Are the Police Allowed to Evict a Tenant In Shared Accommodations With the Landlord If the Landlord Requests Such?

Where a Tenant is Sharing a Kitchen or Bathroom With the Landlord or Family Members of the Landlord and Is Without Rights Prescribed By the Residential Tenancies Act, 2006 the Commercial Tenancies Act Governs Instead and Provides Protection Against Arbitrary Eviction.

A Helpful Guide For How to Determine the Rights of a Tenant Who Resides With the Landlord In a Shared Accommodation

Lawsuit Document Involving Conspiracy Issues When a tenant lives with a landlord in such a way as to share a kitchen or bathroom with the landlord or certain family members of the landlord, the tenant is without the rights and protections provided by the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17; instead, the rights of the tenant are found within the Commercial Tenancies Act, R.S.O. 1990, c. L.7 and the common law including contract law doctrine, among other things.  The lack of access to the rights and the protections afforded by the Residential Tenancies Act, 2006 arises from the exemption found within section 5, paragraph (i) as is provided below.

There is often confusion regarding the application of the Commercial Tenancies Act upon an accommodation for personal purposes.  Perhaps what is misunderstood is that it is the landlord who is acting in a manner of commerce by selling accommodations.  Furthermore, the Commercial Tenancies Act applies to all tenancies as appears inherent by a broad and blanket definition of "tenant".  Indeed, the only "tenant" relationship falling outside the Commercial Tenancies Act are those tenancies that are subject to the exception in section 2 of the Commercial Tenancies Act, being tenancies that are governed instead by the Residential Tenancies Act, 2006.  This interplay between section 5(i) of the Residential Tenancies Act, 2006 and section 2 of the Commercial Tenancies Act, is apparent upon review of the two sections whereas each says:

5  This Act does not apply with respect to,

(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;

2.  This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies.

Where a tenancy is governed by the Commercial Tenancies Act, due to exclusion from the Residential Tenancies Act, 2006, and where the tenant is overholding or is otherwise without further right to occupy the premises, the landlord may, per section 74 of the Commercial Tenancies Act, apply to the Superior Court for a Writ of Possession which may thereafter be enforced by the Sheriff as a proper means of eviction whereas section 74 states:

74. (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies.

(2) The court shall in writing appoint a time and place at which a judge will inquire and determine whether the person complained of was tenant to the complainant for a term or period that has expired or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession.

(3) Notice in writing of the time and place appointed, stating briefly the principal facts alleged by the complainant as entitling the complainant to possession, shall be served upon the tenant or left at the tenant’s place of abode at least three days before the day so appointed, if the place appointed is not more than twenty miles from the tenant’s place of abode, and one day in addition for every twenty miles above the first twenty, reckoning any broken number above the first twenty as twenty miles, to which notice shall be annexed a copy of the judge’s appointment and of the affidavit on which it was obtained, and of the documents to be used upon the application.

Accordingly, the rights and the protections within the Residential Tenancies Act, 2006 are unavailable to a tenant living within such an arrangement; and as above, the rights and protections available to the tenant are found elsewhere; being specifically, the Commercial Tenancies Act, R.S.O. 1990, c. L.7, and the common law including general contract law principles.  Such was stated within the case of Newman v. Glanville, 2019 ONSC 1040 at paragraph 7 wherein it was said:

[7]  Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

As is apparent, the Commercial Tenancies Act and the Residential Tenancies Act, 2006 intermingle.  The Commercial Tenancies Act, via blanket definition of "tenant" captures all tenancies and then excludes those captured by the Residential Tenancies Act, 2006; which then, generally, excludes certain arrangements, such as accommodations where a kitchen or bathroom are shared with the landlord, and thus in such arrangements, the governing statute then reverts back to the Commercial Tenancies Act.

Improper Eviction Processes
Police Escort

Many people perceive that if the police are willing to do something, then that something must be legal.  Unfortunately, such is often an incorrect presumption whereas, from time-to-time, the police will do something unlawful such as escorting a tenant off the property when requested to do so by a landlord when the landlord is alleging trespass.  While in matters of the tenancy that is governed by the Residential Tenancies Act, 2006, the police, generally, know to stand down and refrain from getting involved, referring to the Residential Tenancies Act, 2006 and the duty of the Office of the Sheriff to perform evictions, there are times, such as when the tenant is sharing kitchen or bathroom with the landlord, and is therefore exempt from the Residential Tenancies Act, 2006, that the police will engage in an effort to evict.  It seems that, generally, where the police are aware that the Residential Tenancies Act, 2006 fails to apply, there is a wrongful belief that the Trespass to Property Act, R.S.O. 1990, c. T.21 applies.  As the landlord, police officers, and the Ottawa Police Services Board, all learned the hard way, a landlord acts unlawfully when declaring a tenant as a trespasser per the Trespass to Property Act and seeking police assisted eviction simply because the tenant is lacking the rights and protections of the Residential Tenancies Act, 2006.  This was made clear in the case of Carr v. Ottawa Police Services Board, 2017 ONSC 4331 where it was said:

[26]  The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave.  At issue is whether the individual has the right or legal authority to enter and/or remain on the premises:  see section 2.

[27]  To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute:  see section 9(1).

[28]  Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA?   For the following reasons, I find they did not:

As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;

As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

There is no evidence that Morgan gave Roxanne notice to leave the home; and

There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29]  In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

Roxanne was, at a Minimum, a Licensee and Entitled to Remain

Accordingly, per the Carr case, without a warrant for arrest or probable cause of wrongdoing contrary to the Criminal Code, and certainly something 'more' than just an advisement from the landlord that the landlord arbitrarily wishes the tenant to leave and therefore the tenant is a trespasser, the police act improperly when assisting a landlord to evict a tenant.

Self-Help, lockout

Courts loathe efforts of self-help, such as a changing of locks for the purpose of recovering possession of residential premises as such conduct may encourage violence, among other chaos.  This judicial attitude against self-help conduct, such as where a landlord takes direct steps, without due notice or proper legal process to evict a tenant is strongly frowned upon.  Equally, where a tenant engages in a lockout of the landlord, such is also frowned upon.  Such appears clear upon review of Divitcos v. CompCorp Life Insurance Co., [1997] O.J. No. 186, where it is said:

53.  If the solicitor counselled or countenanced these clearly illegal acts of his clients his own conduct was outrageous, and well below the standard which the court is entitled to expect from any solicitor licenced to practice as such in Ontario. The policy against self-help - against the recovery of possession of residential premises except under the authority of a writ of possession - is too well established to allow for an exculpatory plea of ignorance of the law from a solicitor purporting to act in this area of the law. The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence. A majority of the persons in Metropolitan Toronto live in rented accommodation. The public interest in avoiding self-help remedies is obvious and the public policy is clearly reflected in the legislation. It is not tolerable that solicitors, or other representatives of landlords or tenants, whether through ignorance or defiance, countenance, counsel or assist with illegal activities such as those carried out in this case by Diane and Steve Divitcos.

It is clear upon review of the harshly written words of the court that self-help efforts are viewed negatively and, for public policy reasons, among other reasons, are deemed unlawful within the common law.

Contract Law Prevails

Where a contract exists, which could be written, verbal, or presumptively implied as shown further below, the period of tenancy is governed by the agreed upon terms.  When the contract ends, unless there are options for extension of tenancy that are exercised, the right of possession of the premises ends.  Accordingly, it would seem that where the contract grants premises possession privileges in favour of the invitee licence for which a landlord is unable to unilaterally withdraw per the Carr case, such privileges do expire upon expiry of the contract whereas the common law, unlike the Residential Tenancies Act, 2006, is without security of tenancy protection.  Of course, this is said without suggesting that once a tenancy contract expires, a landlord may engage in self-help conduct similar to that in the Carr case and contrary to the Divitcos case.  Due process may be required even for an overstaying tenant whereas such occurred in the case of Ravnaski v. Zolis, 2020 ONSC 923 wherein a court decision was obtained to evict a tenant and wherein it was said:

[15] The Residential Tenancies Act did not apply to the rental agreement Mr. Ravnaski had with his mother while she was alive, even though he paid her rent. The Residential Tenancies Act does not apply with respect to living accommodation whose occupant shares a bathroom or kitchen facility with the owner.  Mr. Ravnaski’s mother owned the condominium and they shared a kitchen. Mr. Ravnaski’s tenancy was, therefore, not covered by the Residential Tenancies Act while his mother was alive.

[17] For the reasons that follow, I find that Mr. Ravnaski had a contract with his mother to live in her condominium for a month at a time in exchange for rent. The estate was required to permit Mr. Ravnaski to live in the condominium for the remainder of the month for which he paid before his mother passed away. Mr. Ravnaski never entered into a contract with the estate that would permit him to continue to live in the condominium after the agreement he had with his mother expired. As a result, he is not a tenant of the estate and has no legal entitlement to stay in the condominium.

[33] I find that Mr. Ravnaski is not a tenant of his mother’s estate and there has never been a valid tenancy agreement between Mr. Ravnaski and the estate. Mr. Ravnaski’s occupation of the condominium was not governed by the Residential Tenancy Act while his mother was alive and that did not change after her death. The Estate Trustee is entitled to vacant possession of the condominium and Ms. Zolis’ application (CV-19-00624557-000) is granted.

[60] Mr. Ravnaski is not now and has never been a tenant of the estate. His occupation of the condominium is not governed by the Residential Tenancies Act. The estate’s application (CV‑19‑00624557-000) for vacant possession of the condominium is granted.

[61] In her application, Ms. Zolis asked for an Order that Mr. Ravnaski vacate the property immediately. She also asked for an Order authorizing her to seek the assistance of the Sheriff to secure the vacant possession of the property if Mr. Ravnaski does not voluntarily leave.

[62] Mr. Ravnaski is ordered to vacate the property within 90 days from today. If Mr. Ravnaski refuses to leave the condominium in compliance with my order, Ms. Zolis, in her capacity as the Estate Trustee, is granted leave to issue a writ of possession in relation to the condominium and require the Sheriff of the City of Toronto (the “Sheriff”) to put her in vacant possession of the condominium. Ms. Zolis, in her capacity as the Estate Trustee, can seek the assistance of the Toronto Police Service, the Sheriff and any qualified and licensed locksmith to obtain and secure vacant possession of the condominium. To the extent that the Toronto Police Service, the Sheriff of the City of Toronto or a locksmith are involved with securing vacant possession of the condominium for the Estate Trustee, they are to be held harmless.

Again, as indicated in Ravnaski, when the contractual right to possession of premises ceased, the right to possession ceased without  the security of tenure, or any covenants with the land provisions, as would exist in a Residential Tenancies Act, 2006, governed tenancy; however, due legal process was still pursued to obtain permission to obtain a Writ of Possession enabling proper efforts to evict.

Relief

Where a tenant is improperly evicted from a shared accommodation arrangement, and is therefore without the rights and protections provided by the Residential Tenancies Act, 2006, the tenant may choose to contact a lawyer to review legal options that are available via the Superior Court of Justice.

Alternatively, the tenant may choose to seek compensation for damages such as the costs of relocating including moving expenses, increased rent for the period of proper notice, among other things.  The tenant may also seek general damages for inconvenience and stress, among other emotional injuries.  In circumstances that were exceptionally malicious and egregious, it is possible that punitive damages may be available.  If these damages total $35,000 or less, the tenant may bring such a claim to the Small Claims Court. 

Summary Comment

Where the Residential Tenancies Act, 2006, is inapplicable to some tenancy situations, such as where a tenant shares a kitchen or bathroom with the landlord, the tenant still holds various rights including protection from unilateral and arbitrary eviction by the landlord.  Where the Residential Tenancies Act, 2006 fails to apply, the common law and contract law principles apply.  The common law shows that a Notice to Vacate is required and, if the tenant fails to vacate, obtaining a Writ of Possession followed by enforcement via the Sheriff, or other persons legally authorized to perform evictions, may then occur.  Accordingly, a landlord is without the right to preempt due process by taking self-help steps to evict the tenant such as obtaining the assistance of the police and attempting to rely upon the Trespass to Property Act as an authority to evict a tenant at whim.


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