Notice Law - N6 (Committed an Illegal act, Trade, or Business)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-27
CLNP Page ID:	533
Page Categories:	Illegal Act & Impairment of Safety (LTB)
Citation:	Notice Law - N6 (Committed an Illegal act, Trade, or Business), CLNP 533, <https://rvt.link/a1>, retrieved on 2024-04-27
Editor:	MKent
Last Updated:	2023/11/28

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

61 (1) A landlord may give a tenant notice of termination of the tenancy if the tenant or another occupant of the rental unit commits an illegal act or carries on an illegal trade, business or occupation or permits a person to do so in the rental unit or the residential complex.

(2) A notice of termination under this section shall set out the grounds for termination and shall provide a termination date not earlier than,

(a) the 10th day after the notice is given, in the case of a notice grounded on an illegal act, trade, business or occupation involving,

(i) the production of an illegal drug,

(ii) the trafficking in an illegal drug, or

(iii) the possession of an illegal drug for the purposes of trafficking; or

(b) the 20th day after the notice is given, in all other cases.

(3) In this section,

“illegal drug” means a controlled substance or precursor as those terms are defined in the Controlled Drugs and Substances Act (Canada); (“drogue illicite”)

“possession” has the same meaning as in the Controlled Drugs and Substances Act (Canada); (“possession”)

“production” means, with respect to an illegal drug, to produce the drug within the meaning of the Controlled Drugs and Substances Act (Canada); (“production”)

“trafficking” means, with respect to an illegal drug, to traffic in the drug within the meaning of the Controlled Drugs and Substances Act (Canada). (“trafic”)

TSL-80995-17 (Re), 2017 CanLII 28549 (ON LTB)

1. This application concerns a unit on the ground floor of a building in the Kensignton Market area of Toronto.

2. The Landlord’s position is that the unit is situated in a building which is zoned commercial pursuant to City of Toronto Zoning By-law 569 2013 (as amended) (“the bylaw”) (which was tendered into evidence) and is being illegally used as a residence. This illegal use constitutes an illegal act for the purposes of s.61(1) of the Residential Tenancies Act, 2006 (“the Act”)

3. The Tenant’s position is that he currently lives in the unit as a residence and that the unit has been used in this manner for the past 6 years. The Tenant has claimed he has done nothing to change the unit’s character and therefore, he has not committed an illegal act for the purposes of the Act.

26. Based upon the totality of the evidence presented, I am not persuaded that the Tenant’s residence in the commercial building constitutes a sufficiently serious violation of the law so as to constitute an “illegal act” for the purposes of s.61(1).

28. Further, in my view, this is technical, rather than substantive violation of the by-law. The Tenant is indeed living in a commercially zoned space; I do not see the Tenant’s actions, per se, to be serious enough to come within the meaning of “illegal act” for the purposes of the Act.

31. I have reviewed the case law provided by the Landlord, including the decision of Member Ruth Carey in TEL-70371-16, which concluded that “…continuously breaching the City’s zoning by-law is an illegal act within the meaning of subsection 61(1).” Member Carey’s decision is not binding on me and I do not find it persuasive in this context, particularly as it is distinguishable on its facts.

TSL-74899-16 (Re), 2016 CanLII 71613 (ON LTB)

7. As noted above, Landlord 1 presented oral and video evidence to show the Tenant smoking within the residential complex.

8. Landlord 1’s position was that the Tenant’s smoking with the residential complex constitutes an “illegal act” for the purposes of a notice of termination pursuant to subsection 61(1) of the Residential Tenancies Act, 2006 (the ‘Act’).

9. The Board’s Interpretation Guideline 9 on illegal acts, which is not binding but which we are opting to follow, suggests an interpretation of “illegal act” in subsection 61(1) limited to “…a serious violation of a federal provincial or municipal law” [emphasis added].

10. In our view, the Landlords have not proven, on a balance of probabilities, that the Tenant has committed a serious violation of the law so as to constitute an “illegal act” for the purposes of subsection 61(1) of the Act.

SWL-99232-17 (Re), 2017 CanLII 28683 (ON LTB)

27. A Notice to End the Tenancy for Illegal Acts (Form N6) was served on the Tenants on January 11, 2017. It alleges the Tenants have tampered with the hydro meter, that three or four women who frequent the rental unit have been seen carrying illegal knives, and that the Tenants are operating an illegal rooming house business.

32. The evidence about an illegal rooming house was also detailed in the N5 section above, under the Overcrowding subheading. In that section, it is outlined that Landlord's witness D.W. testified that the Tenants had presented themselves as “landlords” to various social services agencies in order to get housing funds added to those clients’ social services benefits, and that the Tenants were presumably collecting “rent” from some of the people they allowed to stay in their rental unit.

33. With respect to the allegations in the N6 notice, I find that the Tenants have committed an illegal act in the rental unit by tampering with the hydro meter and by operating an illegal rooming house.

34. Section 61 of the Act sets out that a landlord may serve a notice of termination of the tenancy if the tenant commits an illegal act in the residential complex. While the term "illegal" is not defined in the Act, Interpretation Guideline 9 outlines that an illegal act would include a serious violation of a federal, provincial or municipal law.

35. The courts have determined that an illegal act will be serious if it has the potential to affect the character of the premises or to disturb the reasonable enjoyment of the landlord or other tenants (Samuel Property Management Ltd. v. Nicholson (2002), 2002 CanLII 45065 (ON CA), 61 O.R. (3d) 470 (C.A.), at paragraph 28, citing Swansea Village Co-operative v. Balcerzak (1988), 1988 CanLII 4844 (ON SC), 63 O.R. (2d) 741 at 745 (Div. Ct.)).

36. In this case, the Landlord has asserted that three separate aspects of the Tenants’ conduct should each be considered an illegal act: tampering with the hydro meter, carrying weapons and permitting others to carry weapons in the residential complex, and running an illegal rooming house business.

37. I find that tampering with the hydro meter is a serious illegal act because it endangered the safety of the residents of the rental unit and significantly affected the Landlord because she had to arrange and pay for an electrical inspection and reinstallation of the meter.

38. While I believe that Tenant H.D. had a machete in his possession in the rental unit, and that he brandished it at Landlord's witness D.W., I am not satisfied that this act was serious enough to warrant termination of the tenancy. I also find that the Tenants cannot be held responsible for the actions of a woman sleeping in the neighbours’ driveway.

39. The Tenants were operating an illegal rooming house in the rental unit by falsely holding themselves out as the Landlords of the rental unit and charging “rent” to occupy premises that the Tenants do not own. By doing so, the Tenants have committed an illegal act, which I find is serious because it has disturbed the Landlord’s reasonable enjoyment due to the complaints the Landlord received from the neighbours about the constant changeover of guests and occupants from the rental unit. In addition, I find that the character of the residential complex has been negatively affected by the Tenants allowing such a high number of people to come and go from the unit, as evidenced by the neighbours’ complaints.