Hotel Room (Rental Unit)
- 1 SOT-85146-17-AM (Re), 2018 CanLII 141538 (ON LTB)
- 2 TST-64688-15-RV-IN-AM (Re), 2017 CanLII 9473 (ON LTB)
- 3 SWT-94673-16 (Re), 2016 CanLII 88156 (ON LTB)
- 4 CET-70868-17 (Re), 2018 CanLII 41829 (ON LTB)
- 5 TET-56104-15 (Re), 2015 CanLII 35724 (ON LTB)
- 6 TET-90433-18-IN (Re), 2018 CanLII 113775 (ON LTB)
- 7 Re Canadian Pacific Hotels Ltd. and Hodges et al., 1978 CanLII 1371 (ON SC)
- 8 Re Queen Elizabeth Hospital and Campbell, 1985 CanLII 1991 (ON SC)
- 9 Foster v. Lewkowicz, 1993 CanLII 8610 (ON SC)
A1 – Does the Act apply?
1. The issue is whether the Act applies to the Tenants’ living accommodations. The Landlord relies on the exemption provided in Section 5 (a) of the Act, which states that the Act does not apply with respect to,
- (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.
4. SL moved into unit #11 as of December 2016 and vacated on August 31, 2017, for a total occupancy period of nine (9) months. SL was charged $600.00 per month with no HST plus a $200.00 security deposit.
11. The units, for the most part, consisted of a room, a bathroom and a kitchenette with a fridge and a microwave. The Tenants brought into the unit their own furniture and appliances, including, in the case of AS and GW, their own bed and in the case of HC, his own microwave. The Tenants decorated or were free to decorate their respective units.
12. The Tenants did not receive services such as cleaning of the unit, provision of meals or change of beddings and towels.
13. The Tenants did not have any restrictions with respect to guests.
14. All the Tenants lived exclusively in their respective units throughout the duration of their occupancy. They had no other residence. All the Tenants regarded the rental unit address as their permanent address and used the same for government (OW, ODSP, CPP, WSIB) and employment records.
15. AS testified that the Landlord told her she had to give 60 days’ notice prior to moving out JW, KK, GW, SL testified they believed they could move out at any time, without having to provide 60 days’ notice.
18. While these circumstances suggest the accommodation was not a residential tenancy within the Act, the Board, pursuant to Section 202 of the Act, may disregard the outward form of a transaction and may have regard to the pattern of activities relating to the residential complex or the rental unit.
19. The pattern of activities includes the fact that each Tenant paid a monthly amount which had no relation to the $30.00 daily rate cited by the Landlord, and which did not include a tax component, as evidenced by receipts submitted by the Tenants. That the Landlord did not charge and the Tenants did not pay tax on the amount charged, strongly indicates this was not a hotel or motel accommodation.
20. The pattern of activities includes the fact that the Tenants did not receive the usual hotel or motel services such as room cleaning and change of beddings and towels. There was no intercom or phone service linking the room to the reception desk.
21. The pattern of activities also includes the fact that the Tenants, at the start of their occupancy, did not provide a date of departure. They did not check in and check out on a daily, weekly or even monthly basis.
22. The pattern of activities also includes the fact that the Tenants, at the start of their occupancy, did not provide any other permanent address. They resided in the units exclusively and indefinitely. They received mail at the rental unit address.
23. I find that the pattern of activities strongly indicates “residential units” or living accommodations used or intended for residential premises within the scope of the Act.
24. In 2010 ONCA 468, the Court of Appeal in paragraph 31, explained that the governing legislative definition of “rental unit” asks whether the premises are used as residential premises, regardless of what other activities are carried on by the person residing in the premises.
29. I also have not overlooked the fact that the T.F.D., in its Inspection Order dated June 14, 2017 identified the property as a “Hotel”, and not a multi-unit residential building. With due respect, the Fire Department’s characterization of the premises is not binding on the Board. In making determinations, the Board interprets its “home statute” with which it has particular familiarity.
30. In the totality of the evidence, and bearing in mind the Board’s mandate to ascertain the real substance of the activities, I find that the living accommodations are residential tenancies to which the Act applies.
4. The Tenants in response to the on-line advertisement contacted the Landlord to inquire about renting a two bedroom unit on the third floor of the complex for the entire school year. The Landlord and Tenants RG and JA signed a “Booking Agreement” which outlines the term of the agreement including the duration August 21, 2014 to May 21, 2015. The total amount the Tenants were to pay for the nine month stay is $17,010.00 payment to be made in four installments. The document also sets out what is provided or not, amounts for key and damage deposits, and costs associated with overnight guests.
18. In Matthews v. Algoma Timberlakes Corp. while the Court of Appeal for Ontario considered the proper interpretation of the Act and its applicability to land leases for recreational land lease homes, the Court, nonetheless, engages in an extensive analysis of the applicability of subsection 5(a) of the Act and the appropriate interpretation in connection therewith. While some of the facts in Matthews v. Algoma Timberlakes Corp. are certainly different from those in the instant case, in keeping with Glanville Williams, above, it is the ratio decidendi [reason of deciding] of a case, the material facts of the case plus the decision thereon that matters. Moreover, the Court in Matthews v. Algoma Timberlakes Corp. does, at paragraphs 28, 29 and 33 to 35, inclusive, and as will be referred to below, directly address the very relevant issue of whether a type of occupation is for a temporary period, which issue is at the heart of the Member’s decision in the instant case.
22. In my view, the unit herein meets the definition of a “rental unit”. That is, the unit was “living accommodation” and intended for use as “rented residential premises”. The Tenants lived in the unit and the unit contained a sleeping and living area. No evidence was presented that the Tenants, during the time that they lived in the unit, engaged in activities other than what people ordinarily do in a residential unit.
23. With respect to the unit being “rented residential premises”, I am satisfied, based on the evidence presented, that this requirement is also met. There is no suggestion that the unit was “commercial”. More importantly, the Tenants paid rent to the Landlord in order to be entitled to occupy the unit and, as such, the unit was “rented”.
27. I agree with Tenants’ counsel that to give effect to the scheme and the object of the legislation and in keeping with the intent of the Legislature, section 5(a) must be interpreted narrowly so as not to carve out too large a segment and bring housing, which the Act was intended to protect, within its ambit. This position is supported by Grenadier (Tenants of) v. We-Care Retirement Homes of Canada, (1993) O.J. No.1550 (Div. Court.) where the Divisional Court for Ontario stated, in part, as follows:
- “3. With great respect, and recognizing that the matter is by no means beyond doubt, I have concluded that, given the remedial nature of this legislation, the language of the whole clause, the burden on one who seeks to invoke an exemption, the opportunities for abuse opened up by a lesser standard and the use of the words “the purpose” (emphasis added) in the section, it was the legislature’s intent to exempt accommodation only where the enumerated purpose is the primary reason why the occupant is occupying that particular accommodation.”
29. Tenants’ counsel further submitted that an appropriate interpretation of subsection 5(a), as it generally applies, would involve the phrase “seasonal or temporary period” being assisted by “travelling or vacationing public” and “vacation home” being analogous to a hotel, motel and the other accommodation examples listed and such interpretation would bring the analysis within the narrow scope of the exemption sought to be achieved by the Legislature and leave out the vast majority of occupations, which the Act aims to protect. In my view, the noscitur a sociis rule, which permits the determination of the meaning of a term through its relation to other terms, is not applicable here. In R. v. Daoust, (2004) 1 SCR 217, 2004 SCC 6 (CanLII), the Supreme Court of Canada stated, in part, as follows:
- 61.In the present case, the words “conceal” and “convert” are not part of a list. On the contrary, they are two distinct terms with distinct meanings. This is demonstrated by Parliament’s use of the expression “with intent to conceal or convert”, as the use of the word “or” shows an intent to distinguish the two terms from each other. For this reason, these two terms should not be read together, and the noscitur a sociis rule does not apply. [Emphasis added]
31. What is required is a purposive and plain reading of subsection 5(a) of the Act and such sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis) and (3) be situated in a hotel, motel, bed and breakfast or other listed establishment
34. This is consistent with Curtis Property Management v. Rezai (unreported, March 28, 1989, Ont. Dist. Ct.), where Justice Conant found that a rented hotel room fell within the realm of “rented residential premises” based on a number of factors, including: whether the occupant had demonstrated an intention to reside there on a "somewhat permanent basis" (i.e., having moved in what most people might consider fixtures, such as stereo equipment, rugs, pictures lamps, etc.); whether typical hotel services (e.g. room service and cleaning) were included; and, the degree of control the occupant had over the suite or, conversely, whether the owner was free to enter the unit at will. In his reasons, Conant, J. wrote that, “If the premises are residential, then the landlord's calling the building a ‘hotel’ was an invalid attempt to evade the provisions of the [then] Landlord and Tenant Act.”
38. In light of all of the evidence submitted, and the submissions of the parties, I do not find that the Landlord met its evidentiary burden to demonstrate, on the balance of probabilities, that the exemption at subsection 5(a) of the Act applies to this residential accommodation. Therefore, I am satisfied that there is a serious error in the order and the Tenants’ request for review must be granted.
2. This jurisdictional issue arose when F.P. informed the Applicant on October 9, 2016 that her room was no longer available and that she would be required to vacate the unit immediately. This notice of termination would not comply with the notice requirements of the Act. However, the Respondent takes the position that the Act does not apply since the residential complex is a motel.
3. Notwithstanding that the Applicant filed this application, if a party takes the position that the premises in question are subject to an exemption from the Act, the burden of proof is on the party claiming the exemption. As a result, in this instance, the Respondent bears the evidentiary onus to prove that the Act does not apply.
7. F.P. was present when the Applicant moved into the unit on September 1, 2015 and described this process as “checking her in.” He testified that the Applicant was informed at this meeting that the complex was a motel. While she did not recall receiving this information, she also could not contest F.P.’s evidence on this point. She acknowledged that she was required to sign a guest card when she first moved into the complex and did not question why she was required to sign this document upon moving into the unit. F.P. testified that all guests are required to sign these cards upon continuation of their occupancy. However, the evidence indicated that the Respondent may not have consistently required the Applicant to sign a new card on the first of every month since September, 2015. Her uncontested recollection was that she signed approximately six subsequent guest cards on a monthly basis since moving into the unit.
10. Section 202 of the Act requires the Board to “ascertain the real substance of the activities” relating to the occupancy and to do so disregarding “the outward form of [the] transaction.” Accordingly, a term in the lease, or in this case, a verbal declaration that the Act does not apply, will not have the effect of avoiding the application of the Act, provided that the premises otherwise fit within the statutory definition of a “rental unit.” Similarly, the City’s policy with respect to zoning cannot be equated with evidence that the premises are exempted from the Act if the circumstances of the residency indicate otherwise.
13. By this principle, each of the exclusions in subsection 5(a) of the Act must be read in the context of the provision as a whole. The premises at issue must provide “living accommodations,” that are “intended to be provided to the travelling or vacationing public” or, for the same purposes, “occupied for a seasonal or temporary period.” In other words, if the rental unit falls under either of these clauses, it may be excluded from the protection of the Act, pursuant to subsection 5(a) of the Act.
14. In the present case, because the rental unit is the Applicant’s sole residence, she cannot be deemed to be a member of the “travelling or vacationing public.” As a result, the first clause of the exemption does not apply to this living accommodation. The Respondent therefore necessarily relies upon the latter clause of the exemption that lists a number of included living situations that are “occupied for a seasonal or temporary period.” Unlike the first clause of the exemption, this clause does not consider the intent of the parties, but rather their actual conduct in relation to the premises.
15. It is the use made of the particular rental unit which must be considered, not the overall use of the building or complex. In other words, if other units in the residential complex are used in a different manner compared to the Applicant’s residence, this is not determinative of whether the exemption applies to her unit. Similarly, while the complex may be zoned for specific uses, the actual conduct of the parties may or may not conform to these restrictions. Furthermore, it is the current occupant’s use of the rental unit that is at issue, rather than the past history of the unit. In the present situation, the evidence indicated that the Applicant’s use of the rental unit remained consistent from September 1, 2015 to the date of the hearing.
16. Supporting the Applicant’s contention that the Act applies, there was no limitation on the duration that the Applicant may occupy the premises, no daily housekeeping service and no sales tax added to the monthly charge collected each month. All of these factors strongly suggest a tenancy rather than a seasonal or temporary accommodation.
17. The primary variable upon which the Respondent relied to characterize the premises as a motel was the guest card presented to the Applicant more or less each month. However, the evidence at the hearing indicated that this policy was not strictly enforced as the Applicant signed the cards in some months, but not in others, roughly half for the thirteen months of the occupation to the date or the hearing. There was also no cogent evidence submitted that failure to sign the card in a given month would necessarily lead to termination of the residency.
18. F.P. testified that provided the Applicant paid her monthly charges or otherwise refrained from disruptive conduct, she would be welcome to extend her occupation month after month. This rather unexceptional policy is consistent with a residential tenancy and further underscores the conclusion that continuous occupation does not depend on signing the guest card. As a result, I do not find that the guest card policy places this accommodation outside of a residential tenancy accommodation.
19. In light of all of the evidence submitted, I do not find that the Respondent met its evidentiary burden to demonstrate on the balance of probabilities that the exemption at subsection 5(a) of the Act applies to this residential accommodation.
3. JA also requested a dismissal of the application as the application was filed by a number of parties, who each have their own contract and/or rental agreement for occupation of different rooms at the motel/resort. This was not disputed by the Tenant or the other parties. JA argued that each party ought to bring their own application given their differing living accommodations and contracts.
10. This type of application is fact driven and I am not bound by prior orders of the Board regarding different living accommodations at this property. However, I would agree that consistency in decision making is very important in the same fact situation in regards to maintaining fairness. The facts in CET-37930-14 were not similar to the facts stated in this application. In particular, the tenant in CET-37930-14 did not dispute it was a temporary occupancy.
23. In accordance with the exemption stated in subsection 5(a) of the Act, the following relevant factors are required: accommodation intended for the traveling or vacationing public, seasonal or temporary, and in a motel or resort. All three factors must exist for the exemption to apply.
24. Firstly, based on the evidence before me, I am not satisfied that the Tenant was travelling or vacationing when she rented the unit. Nor am I satisfied that this accommodation was intended for the travelling or vacationing public. The Tenant inquired with the manager and was given the impression that a long term occupancy was acceptable.
26. As well, I am not satisfied that this living accommodation was for a seasonal or temporary period. The Tenant has resided in the unit for over a year, four months of which have been without signing the Landlord’s required monthly contract. The dictionary definition of seasonal “relates to the characteristics of a particular season” or “fluctuating or restricted according to the season or time of year.” The Tenant has continued to occupy the unit for the last year including the Landlord’s stated busy season. She was not restricted to occupying the unit for a particular season or time of year.
27. The dictionary defines temporary as:
- Lasting for only a limited period of time; not permanent
28. Simply by limiting the number of days the Tenant may occupy the premises to a maximum of 31 days in the contract, does not make this occupancy temporary. Especially, since the contract was renewed on a continuous basis.
31. The Board must still apply the legal test to the exemption raised on a case by case basis while acknowledging that there is other legislation, namely the zoning By-Law that may be applicable for the same property. For example, there is a municipal By-Law for the City of Brampton that requires a secondary unit in a single family dwelling to be registered. Very often parties enter into occupation/tenancy agreements regarding a basement unit in this municipality that is not registered. It would be absurd for the Board to accept that because the unit does not conform to this By-Law the tenancy created is exempt from the Act. In this scenario presented, the property may be zoned Tourist Commercial but it doesn’t mean that the Act doesn’t apply to this occupancy.
It is ordered that:
The Act applies.
10. The Tenants’ evidence is that when they moved into their respective units they intended to treat their units as their long-term permanent homes and that this fact was communicated to the previous landlord when they took possession of their units. They moved in with all of their possessions, with the exception of possessions that could not fit in the units and were kept in storage, and listed the Inn as their home address for the purpose of their financial and legal affairs. None of the Tenants had any other residence from the time that they took possession of their respective units at the Inn.
15. The Landlord testified that he did not speak with the previous landlord about the particulars of the tenancy agreements agreed to with the Tenants. He further testified that the Inn charges extra for laundry facilities, that there are no telephones or televisions, provided by the Inn, in the Tenants’ units and that no notice, pursuant to the Innkeepers Act, is posted on the premises. The Landlord also testified that, as of the date of the hearing, he had not yet repaired the electric exterior signs bearing the Inn’s name and that while the Inn is in “the process of building relationships” with some online travel sites it does not have its own website.
18. A plain reading of subsection 5(a) of the Act sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis); and (3) be situated in a in a hotel, motel or motor hotel. I would further interpret the subsection to require the presence of all three elements for an exemption to exist. The onus is on the Landlord to prove the exemption.
19. There is no issue as to the first element—that of the Tenants’ units being living accommodation. The more significant issue is the second part of the second test (as I am satisfied that the Tenants are not travelling or vacationing public): were the units occupied for a seasonal or temporary period? I find, on a balance of probabilities, that the intention of the Tenants and the previous landlord upon entering into tenancy agreements was that the accommodation would be long-term and permanent. This was the evidence of all Tenants corroborated by their uncontradicted evidence that they had no other residence, moved all of their belongings into the units, listed the address of the Inn as their home address for the purpose of their financial and legal affairs, received their mail at the Inn’s postal address and listed the Inn’s address on their drivers licences.
20. The Landlord’s evidence was that he did not speak with the previous landlord about the particulars of the tenancy agreements agreed to with the Tenants. As purchaser of a new rental complex the Landlord should have used due diligence in obtaining all relevant information about the tenancy agreements of existing tenants
21. A landlord cannot change the character of a tenancy to exempt it from the Act. Simply because the Landlord may have been advised by the previous landlord and real estate agent that the Inn was covered by the Innkeepers Act or because the agreement of purchase and sale states that the “residing tenants” would have to make arrangements with the new owner as any agreements with the previous owner ended on the day of closing of the transaction or, as the Landlord testified, because he has a “different operating philosophy”, does not make the Inn exempt from the Act.
22. Moreover, Section 202 of the Act requires that I look at all of the circumstances in making determinations and I find that the evidence before me, especially the intention of the parties to the original tenancy agreement, is indicative of long-term permanent tenancies entered into between the Tenants and the previous landlord to which the Act applies and which, by operation of Section 18 of the Act, run with the land and must be honoured by the current Landlord.
1. At the hearing a preliminary issue was raised by the Landlord. The Landlord submits that the Residential Tenancies Act, 2006 (the ‘Act’), does not apply to the Tenant’s unit.
2. The residential complex is a motel which includes individual units as well as motel units. It has 52 units in total with the longest running tenancy being 15 years, some as long as 8 or 9 years, and some are short term/temporary. Rates can be daily, weekly or monthly.
3. The Landlord submits that the Tenant switched to a temporary dweller. The Landlord supports the contention that the Act does not apply to the Tenant’s situation by asserting that the rental unit comes with housekeeping services and the Tenant changed from a monthly rental to a daily rate as he had no intention of being anything but a temporary dweller.
4. The Tenant testified that he had every intention of staying in the unit long term. He had been living on the streets in an abandoned car after he lost his housing with his mother at 1 Massy Square prior to coming to the motel in December 2017. He testified that when he came to the motel in December 2017 he entered into a monthly rate. This changed in March 2018 as he was short on his rent. He states that his intention was always to remain long term.
6. The exemption the Landlord seeks to rely on reads as follows:
- This Act does not apply with respect to,
- (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;
7. The wording of the exemption is interpreted to include two different situations: where the accommodation is intended for the travelling or vacationing public; or where it is in fact only occupied for a seasonal or temporary period. (See: Rogers v. Fisherman’s Cove Tent & Trailer Park Ltd.,  O.J. No 5942 (Ont. Div. Ct.).) In either situation the property itself must be one of the listed types.
14. The Tenant listed several other factors that indicate the parties never intended this to be a short-term vacation stay, but a long-term tenancy. For example, the Tenant did not receive any housekeeping services; the Landlord did not post any Innkeepers Act information in the rental unit; the Tenant was not provided with any toiletries in his room. The Tenant also provided evidence of a notice posted by the Landlord supporting that weekly tenants must provide their own toiletries, and that the Landlord’s do not provide laundry services at all.
15. There is also no supporting evidence that the Landlord charged the Tenant HST, consistent with temporary stay hotel/motel services. The Landlord contends that the fact that the room is furnished supports it being a temporary lodging; however a long term tenancy can exist in a furnished unit as well.
16. Based on the evidence before me, I am satisfied on the balance of probabilities that the parties intended this to be a long-term tenancy and not a temporary motel room for people on vacation at the outset.
17. As stated above, the Landlord has the burden of proving that this unit is exempt from the Act. I find that the Landlord has led insufficient evidence to establish that the parties intended this to be a short term tenancy.
Counsel for the respondent also argued that the hotel rooms occupied over the years by the Hodges family were not "residential premises", to which kind of premises Part IV of the Landlord and Tenant Act applies. He referred to the definition section, s. 1(c) [rep. & sub. 1975 (2nd Sess.), c. 13, s. 12] and argued that the evidence supported the proposition that the rooms constituted "premises occupied for business purposes with living accommodation attached ...", and that by reason of s. 1(c)(iii) the rooms could not constitute "residential premises".
On all of the evidence I cannot agree. I am satisfied that the rooms constituted "residential premises" as they are defined in the Act, and that, although the respondent did indeed engage in some business activities in the rooms, they were indeed "premises used or intended for use for residential purposes" as that phrase is used in s. 1(c)(i).
That leaves for determination the major problem, which is whether there was in existence between the parties to these proceedings a landlord and tenant relationship.
Essentially the facts are that the respondent and his family, as it was constituted from time to time over the years, have lived in the two hotel rooms for well over 15 years. There was at no time any agreement in writing with regard to this occupancy.
The respondent decided, for reasons which at least satisfied him, that it made sense to live in a well-constructed, well- managed hotel. The hotel was willing to provide to Hodges the two rooms which he and his wife ultimately selected. Hodges was charged on a per diem basis a somewhat lower rate than would have been charged to a transient guest. He was apparently generally billed monthly, for a long time, not only for room charges but also for room service, meals, and other sorts of services generally provided to its guest by a hotel. It is to be emphasized that the claim in these proceedings is limited to the amount allegedly owing for the rooms themselves.
There is really very little evidence indeed on the basis of which any meaningful, sensible and firm conclusions can be reached as to what was intended by the parties.
What seems to me to be fairly clear is that what was furnished to Hodges and members of his family was really in no way different from that which any guest at the hotel could reasonably expect to have had furnished to him. Daily maid service was provided and was available, although Hodges himself indicated that he was reluctant to have maids in the rooms at certain times.
Having reviewed again and again all of the factual circumstances of this case, including, but not to the exclusion of others, those elements to which I have made specific and direct reference, it has not been made out in this case that there existed at the material time a landlord and tenant relationship. It seems to me that essentially the only factual circumstance which points in this direction is the length of occupancy of the rooms by Hodges and his family. That is obviously of some importance but the difficulty is that whatever its length, the relationship between the parties was really no different than would have been that same relationship had Hodges' stay in the hotel lasted for a week. I do not and cannot accept that it was ever in the mind of either party to these proceedings that a legal estate of any kind had passed from the applicant to the respondent.
There was what might generally be described as exclusivity of possession but there remained a general, over-all control of the property by the applicant. While it is by no manner or means conclusive or even perhaps particularly important in this case, given the specific argument made on behalf of the applicant, I think, had the parties been asked before litigation became a possibility, both would have agreed that the occupant had absolutely nothing which he was entitled to assign or sublet to anyone else.
I have come to the conclusion on all of the evidence before me that the applicant has not made out its right to proceed under the provisions of Part IV of the Landlord and Tenant Act, and that it has not demonstrated that it was at the material time a "landlord" under the provisions of that statute. In this regard I should emphasize that counsel for the applicant specifically stated that he was not seeking to allege or argue that his client was a "person giving or permitting the occupation of the premises in question" thus qualifying to be considered as a landlord whether or not the applicant was a lessor. Similarly, counsel indicated that he did not wish to adopt the position that Mr. Hodges was an "occupant" and thus a tenant as that word is defined in the Landlord and Tenant Act. The whole case has proceeded and has been argued on both sides on the basis that the question for ultimate determination is whether there was a landlord and tenant relationship, that is, whether there was a lessor and lessee relationship involved between the parties during the period of time which is relevant to these proceedings and to the claim for arrears of rent now presented.
In the result, the applicant's claim must be dismissed with costs.
GRAY J.:-- This is an appeal from the judgment of the Honourable Judge Matthews dated December 19, 1984, granting a writ of possession to the respondent landlord.
The facts are not complicated. The appellant, whom I shall call the tenant, leases a house under a one-year lease extended since 1971, with the last extension terminating September 30, 1984. The landlord did not grant an extension and when the tenant failed to vacate, the landlord applied for a writ of possession.
The premises have been used as a rooming-house which the tenant has managed and the tenant himself lived in the premises from 1969 to 1980. The roomers rent rooms on a weekly basis. In the lease itself, the tenant covenants that the premises will be used for residential purposes and in 1975, an agreement between the parties was made under the Residential Premises Rent Review Act, 1975 (Ont.) (2nd Sess.), c. 12. Rent increases took place under the Residential Tenancies Act, 1979 (Ont.), c. 78.
The learned judge held, "the issue is whether as between the owner of the property and the respondent there is a lease of residential premises bringing into application Part IV of the Landlord and Tenant Act". After referring to s. 1(c)(i) of that Act, which states:
- (c) "residential premises" means,
- (i) any premises used or intended for use for residential purposes ...
- (c) "residential premises" means,
the learned judge said, "I find as a fact that the premises have been used and were intended to be used as a rooming-house and hence do not qualify as residential premises".
The term "residential purposes" relates to the nature of the premises and not to the relationship between the landlord and tenant. This proposition which I accept follows from the majority decision in the Divisional Court in the Matlavik Holdings decision. Anderson J. in that decision referring to what is similar to s. 1(c)(i) of the Act and what is now s. 2, para. 2 of Reg. 547 concluded that in the present factual situation it is necessary to conduct a two-part inquiry; first, to determine if there is a tenancy; and secondly, to determine if the premises are used or intended for use for residential purposes.
In this case, there is certainly a tenancy between the appellant and the respondent even though the roomers themselves are not tenants. When we turn, however, to the second branch of the inquiry, it is clear that the premises are used for residential purposes and the parties, by their dealings over the years have so treated them.
The unreported decision of Judge Carnworth in Re Prucyk and Bay-Gerrard Foods, supra, is an example of a situation wherein mobile home sites were leased for commercial purposes, but Part IV of the Landlord and Tenant Act was held to apply because the agreement was for possession of residential premises.
Holding that Part IV is applicable to the factual situation in this appeal, the appeal from the judgment of the Honourable Judge Matthews is allowed and the said judgment is set aside with costs payable by the respondent landlord to the appellant tenant in this court and on the hearing before Judge Matthews forthwith after assessment thereof.
The applicant submits that the premises were "residential premises" within the meaning of s. 1, definition "residential premises" (a), of the Act. On the other hand, the respondent has claimed that 320 Roncesvalles Avenue is exempt from the residential tenancy provisions of Part IV of the Act. It is the position of the respondent that he falls under the exemption for operating a "tourist home" pursuant to s. 1 "residential premises" (g).
It is the submission of the applicant that the landlord has imposed the status of "hotel or motel" guest on the residents of 320 Roncesvalles Avenue and that this is in contravention of s. 80 of the Act which provides that Part IV applies to tenancies of residential premises despite any agreement or waiver to the contrary.
In order to determine the applicant's entitlement to the relief sought, the court must initially decide whether, on the facts of this case, the respondents are exempt from the application of the Act.
There is not a separate definition of "residential premises" in Part IV of the Act. However, the term "residential premises" is defined under s. 1 of the Act which provides:
- (a) any premises used or intended for use for residential purposes, including accommodation in a boarding house, rooming house or lodging house.
Following this definition, specific exclusions from the Act are listed. The applicable provision states:
- (g) accommodation provided to the travelling and vacationing public in a hotel, motel or motor hotel resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast establishment or farm vacation home.
It is necessary to determine whether the respondent's establishment is excluded from the Act by s. 1 "residential premises" (g).
However, subsequent to the amendments, jurisprudence concluded that the effect of bringing licensees within the definition of "tenancy agreements" in Part IV of the Act rendered the first part of the above inquiry, regarding the nature of the relationship between the parties and their intent, irrelevant. This was articulated in Curtis Property Management v. Rezai (unreported, March 28, 1989, Ont. Dist. Ct.).
The court in Curtis Property Management then set out the following factors to consider when determining whether the premises are for a residential purpose:
- 1. Was the occupation intended to be somewhat permanent, for example, did the "tenant" bring personal items typically found in a home and not a hotel such as stereo equipment, rugs, pictures, lamps etc.?
- 2. Was cooking permitted in the suite?
- 3. Were typical hotel services such as room service available?
- 4. Did the occupant have some measure of control over the suite or could the landlord enter at will?
- 5. Who was responsible for cleaning the suite?
The term "tourist home" was not brought into the Act until the 1987 amendments and is not specifically defined. Accordingly, there is very little case law dealing with it.
In fact one of the only cases to consider s. 1 "residential premises" (g) is 552838 Ontario Ltd. v. London Executives Suites Inc. (unreported, November 19, 1992, Ont. Gen. Div.) [summarized in 36 A.C.W.S. (3d) 1206], where a landlord brought an application for arrears of rent owing on 12 apartment suites. The tenant of the 12 units was successful in claiming an exemption from the Act by arguing that the premises were operating as a "hotel" under s. 1 "residential premises" (g). In coming to its conclusion that the Act did not apply, the court examined the nature of the units and found that it was intended that the fully furnished suites, which contained kitchen facilities, would be used "as a home away from home on a relatively short-term basis" (at p. 7). For each of the buildings in question the court noted the following characteristics: suites included towels, dishes, housekeeping, a 24-hour switchboard, access to indoor parking and to their particular suite, and charges were on a per diem rate. In addition, each building had, either in it or in a nearby building, a front desk for checking in and out and a telephone service.
As the term "tourist home" is not specifically defined in the Act or the jurisprudence, the intent of the legislation cannot be clearly discerned from the language of the enactment and recourse must be made to other sources. However, reference to the parliamentary debates at the time Bill 10 was introduced provides little insight as to the definition of "tourist home". Rather, the debates focused on the importance of bringing rooming, lodging and boarding houses within the purview of the Act. The Act was amended in 1987 to bring those types of accommodation in s. 1 "residential premises" (a). Accordingly, it is useful to contrast the purpose of including those terms, also undefined in the Act, with the exclusions in s. 1 "residential premises" (g). Before doing so, however, I will first review the traditional sources of interpretation.