Defining a Landlord

Tremblay v. Ogunfeibo, 2019 ONSC 7423 (CanLII)]

[4] The parties both resided in a building that consists of eight rental units. The building is owned by a landlord who is not a party to this proceeding. Ms. Tremblay rented two units from the landlord. She lived in one of the units. The second unit consists of two bedrooms, a bathroom, a common area, and a kitchen.

[5] Since 2016, Mr. Ogunfeibo has rented from Ms. Tremblay one of the two bedrooms in the second unit with shared use of the kitchen, common area, and bathroom. Initially, Mr. Ogunfeibo had a roommate who rented the other bedroom in the unit. After the roommate left, Ms. Tremblay has rented the room on a short-term basis at times. She herself does not live in the unit.

[40] Mr. Ogunfeibo is again challenging his eviction at the board and claims that the landlord and Ms. Tremblay colluded to evict him unlawfully. I am not to be taken to be prejudging that ongoing proceeding. However, I do not see the fact that the landlord may have rights against an unauthorized subtenant as undermining the point that the Act applies to the relationship between the tenant, in the position of Ms. Tremblay, and a person who rents from her in the circumstances of this case. If others are able to assert superior rights, then the outcome can be determined by the board on an analysis of each of the relationships. Specific rights set out in s. 97 in favour of tenants who sublet and their subtenants may or may not be available where a proper subtenancy is not created as defined in s. 2(2). Moreover, if a tenant is found to have misled someone as to her capacity to rent the premises, that too may have legal consequences. The board is instructed by s. 202 of the Act to “ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit”. With this mandate, the board is well able to sort through the complexities of modern commerce to separate appropriate and necessary structure from deliberate or abusive misconduct.

[41] In my view, finding that the Act applies to the relationship between Ms. Tremblay and Mr. Ogunfeibo as landlord and tenant is consistent with the wording of the Act and its remedial purpose. It follows that Ms. Tremblay had no right to evict Mr. Ogunfeibo by self-help on October 1, 2018 as she did. Moreover, her conduct was particularly egregious as she had previously submitted her issues to the board for resolution. Evicting Mr. Ogunfeibo while they were waiting for the board hearing in a proceeding that she herself had commenced was high-handed to say the least.

[42] Therefore, while the Board erred in its application of the subtenancy provisions of the Act, this is not an appropriate case to set aside the decision. Given the evidence before the Board and the definitions of landlord and tenant, the Board’s remedial order should stand. The appeal is therefore dismissed.

Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII)

[7] The definition of “landlord” in the Act, however, is not restricted to the owner of a rental unit and it clearly contemplates that there may be more than one “landlord”. Section 2 of the Act provides in part: “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….[emphasis added]

[8] Where the premises are owned by a corporation, the issue is whether the sole shareholder and officer of that corporation may also come within the definition of “landlord” as a “person who permits occupancy of a rental unit”. In this case, the sole shareholder and officer is clearly the directing mind of the corporate owner and is therefore a “landlord” within the definition of the Act as the person who permits occupancy of the unit. Whether another individual is “a person who permits occupancy of a rental unit” will depend upon the facts, including particularly whether the person has the ultimate authority to permit occupancy.

[10] Section 202 provides: In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.

[13] Furthermore, by its language, s. 202 obligates the Board to ascertain the true substance of transactions, activities and the good faith of the parties when making findings on an application. It allows the Board to disregard the separate corporate existence of the parties to the transaction in doing so. These are matters that are relevant to an enquiry under s.48. As a result, we are satisfied that s. 202 is relevant to the determination of an application under s. 48 of the Act.