Termination (Tenant in Jail)
2. The Tenant is incarcerated. The Landlord provided copy of a Canada Border Services Agency media release of April 20, 2012 indicating that police apprended the Tenant on that date and he was in police custody. The release states that the Tenant is inadmissible to Canada “for serious criminality for being convicted of possession of a controlled substance for the purpose of trafficking and obstruction of a peace officer.”
3. The Landlord also provided a news release dated April 21, 2012 in which the Tenant is noted as being listed among the “Top 10 Most Wanted…for being in the country illegally.” The article goes on to state that “D was arrested April 12 after he went underground after failing to show up for deportation.”
9. The media articles provided by the Landlord clearly indicate that the Tenant has been convicted of serious crimes and is pending deportation. There is no indication that he will be released and returned to a position where he will be able to resume the tenancy, given that he is pending deportation and will no longer reside in Canada.
10. Unauthorized occupancy occurs when a tenant transfers occupancy of their rental unit to another person without complying with the assignment provisions of section 95 of the Act. Under the circumstances where the tenancy agreement has essentially become frustrated and the contract can no longer continue, and where the Landlord has not entered into a new agreement/or permitted the Tenant to assign the tenancy, the tenancy has not been assigned in compliance with the Act; and therefore I find that the occupants are unauthorized.
11. For the reasons contained herein, the Landlord’s application is allowed.
1. On or about May 31, 2018 the Tenant stabbed another tenant outside on the grounds of the residential complex. The injured tenant called for help and the Tenant went back inside to his rental unit. Shortly thereafter, another tenant knocked on the door of the rental unit. When the Tenant opened the door he stabbed that tenant who then ran away. The Tenant followed the fleeing tenant and stabbed him further in the back.
2. I am satisfied that the Tenant rental unit has committed multiple illegal acts in the residential complex and seriously impaired the safety of other persons in the residential complex.
3. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. The Tenant is incarcerated but is aware of these proceedings. On August 30, 2018, at a pre-trial of the charges the Tenant indicated he was going to plead guilty. Sentencing is scheduled for October 23, 2018. The Detective says the likely sentence will be a custodial one for two to three years. The Landlord is unaware of any circumstances that would justify relief from eviction. Under the circumstances, relief is not warranted.
5. The Tenant essentially took the position that because he was in jail and unable to live in the rental unit he should not be responsible for the rent. As I tried to explain at the hearing that is not how the law works. If a tenant goes on vacation for a month the tenant is not excused from paying the rent. The same is true if a tenant is incarcerated. This is because whether or not the tenant stays overnight in the unit or not is irrelevant to the contractual obligations of the parties under a residential lease. A tenancy agreement is essentially defined as the right to occupy in return for the payment of rent. Although the Tenant could not physically occupy the unit, he nonetheless had the right to do so and therefore his obligation to pay rent continued.
3. On May 27, 2016, the Tenant returned to his unit, accompanied by the police, to retrieve his belongings, including his medications. The Tenant states that, upon arriving at the unit, he saw another tenant of the complex (the tenant with whom he had the altercation) living in his unit and observed that all his belongings had been removed from the unit.
4. The tenant who was occupying the unit informed the police that the Tenant had been evicted and the Landlord had rented the unit to her. The Tenant claims that, at this point, the police seized his keys to the unit and gave them to the other tenant. The Tenant then left the unit and has not returned.
7. A tenancy can terminate in any one of three ways: notice of termination, agreement to terminate or by an order of the Board. Pursuant to section 37 of the Residential Tenancies Act, 2006 (the 'Act'), a tenancy can only be terminated in accordance with the Act.
8. Here, there is no evidence before me that the tenancy between the Tenant and the Landlord was terminated via any of the three ways permitted by the Act. The Act does not allow for a landlord to unilaterally retake possession of a unit because a tenant is incarcerated or based on a reasonable or genuinely held belief that a tenant has abandoned a unit. Indeed, section 79 of the Act states: “If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy.”
12. In the absence of evidence that the tenancy between the parties was terminated in accordance with the Act, the tenancy was not lawfully terminated and the Tenant was in possession of the unit as at May 27, 2016 and at least until June 30, 2016, up until when the Tenant claims the rent was paid.
22. The Board has the authority, pursuant to subsection 31(1)(f) of the Act, to award damages for pain and suffering. The Divisional Court confirmed this jurisdiction in Mejia v. Cargini,  O.J. No. 437 (Ont. Div Ct.) in circumstances where the damages claimed are the result of a breach of the landlord’s contractual or statutory obligations.
It is ordered that:
1. The Landlord shall pay to the Landlord and Tenant Board an administrative fine in the amount of $500.00 by July 8, 2016.
2. The tenancy between the Landlord and the Tenant is terminated, effective June 30, 2016.
3. The Landlord shall pay to the Tenant $11,325.00. This represents the reasonable costs that the Tenant has incurred or will incur in replacing property that was illegally disposed of by the Landlord.
4. The Landlord shall pay $523.95 to the Tenant. This represents the money illegally collected and illegally retained by the Landlord.
5. The Landlord shall pay $500.00, to the Tenant, for damages for pain and suffering.
6. The total amount the Landlord owes to the Tenant is $12,348.95.