominium Conversion
(g) Eviction Barred Where Certain Co-ownership Arrangements
(h) Evidence
- Demolition, Conversion and Repair/Renovation
(a) Overview
(b) Notice of Termination
(c) Tenant's Right to Earlier Termination
(d) Tenant's Right of First Refusal After Repair/Renovation
. Overview
. Preserving the Right of First Refusal
. Rent on Re-Occupation
(e) Compensation/Alternative Accomodation on Voluntary Repair/Renovation
(f) Compensation/Alternative Accomodation on "Conversion"
(g) Compensation/Alternative Accomodation on Demolition
(h) Compensation/Alternative Accomodation on Downsizing of Residential Complex and Subsequent Termination for Demolition, Conversion or Repair/Renovation
(i) Comment re "Compensation" and "Alternative Accomodation" Provisions
(j) Applications to Terminate and Evict for Demolition, Conversion and Repair/Renovation
. Overview
. Application Criteria
. Application Evidence
- Former Tenant's Application Where Bad Faith Termination or Denial of Right of First Refusal for Personal Possession, Purchaser Possession or Demolition/Conversion/Repair
(a) Background
(b) Application for Determination
(c) Remedial Orders
(d) Evidence Presumptions for Personal Possession Termination
- Refund of Compensation on Board Refusal to Terminate and Evict
- Persistent Failure to Pay Rent on Time
(a) Overview
(b) Notice Period
(c) Application Evidence
(d) Interpretation Issue
- Ineligibility for Social Housing
- Employee/Tenant Employment Terminated
(a) Overview
(b) Notice Period
(c) Grounds of Employment Termination
- Condominium Purchase Fall-Through
(a) Overview
(b) Notice Period
Caution
Readers are cautioned that whenever they are dealing with an actual termination and eviction proceeding that it is important to review this Legal Guide thoroughly. For instance, this chapter only deals with what are called "regular terminations" - which give a date of termination at the end of a period or term of the tenancy. Basic issues and concepts involved in such proceedings are covered in Ch.4: "Termination Fundamentals". Reading this chapter alone would ignore the basic law that applies to all terminations and evictions. As well, other types of termination and eviction proceedings are discussed in Ch.6: "Early Termination for Cause", Ch.7: "Non-Payment of Rent Termination", and Ch.8: "Other Termination Procedures". You must determine if they are relevant to your proceeding or not.
Further, anyone defending termination and eviction proceedings before the Board would be remiss if they did not also review Ch.9: "Termination Defences", and Chapters 13 and 14 to understand basic procedural aspects of handling a case before the Board, such as service of documents, disclosure of evidence, basic evidence rules, basic hearing procedure, etc.
One never knows what other issues can crop up in a case. Anyone using this Legal Guide for important things should devote the time and effort required to appreciate the law involved in their situation and the complexities that it can give rise to.
Note Re: Special and Exempt Premises:
Some residential rental premises - such as care homes, mobile home parks, land lease communities, student accomodation, superintendent's premises, social housing, premises under mortgage proceedings - and others - may be exempt from all or part of the Residential Tenancies Act, or may be subject to special RTA provisions. Readers may want to review Ch.2: "Special and Exempt Premises" to check if this is the case for their specific premises.
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
This chapter explains what I call "regular terminations" by a landlord (and related application procedures). These give a date of termination at the end of a period or term of the tenancy (as applicable) [see Ch.1, s.2(e): Fundamentals: Periodic v Term Tenancies" and Ch.4, s.2(d): "Termination Fundamentals: Notices of Termination: Notice Periods for "Regular Terminations"].
As is explained in Ch.4, all landlord terminations (unlike tenant-initiated terminations) must be based on some specific "reason" or "cause". The available reasons which can justify a "regular termination" tend to be things related to external circumstances or to the landlord's situation. "Regular terminations" are distinct from "early terminations for cause", which can be initiated by a landlord at any time in the course of a tenancy - and which tend to be based on allegations of bad behaviour of the tenant or occupants of the rental unit.
The specific reasons for termination and eviction proceedings discussed in this chapter include:- personal possession by the landlord;
- purchaser personal possession (when the property is sold);
- demolition, repair or conversion of the premises (to a use other than residential premises);
- persistent failure to pay rent on time;
- ineligibility for social housing;
- employmee/tenant terminated;
- condominium purchase falling through.
Also covered here are remedial Board application procedures available to former tenants who have moved out based on "bad faith' termination reasons given by landlords. These arise in this context due to the fact that most of the 'causes' advanced for 'regular' terminations involve 'landlord reasons', which creates a motivation on the part of unscrupulous landlords to lie (thus 'bad faith') about the basis of their proceeding.
2. Personal and Purchaser Possession
(a) Overview
The Residential Tenancies Act allows limited "regular" termination rights to landlords for "personal possession", and new purchasers of the rental unit (for "purchaser personal possession") - which may be exercised at the end of a period or term (as the case may be).
Note:
These provisions may be viewed as exceptions to the common law rule that tenancies "run with the land" [Act 18], although that rule only applied to tenancies still 'running' (ie. still with time left on their term). Because these provisions are only operative with contractual month-to-month tenancies or statutory monthly tenancies [renewing as month-to-month after the term has expired: see Ch.1, s.2(f)], and not with tenancies still with time to run in their term, then technically the effect of the 'runs with the land' is still preserved. Further, the "purchaser personal possession" provisions allow for termination (ie. Notice of Termination to be issued) and eviction proceedings to be commenced by the "old" landlord (on behalf of the "new" landlord) prior to title transfer, as the provisions become available on the signing of an agreement of purchase and sale - which is usually well before the actual title transfer.
Of course, once the title transfer is complete the new owner becomes the landlord and can use the "personal possession" provisions directly (assuming they are otherwise available to them) - but having the process initiated by the previous owner expedites possession.
Note that the "purchaser personal possession" provisions apply to condominium owner/landlords and purchasers as well [Act s.49(2)], with some exceptions [see (f) below].
Also note that tenants receiving bad faith "personal possession" or "purchaser personal possession" Notices of Termination have recourse to compensatory applications if they are thereby led to move from the premises [see s.4, below].
The Board's perspective on the interpretation and application of the "personal use"/"purchaser use" provisions are set out in Interpretation Guideline 12, linked below. Persons involved in such proceedings are well advised to review this Guideline carefully. The Guideline is especially interesting for its discussion of "personal use" law as it relates to corporate landlords, shareholders of corporate landlords and co-owning landlords:
Interpretation Guideline 12: Eviction for Personal Use
(b) Termination Criteria
A landlord may terminate a tenancy by regular Notice of Termination:- on their own behalf, that of certain family members or their caregivers, for a period of at least one year, ["personal possession"]; or
- on behalf of the purchaser of a residential complex ["purchaser personal possession"] but only if it has three or fewer rental units in it
if they "in good faith" require possession of the rental unit for residential occupation by a qualified occupant (see below) [Act s.48(1), 49(1)].
N12: Notice to Terminate at End of Term for Landlord's or Purchaser's Own Use
A "residential complex" is a building or related group of buildings, a mobile home park or land lease community which contain one or more rental units: Act s.2(1). Therefore "purchaser possession" terminations may be exercised over single rental units, or as many as three related units.
The qualifying occupants are (as the case may be):- the landlord or purchaser,
- the spouse of the landlord or purchaser,
- a child or parent of the landlord, purchaser or their spouse,
- a caregiver to any of the above who resides in the same residential complex [Act s.2 "residential complex", s.48(1)(d), 49(1)(d)].
For the above purposes, a "spouse": Act s.2(1)
... means a person,
(a) to whom the person is married, or
(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act [such agreements address division of property, support obligations and child-rearing before and after separation]. (b.1) Corporate Landlords
After much controversy where corporate landlords tried to (and did) take advantage of these provisions by arguing that the corporate holding of the property was only a technicality (typically by a small, closely-held corporation), and that the shareholders and/or directors were in the same position as an individual property owner, the law was changed in 2017. Now, at least with respect the 'personal possession' terminations [Act s.48] (but not 'purchaser possession' terminations), the law was amended to [Act 48(5)]:
48(5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless,
(a) the rental unit is owned in whole or in part by an individual; and
(b) the landlord is an individual. That still leaves the 'purchaser possession' [Act s.49] provisions open for such 'corporate' interpretations. I repeat that case law on the issue as it had developed:
Case Note:
Slapsys (1406393 Ontario Inc) v Abrams (Ont CA, 2010)
This was a landlord personal possession case where the 'landlord' purporting to terminate the tenancy was in fact the sole shareholder of the landlord corporation. The court upheld the Divisional Court's finding that such evictions were allowable, on a case by case basis, under RTA s.202(a): RTA s.202
In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; .... The court also noted that the definition of 'landlord' in RTA s.2 includes (in the alternative): "or any other person who permits occupancy of a rental unit" - which could include the sole shareholder of a corporate landlord.
While the RTA s.202 argument appears superficially plausible, in my opinion the appeal to the definition of landlord is not. Clause (a) of the definition of "landlord" in RTA s.2 that the court relies on clearly sets out that a landlord is either the owner or the one allowing occupancy (the conjunction "or" is expressly used). In other words, there can only be one landlord at any given time under that clause. The reasoning the court uses here allows landlords to shift back and forth between their personal and corporate 'forms' when it suits them: ie. a corporation for liability limitation but a natural person when they want to evict. I doubt that's the sort of 'good faith' double-dealing that RTA s.202 is intended to support. Case Note:
Saleh v. Bedford Properties and Estates Ltd. (Div Ct, 2012)
In this case the Divisional Court relied on Slapsys to justify termination and eviction by a corporate landlord for possession by the elderly mother of the corporation's principal:Section 2(a) of the Residential Tenancies Act defines landlord to include a person permitting occupancy. Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII), establishes for the purposes of the Residential Tenancies Act that “landlord” includes the sole shareholder of a corporate landlord. Section 48(1)(c) specifically includes the parent of a landlord as a person for whom the landlord may claim occupancy. Case Note:
In York Region Condominium Corporation No. 639 v. Lee (Div Ct, 2013), another corporate personal possession case, a condominium corporation wished to obtain possession of a unit previously occupied by it's on-site superintendent. For several years the unit had been rented out privately by the condo corporation but it now wished to return to the previous superintendent arrangement. Interestingly, the landlord relied on the s.48(1)(d) 'care-provider' category of anticipated occupant ["a person who ... will provide care services to the landlord"].
The Board reviewed the leading case of Slapsys (considered above) and held that it only allowed corporation possession in the case of small closely-held corporations, and it also held that 'care services' referred to personal health care services rather than the type of property management service involved here. The court however disagreed, holding that Slapsys required a more contextual approach to the facts of each case and a consideration of the underlying purposes of the legislation involved (here the RTA and the Condominium Act). The court focussed in particular on the condo corporation's "duty to provide services for the orderly control, management and administration of the common elements on behalf of all of the owners".
On the general issue of a corporation having a right to 'possess' the court stated significantly that:[25] The apparent reason why it is sometimes considered that section 48 (1) cannot apply to corporations is because corporations, being entities created pursuant to statute without any physical mass, do not have the capacity to occupy a rental unit in the same manner as a natural person. However, it is not necessary that a corporation have the same characteristics as a natural person in order to rely on section 48 (1). Rather, a corporation can occupy a rental unit in the same way that it does everything, namely, through the actions of its officers, directors, employees and other agents. If a corporation can occupy a rental unit for the purpose of maintaining or operating an office, store, factory, warehouse and other kinds of realty, it must surely also be able to occupy a rental unit for the purpose of residential occupation incidental to its status as a landlord.
[26] In the context of this appeal, it is my view that when a corporation that is the landlord of a building occupies a rental unit for the purpose of engaging and requiring one or more natural persons to reside in the unit because on-site residency is reasonably incidental to their functions on behalf of the corporation, the residential occupation of those natural persons is also that of the corporation. In such circumstances it is open to the landlord to invoke section 48 (1) to attempt to regain possession of the unit for that purpose. The result appears to be that the court would endorse the corporate landlord in terminating under RTA 48(1)(a) [landlord possession] without having recourse (as it did here) to 48(1)(d) [care service provider]. The court however glosses over the care service issue, despite it apparently being the ground advanced by the landlord and considered by the Board. The RTA expressly defines "care services" in therapeutic terms: "health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living". The most generous interpretation that can be made in justification of the court's allowing the landlord's application is that it implicitly relied on a single provision in the General Regulation that expanded that definition [Reg s.2(1)9] to include "(p)ersonal emergency response services", since the emergency-reporting role of a building superintendent figured heavily in the materials filed by the landlord before the Board. (c) Notice Period
The notice period for this type of termination is no less than 60 days, and the date of termination must fall at the end of a period or term, as the case may be [Act s.48(2),49(3)].
(d) Tenant's Right to Earlier Termination
The tenant receiving such a notice may opt for any (specified) earlier termination date, on ten days notice to the landlord [Act s.48(3)(4), 49(4)(5)].
N9: Tenant's Notice to Terminate the Tenancy
Essentially this allows the tenant the convenience of moving out earlier when they find a new place.
(d.1) Compensation or Alternate Accomodation Where Personal and Purchaser Possession Termination
Similar to other terminations for 'demolition, conversion and repair/renovation' (below), the RTA was amended in 2017 to require that any landlord terminating a tenancy for personal possession "shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant" [Act 48.1]. Such compensation is due by the termination date [Act 55.1].
With Bill 184 [s.5], this one month's rent compensation or alternative accomodation entitlement was extended to when a landlord gives "the tenant a notice of termination of the tenancy on behalf of a purchaser" [both to 'regular' tenants under RTA 49(1), and condo tenants under RTA 49(2)], but only on or after 21 July 2020 [RTA 49.1(1)]. This obligation is one of the original landlord, and not of the purchaser (ie. it does not 'run with the land') [RTA 49.1(2)]. Such compensation is due by the termination date [Act 55.1; Bill 184].
(d.2) Failure to Pay Termination Compensation Bars Eviction
Further, the Board may not issue an eviction order on such an application unless the landlord has complied with any applicable "compensation" or "alternative accomodation" duties they may face under any of the circumstances explained above [in (d.1)], being [Act s.83(4)]:- compensation/alternative accomodation on "personal possession" [Act s.48.1];
- compensation/alternative accomodation on "purchaser possession" [Act s.49.1].
(e) Notice of Termination Barred Where Severance or Subdivision
The "personal possession" (above) and "purchaser possession" (above) termination provisions are barred where the rental unit - as a whole - is made into a separately conveyable property by either by a s.53 Planning Act (committee of adjustment) severance consent, or a s.51 Planning Act subdivision plan. In such cases the landlord is barred from giving personal or purchaser possession notice to anyone who was a tenant "at the time of the consent or approval" (hereafter: "protected tenants") [Act s.56].
The policy purpose apparently behind this is that the act of severance or sub-division evidences a commercial intention inconsistent with the limited purpose of the personal and purchaser possession provisions. Note however that once the "protected tenant" moves out, then the regular personal and purchaser possession rules get re-instated.
(f) Notice of Termination Barred Where Condominium Conversion
Similarly, where the rental unit is in property subject to a "registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998", then personal and purchaser possession termination is also barred against the tenant who held possession at the date of the registration [Act s.51(1)]. The same restriction applies to rental unit property which is both a "proposed unit" [ie. pending registration] under the Condominium Act, 1998 and is subject to an agreement of purchase and sale conditional on the registration, barring such notice being issued against the tenant who held possession at the date of the agreement being entered into [Act s.51(2)]. These also are "protected tenants" under the personal and purchaser possession termination provisions.
These bars on personal and purchaser possession termination however do not apply to residential complexes which were entirely unrented prior to 10 July 1986 and where the condo registration was made within two years after the first rental in that complex [Act s.51(3)]. In other words, such units are given 'grand-parented' immunity from the personal and purchaser possession termination bar.
Further, assignees of the tenancy [see Ch.1, s.5(d): Fundamentals: Subletting, Assignments and Similar Arrangements: Assignments and Related Procedures"] are not "protected tenants" under this prohibition: it only applies to the original tenant in possession at the date of the condo registration or agreement of purchase and sale, as the case may be [Act s.51(4)].
The policy purpose apparently behind this is similar to that relating to severance or sub-division. The condo conversion evidences a commercial intention inconsistent with the limited 'personal' purpose of the personal and purchaser possession provisions. Note again that once the "protected tenant" moves out the regular personal and purchaser possession rules get re-instated.
In a further effort to preserve a tenant's tenure in condominium conversion circumstances, such 'protected' tenants also have a "right of first refusal" to purchase the "new" (or proposed) condo conversion unit. If the landlord receives an acceptable offer of purchase and sale for the unit from a third party then they are obliged to present it to the "protected tenant" and wait at least 72 hours before accepting the third party offer. If the tenant in that time can match the offer as to price and 'terms and conditions' then they can purchase the unit in preference to the offeror [Act s.51(5)(6)]. The right of first refusal however does not apply to purchases of more than one unit, or where the unit was previously sold as an individual condo [Act s.51(7)].
(g) Eviction Barred Where Certain Co-ownership Arrangements
Another situation where a landlord's "commercial" intention is afforded less weight than the tenant's right of tenure is that of certain forms of "co-ownership" rights-of-residency that have evolved as an alternative to condominium ownership forms. As is explained in Interpretation Guideline 12: "Eviction for Personal Use, Demolition, Repairs and Conversion", individual unit rights-of-residency are marketed within corporate or multi-party common ownerships of multi-unit residential buildings. The "landlord" owner's right to reside within the unit is contractual, stemming from a shareholder or similar agreement amongst all the co-owners. Such arrangements are often held for speculation and investment purposes only.
The Board is prohibited from ordering termination and eviction of tenants in such units unless either of the following two conditions are met [Act s.72(2)]:- the building in which the unit is contained has four or fewer residential units; or
- the unit has previously been occupied by either the landlord, their spouse, a child or parent of either of them - or a caregiver to any of them.
(h) Evidence
No application to the Board to terminate and evict on the basis of a "personal possession" (for a period of at least one year) or "purchaser possession" Notice of Termination will be granted unless the landlord has "filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use" [Act s.72(1)].
3. Demolition, Conversion and Repair/Renovation
(a) Overview
"Regular" termination at the end of period or term (as the case may be) is available to the landlord - under some conditions - where possession is sought for purposes of demolition, conversion (to a use other than residential premises), and "repairs or renovation" extensive enough to require vacant possession.
The RTA imposes a number of (sometimes quite complex) compensation and "alternative accomodation" requirements when these reasons for termination are exercised by the landlord's issuance of a Notice of Termination. As well, Board Orders for termination and eviction are not allowed for these causes without proof that the required compensation has been paid, and substantial supporting evidence supporting the good faith of the termination.
Also available to a tenant receiving such a Notice of Termination are "early termination" provisions, rights of first refusal to re-enter any repaired/renovated unit, and compensatory applications if they are forced to move from the premises in response to a bad faith termination [see s.4, below].
(b) Notice of Termination
The landlord may issue Notice of Termination at the end of period or term (as the case may be) [see Ch.1, s.2(e): Fundamentals: Periodic v Term Tenancies" and Ch.4, s.2(d): "Termination Fundamentals: Notices of Termination: Regular Terminations"] if vacant possession is required for [Act s.50(1)]:- demolition;
- conversion "to use for a purpose other than residential premises" (hereafter "conversion");
Note:
This provision does not justify termination for 'conversion' of the premises to private "non-rental" residential premises. Therefore, 'taking it private' does not by itself justify a termination under s.50. This makes sense given the limited range of the 'personal possession' provisions reviewed above.
- "repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit" (hereafter "repair/renovation").
The notice period for these types of termination is no less than 120 days, and the date of termination must fall at the end of a period or term, as the case may be [Act s.50(2)].
Notice of termination for "repair/renovation" must also advise the tenant of their right of first refusal after the repair/renovation is completed, and how to exercise that right [see sub-sec.(d): "Right of First Refusal", below] [Act s.50(3)]. This advisory is written into the mandatory RTA form used for such terminations.
N13: Notice to Terminate at End of Term for Conversion, Demolition or Repairs
(c) Tenant's Right to Earlier Termination
A tenant receiving such a Notice of Termination may opt for any (specified) earlier termination date, on ten days notice to the landlord [Act s.50(4)(5)].
N9: Tenant's Notice to Terminate the Tenancy
Essentially this allows the tenant the convenience of moving out earlier as soon as they find a new place.
(d) Tenant's Right of First Refusal After Repair/Renovation
. Overview
A tenant served with a Notice of Termination for repair/renovation has the "right of first refusal" of the rental unit when the work is completed (ie. they get to rent it ahead of anyone else if they want) [Act s.53(1)].
Note that a landlord's failure to comply with these duties may be a prosecutable offence [see Ch.17, s.2(f): "Offences: Full Mens Rea Offences: Denial of Right of First Refusal"].
. Preserving the Right of First Refusal
This right is "preserved" by the tenant giving the landlord a written notice - before they vacate the rental unit - that they want the right [Act s.53 2)]: eg. "Pursuant to s.53 of the Residential Tenancies Act, I (... name ...) want the right of first refusal to re-occupy the unit at (..... address, city ......) when the repair/renovations on the rental unit are completed."
Signed and Dated
(* keep copies for yourself) To preserve this right, the tenant must also keep the landlord informed by written notice of any changes of address [Act s.53(4)].
. Rent on Re-Occupation
The rent on re-occupation of the rental unit shall be the same as the landlord could have lawfully charged if there had been no absence of the tenant [Act s.53(3)].
This is an important exception to the normal "vacancy decontrol" rule, which otherwise would have allowed the landlord to charge market rent on re-letting the premises after the work was completed [see Ch.10, s.3(c)]: "Rent Fundamentals: Guideline Rent Increases: Occupancy Control (or "Vacancy De-Control")"]. This means that the rent may only be increased by normal annual "guideline" increases and by any other Board-authorized or party-agreed increases [see Chs.11-12].
(e) Compensation/Alternative Accomodation on Voluntary Repair/Renovation
. Residential Complex with Five or More Units
Where a landlord issues "voluntary" (ie. not in response to legal requirements or municipal work orders) Notice of Termination for repair/renovation in larger buildings (five or more residential units), then they have certain duties to the effected tenants, as explained here.
First, where the tenant does not preserve their right of first refusal [see (d) "Right of First Refusal", above], they are entitled either to be offered another acceptable rental unit, or three month's rent compensation from the landlord [Act s.54(1)]. However, where a tenant does preserve their right of first refusal, they are entitled to rent compensation for either three months, or for the length of the repair/renovation work (whichever is less) [Act s.54(2)].
Such compensation is due by the termination date [Act 55.1].
Note that a landlord's failure to comply with these duties may be a prosecutable offence [see Ch.17, s.2(g): "Offences: Full Mens Rea Offences: Failure to Pay Termination Compensation or Offer Alternative Compensation on Certain Terminations"].
. Residential Complex with Less than Five Units
With Bill 184 [s.7], the RTA was amended effective 21 July 2020 to include smaller residential complexes in the compensation/alternative accomodation scheme.
Where a landlord issues "voluntary" (ie. not in response to legal requirements or municipal work orders) Notice of Termination for repair/renovation in smaller buildings (less than five residential units), then they have certain duties to the effected tenants, as explained here.
First, where the tenant does not preserve their right of first refusal [see (d) "Right of First Refusal", above], they are entitled either to be offered another acceptable rental unit, or one month's rent compensation from the landlord [Act s.54(3)]. However, where a tenant does preserve their right of first refusal, they are entitled to rent compensation for one month, or for the length of the repair/renovation work (whichever is less) [Act s.54(4)].
Such compensation is due by the termination date [Act 55.1].
These smaller residential complexes repair/renovation compensation provisions do not apply if the compensation rule explained in "Compensation/Alternative Accomodation on Downsizing of Residential Complex and Subsequent Termination for Demolition, Conversion or Repair/Renovation", applies [see (h) below].
Note that a landlord's failure to comply with these duties may be a prosecutable offence [see Ch.17, s.2(g): "Offences: Full Mens Rea Offences: Failure to Pay Termination Compensation or Offer Alternative Compensation on Certain Terminations"].
(f) Compensation/Alternative Accomodation on "Conversion"
Where a tenant who resides in a residential complex containing at least five rental units receives a Notice of Termination for the reason of "conversion" of the premises to non-residential use, they are entitled to be offered another acceptable rental unit or three month's rent compensation from the landlord [Act s.52(1)]. Such compensation is due by the termination date [Act 55.1].
With Bill 184 [s.6], where the residential complex has fewer than five units and the landlord gives notice of termination for conversion to non-residential use, on or after 21 July 2020 the tenant is entitled to one month's compensation or "another rental unit acceptable to the tenant" [RTA 52(2)].
Note that a landlord's failure to comply with these duties may be a prosecutable offence [see Ch.17, s.2(g): "Offences: Full Mens Rea Offences: Failure to Pay Termination Compensation or Offer Alternative Compensation on Certain Terminations"].
(g) Compensation/Alternative Accomodation on Demolition
Where a tenant who resides in a residential complex containing at least five rental units receives a Notice of Termination for the reason of demolition of the premises, they are entitled to be offered another acceptable rental unit or three month's rent compensation from the landlord [RTA 52(1)]. Such compensation is due by the termination date [Act 55.1].
With Bill 184 [s.6], where the residential complex has fewer than five units and the landlord gives notice of termination for demolition, on or after 21 July 2020 the tenant is entitled to one month's compensation or "another rental unit acceptable to the tenant" [RTA 52(2)].
However the landlord's duty of substitution or compensation does not apply where "the demolition ... was ... ordered to be carried out under the authority of any other Act." (ie. involuntary on the part of the landlord) [Act s.52(1,2)].
Note that a landlord's failure to comply with these duties may be a prosecutable offence [see Ch.17, s.2(g): "Offences: Full Mens Rea Offences: Failure to Pay Termination Compensation or Offer Alternative Compensation on Certain Terminations"].
(h) Compensation/Alternative Accomodation on Downsizing of Residential Complex and Subsequent Termination for Demolition, Conversion or Repair/Renovation
Where a tenant's residential complex of five or more residential units is reduced to four or less by the operation of a legal severance (authorized by the local committee of adjustment or similar body), and where the tenant - within two years after the severance - is given a Notice of Termination for any of demolition, conversion or repair/renovation, then the tenant is entitled to either three months rent compensation - or the offer of a new (acceptable) unit - at the landlord's option [Act s.55]. Such compensation is due by the termination date [Act 55.1].
Note that a landlord's failure to comply with these duties (that is, to offer the tenant the required options) may be a prosecutable offence [see Ch.17, s.2(g): "Offences: Full Mens Rea Offences: Failure to Pay Termination Compensation or Offer Alternative Compensation on Certain Terminations"].
(i) Comment re "Compensation" and "Alternative Accomodation" Provisions
Compliance with an applicable "compensation" or "alternative accomodation" provisions is a pre-condition of the landlord obtaining a Board order evicting the tenant for the reason claimed. See the immediately following discussion [(j): "Applications to Terminate and Evict for Demolition, Conversion and Repair/Renovation"].
The several 'compensation' provisions discussed can be triggered in circumstances which are not mutually exclusive (ie. two or more may apply to the same facts), so a potential for conflict arises. As compensation is the tenant's right, in such cases [and assuming no landlord's option as in (h) above] it would make sense that the tenant could demand the compensation provision most advantageous to them.
Case Note:
Marineland of Canada Inc. v. Olsen (Div Ct, 2011)
In this case the Divisional Court clarified several points of law relating to such compensation, including that:- tenants owed monies under such statutory compensation provisions as these were not restricted in their remedies to blocking the landlord's termination and eviction on non-payment of the compensation. Tenants could also apply under RTA s.135 for recovery of such funds: see Ch.12, s.7 [para 9].
- a landlord's duty to pay the tenant compensation under this provision, once that duty arose, was not vitiated by a later termination and eviction for non-payment of rent [para 11];
- where an order for compensation to a tenant could be made by the Board, the Board could also set-off the amount of any rent arrears order that it could also make in the same proceeding [para 17]
- for purposes of recovery of such compensation, the one-year limitation for the making of s.135 applications to recover starts to count ("crystallizes") when the tenant leaves the premises [para 15].
(j) Applications to Terminate and Evict for Demolition, Conversion and Repair/Renovation
. Overview
The landlord may apply to the Board for orders terminating and evicting a tenant for demolition, conversion or repair/renovation.
. Application Criteria
However, the Board cannot make such orders unless satisfied with regards to [Act s.73(1)]:- Good Faith
That the landlord intends in good faith to carry out the purpose of the termination;
- Necessary and Available Permissions
The landlord has either:
- "obtained all necessary permits or other authority that may be required to carry out the activity", or
- "taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity ... if it is not possible to obtain the permits or other authority until the rental unit is vacant."
. Failure to Pay Termination Compensation
Further, the Board may not issue an eviction order on such an application unless the landlord has complied with any applicable "compensation" or "alternative accomodation" duties they may face under any of the circumstances explained above [sub-secs.(e-h)], being [Act s.83(4)(5)]:- compensation/alternative accomodation on "conversion" [Act s.52];
- compensation/alternative accomodation on demolition [Act s.52];
- compensation/alternative accomodation on voluntary repair/renovation where right of first refusal not preserved [Act s.54(1,3)];
- compensation/alternative accomodation on voluntary repair/renovation where right of first refusal preserved [Act s.54(2,4), 83(5)];
- compensation/alternative accomodation on downsizing of residential complex and subsequent termination for demolition, conversion or repair/renovation [Act s.55].
. Application Evidence
Such applications must be accompanied by evidence (where applicable) of payment of any required compensation or evidence that the landlord has found the tenant acceptable alternative accomodation [Reg s.53, clause 2]. Such evidence would normally be provided in affidavit form, accompanied by copies of any relevant receipts, cancelled cheques, new leases, etc as exhibits to the affidavit.
Affidavit
4. Former Tenant's Application Where Bad Faith Termination or Denial of Right of First Refusal for Personal Possession, Purchaser Possession or Demolition/Conversion/Repair
(a) Background
The "personal possession" [Act s.48; see s.2], "purchaser possession" [Act s.49; see s.2] and "demolition/conversion/repair" [Act s.50; see s.3] provisions have historically been amongst the most commonly abused by landlords wanting to 'get rid' of unwanted tenants. Landlord relatives living in luxurious condo developments can sometimes develop inexplicable (and remarkably short-lived) tastes for downtown tenement life close to a convenient drug and prostitution trade, and projected repair plans can quickly fall by the wayside once vacant possession is obtained. Vacancy decontrol and an historical shortage of rental unit supply just makes the problem all the worse.
(b) Application for Determination
Thus the "good faith" requirement for some such terminations [Act s.48(1), 49(1), 73], and the creation of remedial tenant applications if - after the tenant has vacated - the proposed possession or activities do not in fact take place "with a reasonable time after" the vacating.
In such cases the (now) former tenant may apply to the Board for a "determination" that the projected activity never took place and that the original Notice of Termination was given in "bad faith" [Act s.57(1)]. On such an application, a determination of "bad faith" may be made regardless of what the Board found as a fact at any previous Board hearing regarding the termination of the tenancy [Act s.57(4)].
Such a determination order may also be made if "the landlord was required to afford the former tenant a right of first refusal" after a repair or renovation termination [under Act s.53: see s.3(d), above] and failed to do so [Act 57.1(1)]. Any application for such a 'first refusal' order must be made within one year of the former tenant vacating the rent unit [Act 57.1(2)].
Form T5: Tenant Application - Landlord Gave a Notice of Termination in Bad Faith
(c) Remedial Orders
If such a determination (above) is made then the Board can make the following remedial orders [Act s.57(3)]:- compensation to the former tenant for:
- part or all of any extra rent that the tenant has incurred or will incur for one year after vacating the premises (ie. in their "new" place); and
- "reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur"
- abatement of rent;
- a fine payable to the Board to a maximum of $10,000 [or the "monetary jurisdiction of the Small Claims Court" - (which at 2019 was $25,000) - whichever is greater].
- any other order that the Board considers appropriate.
These remedies are premised on a rental market that assumes availability of new premises, or at least availability of affordable premises.
With the present market's harshness there exists the possibility that the tenant may end up homeless after a bad faith termination, in which case the 'any other order' option needs to be explored. Consideration should be made of advancing a lawsuit above the Small Claims limit as is allowed for in Act 207(2) [see Ch.16, s.4(c)]. Also, the Small Claims limit is set to rise to $35,000 at 01 January 2020.
There is a time limitation for the commencement of such applications of one year after the tenant vacated the premises [Act s.57(2)].
(d) Evidence Presumptions for Personal Possession Termination
Where an application is made for a determination that a personal possession termination was made in bad faith, "it is presumed, unless the contrary is proven on a balance of probabilities" that the notice of termination was done in bad faith, if the landlord did any of the following between the day that the notice of termination was served to one year after the tenant vacates the unit [Act 57(5,6)]:- advertises the rental unit for rent;
- enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;
- advertises the rental unit, or the building that contains the rental unit, for sale;
- demolishes the rental unit or the building containing the rental unit; or
- takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises.
5. Refund of Compensation on Board Refusal to Terminate and Evict
Above in sections 2 and 3, there are provisions requiring that a landlord pay 'compensation' to a tenant when they give Notices of Termination for several causes [personal possession and purchaser s.2(d.1), demolition or conversion s.3(f,g), repairs or renovations s.3(e), downsizing after severance s.3(h)]. If that compensation has been paid, and the Board subsequently refuses to grant an application for termination and eviction, "the Board may order that the tenant pay back the compensation to the landlord" [Act 73.1(1)].
6. Persistent Failure to Pay Rent on Time
(a) Overview
If the "tenant has persistently failed to pay rent on the date it becomes due and payable" the landlord may issue a "regular" Notice of Termination" at the end of the period or term of the tenancy [Act s.58(1)1].
Form N8: Notice to Terminate a Tenancy at End of Term
(b) Notice Period
The notice period for this type of termination is no less than 28 days for a daily or weekly tenancy, and no less than 60 days otherwise, and the date of termination must fall at the end of a period or term, as the case may be [Act s.58(2)].
(c) Application Evidence
Expected evidence in such an application might include:- copies of repeated landlord correspondence re late rent;
- copies of past Notices of Termination for Non-Payment of Rent (avoided by subsequent payment);
- bank notices re NSF cheques from the tenant;
- copies of past Board applications to terminate and evict for Non-Payment of Rent (avoided by subsequent payment).
Failure of a landlord to provide such documentation (which should be readily available) will likely weaken their case.
(d) Interpretation Issue
In my view there are unresolved issues as to when Notices of Termination for "persistent failure to pay rent on time" expire, and as to the timeframe available to landlords to apply to the Board for termination and eviction on those grounds. They involve uncertain use of legislative language which may - or may not - place such such Notices of Termination on the same footing as "non-payment of rent" Notices of Termination.
These issues are discussed in "Notes" in Ch.4: "Termination Fundamentals", at s.2(e): "Notices of Termination: Expiration of Notice of Termination" and s.4(d): "General Landlord Termination and Eviction Procedures: When to Commence Application to the Board".
7. Ineligibility for Social Housing
(a) Overview
Some public "social housing" landlords [see Ch.2, s.8(b): "Special and Exempt Housing: Social Housing: HSA, Federal and Related Housing Program Exemptions"] may issue a "regular" Notice of Termination at the end of a period or term of the tenancy if the social housing tenant "has ceased to meet the qualifications required for occupancy of the rental unit." [Act s.58(1); Genl Reg 6(6)].
Form N8: Notice to Terminate a Tenancy at End of Term
This ground of termination is no doubt going to run into problems in light of the following prohibition in the RTA [Act s.203]: Act s.203
The Board shall not make determinations or review decisions concerning,
(a) eligibility for rent-geared-to-income assistance as defined in the Social Housing Reform Act, 2000 or the amount of geared-to-income rent payable under that Act; or
(b) eligibility for, or the amount of, any prescribed form of housing assistance. It remains to be seen how the Board will "line-draw" between this prohibition and the obvious need to make a fact determination on the ground of termination - two issues which are obviously integrally intertwined.Case Note: MacKenzie v. Ottawa Community Housing Corporation
In MacKenzie v. Ottawa Community Housing Corporation (Div Ct, 2021) the Divisional Court considered a judicial review application under the Housing Services Act regarding a social housing RGI revocation. In these cases revocation of RGI is done by the service manager (the municipality), while actual termination and eviction is decided by the LTB. The case is useful as an example of a relatively unusual non-LTB social housing appeal. (b) Notice Period
The notice period for this type of termination is no less than 28 days for a daily or weekly tenancy, and no less than 60 days otherwise, and the date of termination must fall at the end of a period or term, as the case may be [Act s.58(2)].
8. Employee/Tenant Employment Terminated
(a) Overview
Where a "tenant was an employee of an employer who provided the tenant with the rental unit during the tenant's employment and the employment has terminated" the landlord may issue "regular" Notice of Termination at the end of period or term of the tenancy [Act s.58(1)3].
Form N8: Notice to Terminate a Tenancy at End of Term
Note that there are a number of employment-related tenancies fully or partially-exempt from the RTA, or subject to other legal treatment. See in particular:- Ch.2, s.2(c): "Farm Employment Accomodation;
- Ch.2, s.2(i): "Business Live-In Employee Accomodation";
- Ch.2, s.5: "Superintendent's Premises".
(b) Notice Period
The notice period for this type of termination is no less than 28 days for a daily or weekly tenancy, and no less than 60 days otherwise, and the date of termination must fall at the end of a period or term, as the case may be [Act s.58(2)].
(c) Grounds of Employment Termination
Whether the underlying employment has been properly terminated (ie. whether it was with "just cause" or a "wrongful dismissal") will only very rarely be a full defence to such a tenancy termination. Outside of some collective agreement (union) contracts and occasionally under Human Rights law (see the Isthatlegal.ca Human Rights (Ontario) Legal Guide), employment law does not give an employee a right to their job - only a right to sue for wrongful dismissal damages if they are later found to have been "wrongfully dismissed". Further, employment may be "properly" terminated without any justification by the giving of a legally-acceptable notice period.
That said, the circumstances of the termination - if sympathetic - may be grounds on which the Board may be inclined to give the tenant/employee more time to leave the premises [see Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture"]. Further, the lost value of employment-related accomodation is a logical claim to make in a wrongful dismissal case - assuming the accomodation was provided at a lower-than market value rent (ie. as a subsidized - and now wrongfully lost - employment benefit).
9. Condominium Purchase Fall-Through
(a) Overview
It is common, while pending the registration of a condominium unit for which an agreement of purchase and sale has been entered into, for such a proposed condominium unit to be rented to the intended purchasers. While for the most part such tenancies are governed by regular RTA rules, there are some exceptions [see Ch.2, s.10: "Interim Possession of Proposed Condominium by Purchasers Pending Title Transfer"].
Where a tenancy arises in good faith in relation to an agreement of purchase and sale of a proposed condo unit, and the agreement of purchase and sale is subsequently terminated, the landlord/owner may issue a "regular" Notice of Termination to the tenant [Act s.58(1)4].
Form N8: Notice to Terminate a Tenancy at End of Term
(b) Notice Period
The notice period for this type of termination is no less than 28 days for a daily or weekly tenancy, and no less than 60 days otherwise, and the date of termination must fall at the end of a period or term, as the case may be [Act s.58(2)].
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