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[[Category:Landlord Tenant]]
[[Category:Interference of Reasonable Enjoyment (LTB)]]
[[Category:Notices of Entry (LTB)]]
[[Category:Trespass to Property]]


==[https://www.ontario.ca/laws/statute/90t21 Trespass to Property Act, R.S.O. 1990, c. T.21]==
{{Citation:
| categories = [Interference of Reasonable Enjoyment (LTB)], [Notices of Entry (LTB)]
| shortlink = https://rvt.link/ap
}}
 
==Trespass to Property Act, R.S.O. 1990, c. T.21==


1 (1) In this Act,
1 (1) In this Act,
Line 30: Line 37:
:(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail.  R.S.O. 1990, c. T.21, s. 9 (3).
:(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail.  R.S.O. 1990, c. T.21, s. 9 (3).


==[http://canlii.ca/t/h4tf7 Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)]==
<ref name="TPA">Trespass to Property Act, R.S.O. 1990, c. T.21, <https://www.ontario.ca/laws/statute/90t21>, retrieved 2024-01-31</ref>
==Substitute Decisions Act, 1992, S.O. 1992, c. 30<ref name="SDA"/>==
 
6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.  1992, c. 30, s. 6.
 
...
 
31 (1) A guardian of property has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will.  1992, c. 30, s. 31 (1).
 
:(2) Repealed: 1996, c. 2, s. 19.
 
:(3) The guardian’s powers are subject to this Act and to any conditions imposed by the court.  1992, c. 30, s. 31 (3).
 
<ref name="SDA">Substitute Decisions Act, 1992, S.O. 1992, c. 30, <https://www.ontario.ca/laws/statute/92s30#BK42>, retrieved 2024-01-31</ref>
==Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)<ref name="Cunningham"/>==
 
This is an application by the tenant for an abatement of rent under s. 113(1)(f) of the Landlord and Tenant Act, R.S.O. 1990, c. L.7.
 
<b><u>The tenant alleges that the landlord breached the implied covenant for quiet enjoyment by harassing her with warning letters and other conduct</b></u> by removing her right to a parking spot on the renewal of her lease, <b><u>and by serving a notice on her boyfriend pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21, advising him that he was prohibited from entering the rental project.</b></u> This last ground is the primary complaint and raises a difficult and apparently unresolved issue concerning the existence and interface of a right of a residential tenant to invite guests to visit or occupy the rented premises and a right of the landlord to restrict entry by such persons.
 
[...]
 
First, I note that the shopping centre trespass cases cited (which are reviewed in <i>Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.))</i><ref name="Russo"/>, did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. <b><u>Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised</b></u>: <i>Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), (1976) 2 S.C.R. 520, 62 D.L.R. (3d) 749</i><ref name="Pajelle Investments"/>. <b><u>The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.</b></u>
 
[...]
 
I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: <i>Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)</i><ref name="Seberras"/>; <i>Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.)</i>.<ref name="Phillips"/>
 
I recognize that at least with respect to s. 2(1)(b) it could be argued that there is no "right or authority conferred by law" because here the tenant does not have the right to invite an occupier to stay in the premises; however, I think this is academic and that the invitee would still have a defence. The lease and s. 2(1)(a) clearly provide the tenant with the right to invite guests and it would not be appropriate in a prosecution under the Trespass to Property Act to make an inquiry as to whether the invitee has become an occupant rather than a temporary guest. Again, that should be resolved in a proceeding between the tenant and landlord. Further, it would appear that s. 2(1)(b) only applies where the person enters without permission or where the permission is withdrawn by the inviting occupier.
 
In conclusion, <u>I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project <b>but only if the person is not an invitee of the tenant.</b></u>
 
<b><u>I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought</b></u>: <i>Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)</i><ref name="Seberras"/>; <i>Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.)</i><ref name="Phillips"/>.
 
<ref name="Carr">Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII), <https://canlii.ca/t/h4tf7>, retrieved on 2024-01-31</ref>
<ref name="Cunningham">Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC), <https://canlii.ca/t/1vv77>, retrieved on 2024-01-31</ref>
<ref name="Russo">Russo v. Ontario Jockey Club (Ont. H.C.J.), 1987 CanLII 4356 (ON SC), <https://canlii.ca/t/g158b>, retrieved on 2024-01-31</ref>
<ref name="Pajelle Investments">Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), [1976] 2 SCR 520, <https://canlii.ca/t/1tx1c>, retrieved on 2024-01-31</ref>
<ref name="Phillips">Phillips v. Kranjcec, 1977 CarswellOnt 255, <https://rvt.link/ao>, retrieved on 2024-01-31</ref>
 
==Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)<ref name="Carr"/>==


[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s [https://laws-lois.justice.gc.ca/eng/const/page-15.html Charter rights].  Roxanne seeks damages for those breaches.  Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.
[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s <i>Charter rights</i>.  Roxanne seeks damages for those breaches.  Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.


Issue No. 1 - Did the police have authority, under either of the provincial [https://www.ontario.ca/laws/statute/90t21 Trespass to Property Act] or the [https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code of Canada], to arrest Roxanne without a warrant?
Issue No. 1 - Did the police have authority, under either of the provincial <i>Trespass to Property Act</i> or the <i>Criminal Code of Canada</i>, to arrest Roxanne without a warrant?


[25] It is undisputed that Roxanne’s arrest was carried out without a warrant.  Under both the [https://www.ontario.ca/laws/statute/90t21 Trespass to Property Act, R.S.O. 1990, c. T.21] (“TPA”) and the [https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code of Canada, R.S.C. 1985, c. C-46] (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.
[25] It is undisputed that Roxanne’s arrest was carried out without a warrant.  Under both the <i>Trespass to Property Act, R.S.O. 1990, c. T.21</i> (“TPA”) and the <i>Criminal Code of Canada, R.S.C. 1985, c. C-46</i> (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.


::'''a) Arrest Without a Warrant Under the TPA
::'''a) Arrest Without a Warrant Under the TPA
Line 42: Line 89:
[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave.  At issue is whether the individual has the right or legal authority to enter and/or remain on the premises:  see section 2.
[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave.  At issue is whether the individual has the right or legal authority to enter and/or remain on the premises:  see section 2.


[27] To make an arrest without a warrant pursuant to the [https://www.ontario.ca/laws/statute/90t21 TPA], a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute:  see [https://www.ontario.ca/laws/statute/90t21 section 9(1)].
[27] To make an arrest without a warrant pursuant to the <i>TPA</i>, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute:  see <i>section 9(1)</i>.


<b><u>[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA?  For the following reasons, I find they did not:
<b><u>[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA?  For the following reasons, I find they did not:
Line 56: Line 103:
::*Roxanne was, at a Minimum, a Licensee and Entitled to Remain</b></u>
::*Roxanne was, at a Minimum, a Licensee and Entitled to Remain</b></u>


==[http://canlii.ca/t/29q7q TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)]==
==TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)<ref name="TET-01936-09"/>==


3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. <b><u>RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.</b></u>
3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. <b><u>RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.</b></u>
Line 70: Line 117:
<b><u>4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.</b></u>
<b><u>4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.</b></u>


==[http://canlii.ca/t/1vv77 Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)]==
<ref name="TET-01936-09">TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB), <https://canlii.ca/t/29q7q>, retrieved on 2024-01-31</ref>


This is an application by the tenant for an abatement of rent under s. 113(1)(f) of the Landlord and Tenant Act, R.S.O. 1990, c. L.7.
==Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)<ref name="Seberras"/>==
 
<b><u>The tenant alleges that the landlord breached the implied covenant for quiet enjoyment by harassing her with warning letters and other conduct</b></u> by removing her right to a parking spot on the renewal of her lease, <b><u>and by serving a notice on her boyfriend pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21, advising him that he was prohibited from entering the rental project.</b></u> This last ground is the primary complaint and raises a difficult and apparently unresolved issue concerning the existence and interface of a right of a residential tenant to invite guests to visit or occupy the rented premises and a right of the landlord to restrict entry by such persons.
 
[...]
 
First, I note that the shopping centre trespass cases cited (which are reviewed in [http://canlii.ca/t/g158b Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.))], did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. <b><u>Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised</b></u>: [http://canlii.ca/t/1tx1c Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), (1976) 2 S.C.R. 520, 62 D.L.R. (3d) 749]. <b><u>The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.</b></u>
 
[...]
 
I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: [https://caselaw.ninja/img_auth.php/d/df/Seberras_v_Shende.pdf Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)]; [https://caselaw.ninja/img_auth.php/d/da/Phillips_v_Kranjcec.pdf Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.)].
 
I recognize that at least with respect to s. 2(1)(b) it could be argued that there is no "right or authority conferred by law" because here the tenant does not have the right to invite an occupier to stay in the premises; however, I think this is academic and that the invitee would still have a defence. The lease and s. 2(1)(a) clearly provide the tenant with the right to invite guests and it would not be appropriate in a prosecution under the Trespass to Property Act to make an inquiry as to whether the invitee has become an occupant rather than a temporary guest. Again, that should be resolved in a proceeding between the tenant and landlord. Further, it would appear that s. 2(1)(b) only applies where the person enters without permission or where the permission is withdrawn by the inviting occupier.
 
In conclusion, <u>I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project <b>but only if the person is not an invitee of the tenant.</b></u>
 
<b><u>I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought</b></u>: [https://caselaw.ninja/img_auth.php/d/df/Seberras_v_Shende.pdf Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)]; [https://caselaw.ninja/img_auth.php/d/da/Phillips_v_Kranjcec.pdf Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.)].
 
 
==[https://caselaw.ninja/img_auth.php/d/df/Seberras_v_Shende.pdf Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)]==


17 The situation here appears to have been envisaged by D. Lamont, Q.C., in 4th ed. of Residential Tenancies (Toronto:
17 The situation here appears to have been envisaged by D. Lamont, Q.C., in 4th ed. of Residential Tenancies (Toronto:
Line 105: Line 133:
my order. As long as the occupants may rent and comply with their obligation to treat the premises in a reasonable manner, <b><u>the
my order. As long as the occupants may rent and comply with their obligation to treat the premises in a reasonable manner, <b><u>the
plaintiff will take no steps under the writ of possession, until May 1, 1990.</b></u>
plaintiff will take no steps under the writ of possession, until May 1, 1990.</b></u>
<ref name="Seberras">Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.), 1990 CarswellOnt 516, [1990] O.J. No. 3155, 10 R.P.R. (2d) 52, 20 A.C.W.S. (3d) 268, <https://rvt.link/aj></ref>
==References==

Latest revision as of 20:55, 17 February 2024


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2024-03-28
CLNP Page ID: 384
Page Categories: [Interference of Reasonable Enjoyment (LTB)], [Notices of Entry (LTB)]
Citation: Trespass to Property (LTB), CLNP 384, <https://rvt.link/ap>, retrieved on 2024-03-28
Editor: Sharvey
Last Updated: 2024/02/17


Trespass to Property Act, R.S.O. 1990, c. T.21

1 (1) In this Act,

“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)


2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

[1]

Substitute Decisions Act, 1992, S.O. 1992, c. 30[2]

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.

...

31 (1) A guardian of property has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will. 1992, c. 30, s. 31 (1).

(2) Repealed: 1996, c. 2, s. 19.
(3) The guardian’s powers are subject to this Act and to any conditions imposed by the court. 1992, c. 30, s. 31 (3).

[2]

Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)[3]

This is an application by the tenant for an abatement of rent under s. 113(1)(f) of the Landlord and Tenant Act, R.S.O. 1990, c. L.7.

The tenant alleges that the landlord breached the implied covenant for quiet enjoyment by harassing her with warning letters and other conduct by removing her right to a parking spot on the renewal of her lease, and by serving a notice on her boyfriend pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21, advising him that he was prohibited from entering the rental project. This last ground is the primary complaint and raises a difficult and apparently unresolved issue concerning the existence and interface of a right of a residential tenant to invite guests to visit or occupy the rented premises and a right of the landlord to restrict entry by such persons.

[...]

First, I note that the shopping centre trespass cases cited (which are reviewed in Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.))[4], did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised: Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), (1976) 2 S.C.R. 520, 62 D.L.R. (3d) 749[5]. The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.

[...]

I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)[6]; Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.).[7]

I recognize that at least with respect to s. 2(1)(b) it could be argued that there is no "right or authority conferred by law" because here the tenant does not have the right to invite an occupier to stay in the premises; however, I think this is academic and that the invitee would still have a defence. The lease and s. 2(1)(a) clearly provide the tenant with the right to invite guests and it would not be appropriate in a prosecution under the Trespass to Property Act to make an inquiry as to whether the invitee has become an occupant rather than a temporary guest. Again, that should be resolved in a proceeding between the tenant and landlord. Further, it would appear that s. 2(1)(b) only applies where the person enters without permission or where the permission is withdrawn by the inviting occupier.

In conclusion, I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project but only if the person is not an invitee of the tenant.

I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)[6]; Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.)[7].

[8] [3] [4] [5] [7]

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)[8]

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada, to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

  • As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;
  • As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;
  • There is no evidence that Morgan gave Roxanne notice to leave the home; and
  • There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

  • Roxanne was, at a Minimum, a Licensee and Entitled to Remain

TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)[9]

3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.

7. The Tenants vacated the rental unit on September 3, 2009 as a result of the N12 Notice. The Tenants initially told the property management company retained by the Landlord that they would vacate the rental unit by August 31, 2009. However, the Tenants were not finished packing by August 31, 2009. The property management company agreed to extend the deadline until September 1, 2009. On September 2, 2009 the Tenants were still loading their van. GB, who works for the property management company, changed the locks on the rental unit on September 2, 2009 without giving the Tenants a key, but told the Tenants they could have access to the rental unit for the rest of the day to finish packing. He asked the Tenants to call him when they were finished packing. Not having heard from the Tenants, he returned to the unit at approximately 2 a.m. and discovered that the Tenants were still inside the rental unit. He asked them to leave, and then locked the door. The Tenants spent the rest of night in their truck parked outside of house.

Determinations:

2. The Landlord’s agent altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenants replacement keys.

3. The Landlord’s agent entered the rental unit illegally

4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.

[9]

Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)[6]

17 The situation here appears to have been envisaged by D. Lamont, Q.C., in 4th ed. of Residential Tenancies (Toronto: Carswell & Co., 1983); at p. 120 it states: "It is suggested that landlords' [sic] only remedy is to consider the subtenant or assignee as a trespasser and to commence an ordinary action for possession." This was upheld in Days vs. Feder Ont. Co. Ct. 13 April 1979 (unreported).

22 While the occupants have had since October to have vacated, since this matter is not under the Landlord and Tenant Act, but is an ordinary action, while I will direct that a writ of possession may issue, on the basis that defendants Stacey Harrison and Kim Shende are trespassers and that the purported sublet at best could not extend past February 28, 1990, the occupants may remain until April 30, 1990 (to pay rent to the plaintiff, since the lease between Deborah Lindenas and James Lindenas expires on February 28, 1990) — payment of rent to the plaintiff will not create any landlord and tenancy relationship between the plaintiff and these occupants. If the occupants fail to do so, the plaintiff may apply to me on 3 days' written notice to vary my order. As long as the occupants may rent and comply with their obligation to treat the premises in a reasonable manner, the plaintiff will take no steps under the writ of possession, until May 1, 1990.

[6]

References

  1. Trespass to Property Act, R.S.O. 1990, c. T.21, <https://www.ontario.ca/laws/statute/90t21>, retrieved 2024-01-31
  2. 2.0 2.1 Substitute Decisions Act, 1992, S.O. 1992, c. 30, <https://www.ontario.ca/laws/statute/92s30#BK42>, retrieved 2024-01-31
  3. 3.0 3.1 Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC), <https://canlii.ca/t/1vv77>, retrieved on 2024-01-31
  4. 4.0 4.1 Russo v. Ontario Jockey Club (Ont. H.C.J.), 1987 CanLII 4356 (ON SC), <https://canlii.ca/t/g158b>, retrieved on 2024-01-31
  5. 5.0 5.1 Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), [1976] 2 SCR 520, <https://canlii.ca/t/1tx1c>, retrieved on 2024-01-31
  6. 6.0 6.1 6.2 6.3 Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.), 1990 CarswellOnt 516, [1990] O.J. No. 3155, 10 R.P.R. (2d) 52, 20 A.C.W.S. (3d) 268, <https://rvt.link/aj>
  7. 7.0 7.1 7.2 Phillips v. Kranjcec, 1977 CarswellOnt 255, <https://rvt.link/ao>, retrieved on 2024-01-31
  8. 8.0 8.1 Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII), <https://canlii.ca/t/h4tf7>, retrieved on 2024-01-31
  9. 9.0 9.1 TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB), <https://canlii.ca/t/29q7q>, retrieved on 2024-01-31