Vacant Possession

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-26
CLNP Page ID:	309
Page Categories:	[Payment of Rent (LTB)‎], [Hearing Process (LTB)], [Contract Law, Leases, & Sub-Letting (LTB)], [Personal Use Application (LTB)], [Interference of Reasonable Enjoyment (LTB)‎]
Citation:	Vacant Possession, CLNP 309, <https://rvt.link/6b>, retrieved on 2024-04-26
Editor:	Sharvey
Last Updated:	2023/09/17

Residential Tenancies Act, 2006

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.

...

39 A landlord shall not recover possession of a rental unit subject to a tenancy unless,

(a) the tenant has vacated or abandoned the unit; or

(b) an order of the Board evicting the tenant has authorized the possession. 2006, c. 17, s. 39.

40 No landlord shall, without legal process, seize a tenant’s property for default in the payment of rent or for the breach of any other obligation of the tenant. 2006, c. 17, s. 40.

...

87 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay arrears of rent if,

(a) the tenant or former tenant did not pay rent lawfully required under the tenancy agreement; and

(b) in the case of a tenant or former tenant no longer in possession of the rental unit, the tenant or former tenant ceased to be in possession on or after the day subsection 18 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force. 2020, c. 16, Sched. 4, s. 18 (1).^{(Date In Force: September 1, 2021)}

(1.1) An application under subsection (1) may be made,

(a) while the tenant is in possession of the rental unit; or

(b) no later than one year after the tenant or former tenant ceased to be in possession of the rental unit. 2020, c. 16, Sched. 4, s. 18 (1).

134 (1) Unless otherwise prescribed, no landlord shall, directly or indirectly, with respect to any rental unit,

(a) collect or require or attempt to collect or require from a tenant, prospective tenant or former tenant of the rental unit a fee, premium, commission, bonus, penalty, key deposit or other like amount of money whether or not the money is refundable;

(b) require or attempt to require a tenant or prospective tenant to pay any consideration for goods or services as a condition for granting the tenancy or continuing to permit occupancy of a rental unit if that consideration is in addition to the rent the tenant is lawfully required to pay to the landlord; or

(c) rent any portion of the rental unit for a rent which, together with all other rents payable for all other portions of the rental unit, is a sum that is greater than the rent the landlord may lawfully charge for the rental unit. 2006, c. 17, s. 134 (1); 2017, c. 13, s. 24 (1).

(1.1) No landlord shall, directly or indirectly, with respect to any rental unit, collect or require or attempt to collect or require from a former tenant of the rental unit any amount of money purporting to be rent in respect of,

(a) any period after the tenancy has terminated and the tenant has vacated the rental unit; or

(b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit. 2017, c. 13, s. 24 (2).

Minas v. Adler, 2022 ONSC 6706 (CanLII)

[63] The Landlords submit that the Member’s interpretation of the term “vacant” is not consistent with the typical meaning ascribed to that word, that is “being empty” or some derivative of that notion. Because the Landlords had moved back into the premises, the Member could not have found the premises to be “vacant”.

[64] The Landlords further submit that punitive remedies short of recovered possession are available to the Board in situations where a landlord illegally terminates a tenancy and takes possession of a rental unit. As such, the Landlord’s suggested interpretation would not leave the Board without the ability to impose a deterrent upon nefarious landlords.

[65] I disagree with this submission.

[66] First, the term “vacant” must be “read in [its] entire context, in [its] grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". As noted above, one of the purposes of the RTA is to “to provide protection for residential tenants from unlawful rent increases and unlawful evictions”. To read “vacant” in a literal or absolute sense, as was submitted by the Landlords, would permit landlords to profit from illegally evicting tenants. Indeed, one can easily imagine a situation where, in a tight rental market, a landlord could illegally end a tenancy and then move into the unit. The tenant in this example could be rendered homeless as a result of the landlord’s illegal actions and the Board would have no ability to give possession of the rental unit back to the blameless tenant. This result runs contrary to the purposes of the RTA which include protecting tenants from unlawful convictions. The Landlords’ suggested interpretation of the term “vacant” in s. 31(3) of the RTA cannot, therefore, be accepted. Rather, the term “vacant” must exclude situations where a landlord moves into a rental unit after having illegally terminated an otherwise legal tenancy. The Member was correct in making this finding.

[67] As for the ACTO’s submission that “vacant” ought to be interpreted so as to exclude situations where a landlord illegally terminates a tenancy and then rents the premises to a third party, I decline to deal with this issue as it does not arise on the facts before us.

[68] This ground of appeal is therefore dismissed.

SWT-04685-17 (Re), 2017 CanLII 60504 (ON LTB)

9. In Musilla v. Avcan Management Inc., the Ontario Court of Appeal examined the proper interpretation of subsection 107(1) of the Act.[1] In Musilla, the parties entered into an agreement to rent an apartment for one year and the tenant provided the landlord with a deposit equal to one month’s rent. Six weeks before the tenant was to take possession, she informed the landlord that she would not proceed with the rental and asked for the return of her deposit. The landlord stated that it was prepared to give the tenant possession of the apartment and refused to return the deposit. The landlord re-rented the apartment two months after the tenant was to take possession. The tenant applied to the Landlord and Tenant Board (the ‘Board’) for a return of the deposit, relying on subsection 107(1) of the Act. The application was dismissed and the Divisional Court affirmed that decision. The tenant appealed.

10. The Divisional Court found that upon acceptance of the tenant’s rental application, a binding agreement to rent the unit was created between the parties. That Court held that subsection 107(1) of the Act requires the landlord to return a rental deposit where the failure to provide vacant possession is due to the refusal or inability of the landlord. In situations where a binding agreement to rent has been reached and the tenant then repudiates the agreement, the tenant is not entitled to return of the deposit pursuant to subsection 107(1) of the Act.

11. The Court of Appeal agreed that subsection 107(1) of the Act should not apply where a landlord has done everything to provide possession, but the tenant refuses to take possession. However, the Court added that should the landlord be able to re-rent the unit without any loss of income, the landlord is not entitled to retain the deposit:

13. Sections 105(1) and 106(1) of the Act provide that a landlord may only take a deposit as security against the payment of the last month's rent. The landlord may not take a deposit to secure any other obligation. Thus, if a tenant breaches a tenancy agreement and the landlord, in accordance with its obligation to mitigate its damages, is able to re-rent the premises without suffering any loss of rent, the landlord is not entitled to retain the rent deposit. The landlord cannot realize double payment by use of a deposit, nor can it apply the funds to any other purpose.[2]

12. In the present case, although the Tenant applied to rent the unit for the occupation of his brother’s family, he was the Tenant on the application and was entitled to move into the rental unit himself as of December 15, 2016. All essential elements of the contract had been established as of the date that the Landlord accepted his rental application. As a result, while the Tenant never signed the written tenancy agreement provided with his acceptance letter, I find that a tenancy agreement was nonetheless created between the parties upon the Landlord’s acceptance of his application. While it is unfortunate that M.A. and his family were not able to move into the rental unit on December 15, 2016, their inability to do so was not caused by any act or omission by the Landlord. The Landlord fulfilled its duty under the binding agreement with the Tenant by providing the unit for possession as of the agreed date, but the Tenant unilaterally repudiated the agreement.

TEL-82549-17 (Re), 2017 CanLII 93931 (ON LTB)

5. The Occupants hired a moving truck for several hours, they had help from friends to move their belongings, they signed a new lease for a new apartment and they left the rental unit. The fact that they left behind some garbage and unwanted items does not mean that they did not completely move out.

6. The second dispute between the parties is when, if ever, the Occupants returned the keys to the Landlord.

17. The fact that the Occupants slid the keys under the door means that they no longer were able to gain access to the unit. That is the very essence of giving up vacant possession.

SOT-11554-11 (Re), 2011 CanLII 13363 (ON LTB)

9. In Benedetto v. Dineen, (2006) CarswellOnt 3233 the Court held that the only proposition for the Board to consider is whether vacant possession occurred. In Benedetto v. Dineen four prospective tenants provide a rental deposit to a landlord who told them the deposit was not refundable. The Tenants decided not to rent because they could not find guarantors as required by the landlord. The Board found that vacant possession had not been given to the tenants. The court found that no lease was signed and vacant possession had not been given.

10. In Musilla v. Avcan Management (2010) ONSC 5425 the court found a tenancy agreement had been entered into when the rental application was accepted by the Landlord. The essential terms of the agreement were set out in the rental application. The Musilla v. Avcan Management case resembles the recent decision of the court in Opara v. Cook (2008) O.J. No. 1934 (Div Ct). There the Court upheld a decision of the Board dismissing a tenant’s application for a refund because the Court observed that the tenancy agreement came into effect the day the parties reached an agreement on the rental unit and the deposit being paid.

11. Having regard to the words set out in section 107 (1) it is noted that the landlord is to return the deposit if vacant possession is “not given” to the prospective tenant. I interpret the words “not given” to mean that it is the refusal or inability of the landlord to provide the premises that triggers the obligation to return the deposit to the prospective Tenant.

12. In this case, the Landlords refused to give vacant possession to the Tenant because he had not satisfied them of the obligation to changeover the utility account. What distinguishes this case from Benedetto v. Dineen, Musilla v. Avcan Management Inc. and Opara v. Cook is the superintendent’s interference with the utility provider. For some reason the superintendent felt it appropriate to share with the utility the information relayed to the Landlords by way of the rental application despite the fact that the rental application clearly stated that the information contained would be kept confidential. I have no doubt that had the superintendent simply confirmed to the utility company that the prospective Tenant intended to occupy the rental unit the utilities would have been connected in his name. With respect to the superintendent’s argument that she routinely shares rental application information with the utility provider because she believes she must do so does not make it legal or appropriate. Absent consent of the Tenant, the superintendent is under no obligation to share information with the utility provider. Indeed mandatory privacy legislation now in effect in the Province of Ontario makes it unlawful.

13. Having determined that the superintendent interfered with the Tenant’s effort to perform his obligation under the contract, making it financially impossible to change the utilities over into his own name, I can not find that the Landlords were willing to give vacant possession to the Tenant. On the contrary, it was the Landlords position that the Tenant was only entitled to the key once he had performed his obligation under the contract. The Landlords are not entitled to hold the Tenant bound to his agreement and then interfere to the extent that the Tenant is unable to meet his obligation. The Landlords were entitled to keep the deposit only if they offered vacant possession which in this case, they did not.

14. While I appreciate that the Landlords believed they were being prudent in their business dealing with the Tenant because they did not want to give possession of their rental unit to a Tenant who had not connected the power, or worse, they did not want to “foot” the Tenant’s power bill. However, this prudence took precedence over the Landlords statutory duty to provide the Tenant with vacant possession. I find that the Landlords refused to give the Tenant vacant possession of the rental unit.

TSL-05299-10 (Re), 2010 CanLII 76078 (ON LTB)

14. If the meaning of a word is not statutorily defined, or is a legal “term of art”, words should be given their plain meaning (i.e. dictionary meaning).

TSL-74881-16-AM (Re), 2016 CanLII 71292 (ON LTB)

5. D.L.S undertakes to hold the monies paid in accordance with paragraph 2 (iii) above in Trust and to release such monies to A.D.L when vacant possession of the unit is provided to the Landlords on or before December 1, 2016.

(i) Vacant possession means delivery of the keys to the unit to D.L.S together with instructions that D.L.S advise the Landlords’ solicitor that vacant possession has been surrendered;

(ii) However, D.L.S agrees to otherwise return the balance, in the sum of $3,000.00, to the Landlords’ solicitor if vacant possession is not provided in the above-prescribed manner.

TSL-61393-15 (Re), 2015 CanLII 77364 (ON LTB)

19. The issue with respect to “possession” arises because of the wording of s. 87(1) of the Act which says: A landlord may apply to the Board for an order for the payment of arrears of rent if,

(a) the tenant has not paid rent lawfully required under the tenancy agreement; and

(b) the tenant is in possession of the rental unit.

[Emphasis added.]

21. So this concept of being in possession not only dictates whether or not the landlord can apply to the Board for an order requiring the tenant to pay money, but it also is tied to the landlord’s right to an order for daily compensation for use and occupation of a rental unit.

22. So the question is what does the phrase “in possession” mean? The leading and definitive case on the meaning of this phrase in the Act is found in the Court of Appeal’s decision in 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (ON CA) (‘Bakker’). It says (at paragraphs 18 to 22):

[18]…I think the requirement that the tenant be "in possession of the rental unit" at the time of the application reflects a determination that rent arrears disputes can be resolved efficiently and fairly through the Tribunal where the tenant at the time of the application continues to have some connection with the rental unit and, therefore, some relationship with the landlord. Situations where that connection has been severed and the relationship gone are best resolved through the more formal court processes.

[19] Some further assistance in defining "tenant in possession" is found by an examination of s. 86(2). That subsection provides that a landlord may be compensated for "the use and occupation" of a rental unit after notice of termination of the lease. A landlord can only be compensated, however, if the tenant is "in possession of the rental unit" when the landlord's application is made.This suggests that a "tenant in possession" is a person who was using or occupying the rental unit at the time of the application but does not necessarily indicate that the phrase is limited to users and occupiers.

[20] Possession is a difficult concept to define. Both in common and legal parlance, it connotes some form of control over the thing said to be possessed: e.g. D. Dukelow, B. Nuse, The Dictionary of Canadian Law 2nd ed., (1995) Carswell at p. 916; The Shorter Oxford English Dictionary, Vol. II (1973) p. 1635. Clearly, possession in s. 86(1)(b) is not limited to immediate physical control. For example, a tenant who locks up a rental unit and leaves on an extended vacation, continues to exercise sufficient control over that rental unit so as to qualify as a "tenant in possession" for the purposes of s. 86(1)(b). In my view, possession of a rental unit refers to some form of control over that unit as demonstrated by factors such as access to, use of, or occupation of the unit.

[21] There will be cases, although I would not think a great many, where a determination of whether the tenant was "in possession of the rental unit" at the time of the application will raise a difficult issue. In those cases, the Tribunal will have to decide, based on the evidence, whether there is a sufficient connection between the rental unit and the tenant to permit a finding that the tenant was "in possession" of that rental unit.

[22] In this case, there was no connection between Bakker and the rental unit at the time the s. 86 application was commenced. Bakker exercised no control over that unit. He had unequivocally, completely, and permanently vacated the unit more than two years before the application.

[Emphasis added.]

23. I would agree with the Tenant that just because a tenant does not return the keys does not necessarily mean a tenant will be found to be “in possession” for the purposes of the Act. I would also agree that it is not unusual for tenants to move out of a rental unit and leave belongings behind so the fact that some items were left in the rental unit is not determinative either.

24. Rather what Bakker directs the Board to do is to examine the evidence to determine the degree of connection with and the extent of control over the unit that the Tenant exercises.

TST-82404-17 (Re), 2017 CanLII 60127 (ON LTB)

21. Subsection 107(1) of the Act reads:

“A landlord shall repay the amount received as a rent deposit in respect of a rental unit if vacant possession is not given to the prospective tenant”.

22. Subsection 13(2) of the Act also provides that a tenancy agreement takes effect when the tenant is entitled to occupy a rental unit, whether or not the tenant actually occupies the unit.

23. Subsection 21(1) contemplates that a tenancy agreement “…means a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit.”

24. In my view, the facts before me disclose the existence of a contract between the Tenant and the Landlord. A contract is a legally binding agreement between two or more persons for a particular purpose. To be valid, a contract requires an offer, an acceptance of the offer and consideration.

25. What occurred here was a legally binding agreement between the parties. The application – completed by the Tenant – was an offer to lease the unit. The application itself includes the written provision that “…upon acceptance of the Rental Application by the Landlord, I/We shall hereby be bound to a Tenancy Agreement with the Landlord…”. The offer to lease was accepted by the Landlord on February 1, 2017 for a term from February 1, 2017 to January 31, 2018. Consideration was provided by the Tenant in form of payment for first and last month’s rent in the amount of $1.057.00.

26. Pursuant to this contract, at the start of the lease on February 1, 2017, the Landlord stood ready to provide its reciprocal consideration: to deliver vacant possession of the unit to the Tenant (in exchange for the payment of rent for February 2017). No evidence was presented that the Landlord, at any time, prevented the Tenant from taking possession of the unit or that the Landlord did not deliver vacant possession of the unit to the Tenant.

27. Based upon my finding above that there was a legally binding agreement between the parties – a tenancy agreement, the Landlord is allowed to retain the $1,057.00 paid by the Tenant for the rent for February 2017. While the Tenant repudiated the contract with the Landlord on February 6, 2017, the term of the binding lease had already begun. Faced with the Tenant’s position that he was not willing to continue with his obligations under the contract, the Landlord mitigated its losses by leasing the unit effective March 1, 2017.

28. The Landlord here has retained $1,057.00 for the monthly rent for the unit for February 2017 further to the legally binding contract between the Tenant and the Landlord. I am not satisfied, on balance of probabilities, that the Landlord has collected or retained money illegally. It was the Tenant’s act in repudiating the contract that prevented him from taking possession of the unit, not any action by the Landlord. This finding is consistent with the conclusion of the Ontario Divisional Court in Musilla v. Avcan Management Inc. (2010) ONSC 5425.

29. The Tenant’s application will be dismissed.

SWL-87631-16-RV (Re), 2016 CanLII 72146 (ON LTB)

6. So the legal question is what does the phrase “in possession” mean? The leading and definitive case on the meaning of this phrase in the Act is found in the Court of Appeal’s decision in 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (ON CA) (‘Bakker’). It says (at paragraphs 18 to 22):

[18]…I think the requirement that the tenant be "in possession of the rental unit" at the time of the application reflects a determination that rent arrears disputes can be resolved efficiently and fairly through the Tribunal where the tenant at the time of the application continues to have some connection with the rental unit and, therefore, some relationship with the landlord. Situations where that connection has been severed and the relationship gone are best resolved through the more formal court processes.

[19] Some further assistance in defining "tenant in possession" is found by an examination of s. 86(2). That subsection provides that a landlord may be compensated for "the use and occupation" of a rental unit after notice of termination of the lease. A landlord can only be compensated, however, if the tenant is "in possession of the rental unit" when the landlord's application is made. This suggests that a "tenant in possession" is a person who was using or occupying the rental unit at the time of the application but does not necessarily indicate that the phrase is limited to users and occupiers.

[20] Possession is a difficult concept to define. Both in common and legal parlance, it connotes some form of control over the thing said to be possessed: e.g. D. Dukelow, B. Nuse, The Dictionary of Canadian Law 2nd ed., (1995) Carswell at p. 916; The Shorter Oxford English Dictionary, Vol. II (1973) p. 1635. Clearly, possession in s. 86(1)(b) is not limited to immediate physical control. For example, a tenant who locks up a rental unit and leaves on an extended vacation, continues to exercise sufficient control over that rental unit so as to qualify as a "tenant in possession" for the purposes of s. 86(1)(b). In my view, possession of a rental unit refers to some form of control over that unit as demonstrated by factors such as access to, use of, or occupation of the unit.

[21] There will be cases, although I would not think a great many, where a determination of whether the tenant was "in possession of the rental unit" at the time of the application will raise a difficult issue. In those cases, the Tribunal will have to decide, based on the evidence, whether there is a sufficient connection between the rental unit and the tenant to permit a finding that the tenant was "in possession" of that rental unit.

[22] In this case, there was no connection between Bakker and the rental unit at the time the s. 86 application was commenced. Bakker exercised no control over that unit. He had unequivocally, completely, and permanently vacated the unit more than two years before the application.

[Emphasis added.]

7. As can be seen from this quote the question of possession is a factual one to be determined on a case by case basis. The Board is to look at each case and determine what sort of control the Requester exercised over the unit at the time the application was filed, whether or not he had access to it, used it for any purpose, or otherwise had a connection to it.

8. Given the evidence and the submissions here, I am satisfied that the Requester was not in possession of the rental unit on March 30, 2016, when this application was filed.