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

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.