Agent of the Landlord (Police)

From Caselaw.Ninja


Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act, ...

“landlord” includes,
(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,
(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)

22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household. 2006, c. 17, s. 22.

29 (1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20 (1) or section 161.
2. An order determining that the landlord, superintendent or agent of the landlord has withheld the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfered with the reasonable supply of any vital service, care service or food.
3. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.
4. An order determining that the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the rental unit.
5. An order determining that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.
6. An order determining that the landlord, superintendent or agent of the landlord has illegally entered the rental unit. 2006, c. 17, s. 29 (1).

...

31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;
(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,
(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and
(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;
(c) order an abatement of rent;
(d) order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;
(e) order that the tenancy be terminated;
(f) make any other order that it considers appropriate. 2006, c. 17, s. 31 (1).
(2) If in an application under any of paragraphs 2 to 6 of subsection 29 (1) it is determined that the tenant was induced by the conduct of the landlord, the superintendent or an agent of the landlord to vacate the rental unit, the Board may, in addition to the remedies set out in subsection (1), order that the landlord pay a specified sum to the tenant for,
(a) all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit; and
(b) reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur. 2006, c. 17, s. 31 (2).
(3) If the Board determines, in an application under paragraph 5 of subsection 29 (1), that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex, or caused the locking system to be altered, during the tenant’s occupancy of the rental unit without giving the tenant replacement keys, and if the Board is satisfied that the rental unit is vacant, the Board may, in addition to the remedies set out in subsections (1) and (2), order that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else. 2006, c. 17, s. 31 (3).
(4) An order under subsection (3) shall have the same effect, and shall be enforced in the same manner, as a writ of possession. 2006, c. 17, s. 31 (4).
(5) An order under subsection (3) expires,
(a) at the end of the 15th day after the day it is issued if it is not filed within those 15 days with the sheriff who has territorial jurisdiction where the rental unit is located; or
(b) at the end of the 45th day after the day it is issued if it is filed in the manner described in clause (a). 2006, c. 17, s. 31 (5).

[1]

Stewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII)

[1] This appeal, like that in Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, concerns the interaction during the June 2010 Toronto G20 summit between members of the Toronto Police Services (“TPS”) and protestors who were demonstrating on public property. Prior to 2010, the protests accompanying G20 summits had presented significant policing challenges, with large peaceful protests intertwined with protestors who were intent on violence and the destruction of property.

...

[8] For the reasons set out below, I would allow Mr. Stewart’s appeal. I conclude that in these circumstances the police did not have the power, as agents of the City for purposes of administering the TPA, to require Mr. Stewart to submit to a bag search as a condition of entering Allan Gardens to join the protest. I would award Mr. Stewart damages in the amount of $500 pursuant to s. 24(1) of the Charter.

...


[23] The police witnesses identified the TPA as the source of their authority to restrict entry to Allan Gardens to those who allowed a bag search. The officers stated they knew that each year the City provided the TPS with a letter authorizing the police to act as agents of the City for purposes of the TPA.

[2]

TET-64613-15-RV (Re), 2017 CanLII 48853 (ON LTB)[3]

27. But I also agree with the Tenants that the task before the Board was not to determine whether or not the contractor was the Landlord’s agent at common law; rather, the task was to determine whether or not the Landlord was responsible for the contractor’s default under the Act. In other words, was the contractor an agent of the Landlord’s for the purposes of s. 29(1)3? That is a statutory interpretation exercise. Although the common law usage of a word may be what the Legislature intended when it used the word “agent” in s. 29(1)3, it does not necessarily follow. The word agent can have many meanings. (See: Town of Timmins v. Brewers’ Warehousing Co. Ltd., 1962 CanLII 188 (ON CA)[4].) So the Board Member here was required to do a more nuanced and purposive analysis of the provision than simply accept the Legislature intended the word “agent” to be the same as the common law meaning.

28. The conclusion of the Member on this issue is found at paragraphs 26 through 28 of the order under review which say in part:

26. The legal obligation to perform the work in accordance with the Act rests solely with the Landlord, not a third party or independent contractor. The landlord can either meet this obligation by doing the work itself or retaining an agent to perform the work. If the Landlord did the work itself, there is no doubt that it would be subject to s.8 and could be held liable if the interference caused by the work was unreasonable in the circumstances. To suggest that if the Landlord instead hires a contractor to perform the work s.8 is of no applicability because the Landlord cannot be held responsible for the substantial interference caused by their contractor would be an absurd result. As virtually all landlords hire contractors to perform significant maintenance and repair projects, this interpretation would render s. 8 virtually meaningless as the Tenants cannot pursue the contractor directly.
27. I further find to make the statement that the Contractor is not an agent of the Landlord because the Landlord does not exercise control over the Contractor is factually incorrect. The Landlord entered into a contract with the Contractor and pays the Contractor directly. The Landlord could have sued the contractor for improper work done or work not done in time.
28. Thus, the Contractor is an agent of the Landlord as defined in the Act…

29. To put it in my own terms what the Member essentially decided was that a landlord cannot avoid legal liability for its obligations under the Act by contracting out those obligations to a third party. A landlord is responsible to its tenants for maintenance and repair and not its contractor. Tenants have no privity of contract with the contractor and cannot seek a remedy against it for the impact on them of the contractor’s defaults. To find that a landlord is responsible for poor or slow work done by an employee of a landlord but not a contractor would be an absurd result.

...

43. In that case the landlord had contracted with a sub-metering company to install suite meters and tenants then contracted separately with the sub-metering company for the provision of electricity. The tenants sought to recover from the landlord payments made to the sub-metering company that they argued were illegal. The Board found that the sub-metering company was not the landlord’s agent and therefore not properly a party before the Board. This result was upheld by the Divisional Court. (See: Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Second Ave., 2012 ONSC 6733, at para. 7.[5])

44. So the Gonte situation is not analogous to the situation here either. The tenants in Gonte had contracts with the sub-metering company independent of the landlord and presumably could sue on those contracts in the case of breach or illegality.

45. Given the above, I am not satisfied that the Board seriously erred in how it handled the interpretation of the word “agent” in s. 29(1)3 given the context and circumstances before it.

[3] [4] [5]

Atas v. Toronto Police Services Board, 2018 HRTO 161 (CanLII)[6]

[57] The Applicant's allegations as against the Toronto Police Services Board and Chief of Police of the Toronto Police Service relate to their actions in removing the applicant from the rental unit on May 25, 2016 and incidents on May 29, 2016 when they attended after the applicant was denied the applicant access to the building, assessed the situation, and escorted the applicant to CAMH.

Allegations Related to May 29, 2016

[58] At the summary hearing the applicant described that the officers treated her like she was “crazy” on May 29, 2016, apprehended her under the Mental Health Act, and dumped her off at CAMH based on fabricated facts that she was a verbal and physical threat to others and an emotionally disturbed person. She submitted that the police officers asked her what country she was from. She also indicated that the police officers were laughing at her in the police cruiser because they assumed she was mentally ill, and told her, “don’t worry – we’ll get your meds soon”, even though she was not on any mental health medication.

[59] Based on all of the submissions, I do not agree that the applicant’s allegations against the Toronto Police Services Board and Chief of Police of the Toronto Police Service with respect to the actions and comments made on May 29, 2017 have no reasonable prospect of success. If the allegations are found to be true, it is possible that they they might be found to constitute discrimination or harassment because of the applicant’s disability or her perceived disability.

[6]

Raba v. Vaccarelli, 2015 HRTO 1279 (CanLII)[7]

[29] In addition to the above-noted Tribunal decisions and reconsideration decisions, the applicant has commenced three civil actions in Ontario’s Superior Court of Justice pertaining to issues arising from his 2012 LTB proceeding with the respondents. He has sued the LTB itself, as well as two LTB members who issued decisions about his LTB proceeding with the respondents. See: Raba v. Landlord and Tenant Board, 2014 ONSC 2599[8], aff’d 2014 ONCA 864[9], in which the statement of claim was dismissed as a collateral attack on the LTB decision and an abuse of process; and Raba v. Wronecki, 2015 ONSC 20[10], which held, at para. 10, that there was no legal basis upon which to assert the applicant’s claim, and, at para. 14, that the doctrines of stare decisis, res judicata, issue estoppel and abuse of process apply. In Raba v. Wronecki, 2015 ONSC 561[10], the applicant was ordered to pay costs to the defendants.

[30] In Raba v. Toronto (Police Services Board), 2015 ONCA 12[11], in which these respondents were named as defendants along with other defendants in the statement of claim, the Ontario Court of Appeal endorsed the appeal book stating, “This is an interlocutory order. The court has no jurisdiction to hear this appeal. Accordingly, the appeal is quashed”. Costs were fixed to the defendants in the amount of $2,000.00. From the respondents’ submissions, there is a second civil action commenced by the applicant against the respondents.

[7] [8] [9] [10] [11]

Williams v Toronto (City), 2016 ONSC 42 (CanLII)[12]

[65] The proximity analysis involves considering factors such as expectations, representations, reliance, and property or other interests involved: Cooper v. Hobart[13], supra at para. 34; Hill v. Hamilton-Wentworth Regional Police Services Board, supra at para. 23; Odhavji Estate v. Woodhouse, supra at para. 50. Proximity is not concerned with how intimate the plaintiff and defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed: Hill v. Hamilton-Wentworth Regional Police Services Board, supra at para. 29.

[12] [13]

Ruddall v. Windsor (City), 2021 HRTO 217 (CanLII)[14]

[30] I am persuaded that for the purposes of the Code, the applicant’s employer is the WBPS.

[31] The decision of the Supreme Court of Canada in McCormick requires the court to address the question of whether there was an employment status between the parties, being a law firm and a partner in the firm. The decision examined indicia of control and dependency in a context which was not subject to legislation which would inform the employment context. In the matter at hand, however, the PSA informs the employment context. While legislation places responsibility on the municipality to provide and pay for police services, it does not require the municipality to employ the members of the police force directly.

[14]

References

  1. Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17>, reterived 2021-03-17
  2. Stewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII), <https://canlii.ca/t/j6fwl>, retrieved on 2021-03-17
  3. 3.0 3.1 TET-64613-15-RV (Re), 2017 CanLII 48853 (ON LTB), <https://canlii.ca/t/h539s>, retrieved on 2021-03-30
  4. 4.0 4.1 Town of Timmins v. Brewers' Warehousing Co. Ltd., 1962 CanLII 188 (ON CA), <https://canlii.ca/t/g18gl>, retrieved on 2021-03-30
  5. 5.0 5.1 Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Secord Ave., 2012 ONSC 6733 (CanLII), <https://canlii.ca/t/fv38h>, retrieved on 2021-03-30
  6. 6.0 6.1 Atas v. Toronto Police Services Board, 2018 HRTO 161 (CanLII), <https://canlii.ca/t/hqhdl>, retrieved on 2021-03-30
  7. 7.0 7.1 Raba v. Vaccarelli, 2015 HRTO 1279 (CanLII), <https://canlii.ca/t/glbj0>, retrieved on 2021-03-30
  8. 8.0 8.1 Raba v. Landlord and Tenant Board, 2014 ONSC 2599 (CanLII), <https://canlii.ca/t/g6szw>, retrieved on 2021-03-30
  9. 9.0 9.1 Raba v. Landlord and Tenant Board, 2014 ONCA 864 (CanLII), <https://canlii.ca/t/gfgtj>, retrieved on 2021-03-30
  10. 10.0 10.1 10.2 Raba v. Wronecki, 2015 ONSC 561 (CanLII), <https://canlii.ca/t/gg33w>, retrieved on 2021-03-30
  11. 11.0 11.1 Raba v. Toronto (Police Services Board), 2015 ONCA 12 (CanLII), <https://canlii.ca/t/gfwp9>, retrieved on 2021-03-30
  12. 12.0 12.1 Williams v Toronto (City), 2016 ONSC 42 (CanLII), <https://canlii.ca/t/gmr6d>, retrieved on 2021-03-30
  13. 13.0 13.1 Cooper v. Hobart, 2001 SCC 79 (CanLII), [2001] 3 SCR 537, <https://canlii.ca/t/51xc>, retrieved on 2021-03-30
  14. 14.0 14.1 Ruddall v. Windsor (City), 2021 HRTO 217 (CanLII), <https://canlii.ca/t/jdvt1>, retrieved on 2021-03-30