Michael Ford (post until Oct. 31/18)
Regulatory

Landlord tenant dispute has wide implications for renters

A landlord and tenant dispute that’s currently before the Divisional Court could have wide-ranging implications for students, snowbirds and remote workers who live in rental units for a few weeks each month, says Toronto lawyer Aaron Harnett

“I’m asking the court to look in detail at what kind of tenancy is considered by the law,” he tells AdvocaterDaily.com.

“The problem is that in today’s world, people are in need of a primary residence that might only see them living in it a few weeks each month.”

Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer, says he’s asking the court to overturn an earlier precedent that it’s relying on in favour of a new test to apply when considering substituted tenancies. This new test would determine whether a landlord’s application to end a tenancy so the unit can be used for a family member of the landlord is genuine.

“I’m asking the court to adopt a purposeful approach,” he says. “These applications for own use are quite common and it’s going to have an effect on literally thousands of applications.”

Harnett says the issue has been raised in a matter he’s handling for his client, a landlord who went before Ontario's Landlord and Tenant Board to secure an order to terminate a tenancy so that his son, a student, could move into the unit. 

Section 48(1) of the Residential Tenancies Act sets out provisions for the Landlord and Tenant Board to end tenancies if the landlord, in good faith, requires possession of it for the purpose of resident occupations by: the landlord; their spouse; their child or parent or their spouse’s child or parent; and under certain other circumstances involving a person who provides care services to the landlord.

In this particular matter, the landlord’s son was a student in London, Ont. but required a place to live and study when in Toronto, where he also worked during the summer months. His father's intention was to have him move into one of the units he owned, Harnett says.

But the chair of the board dismissed his application on the basis that the “quality” of the possession intended by the landlord’s son fell below the standard contemplated by s. 48 (1) of the Act. He found that “occasional occupancy” isn’t what is intended by s. 48(1).

Harnett, whose client, the landlord, is appealing the decision on a question of law, says the problem with the board’s decision is that it relies on a dated precedent.

“The law says, for example, that a landlord can place his son in a unit if he needs a place for him,” he says. “The law doesn’t say how many days of the week his son has to live there. The Act is silent about that.

“The problem is with this old Divisional Court endorsement, which in my view has been taken improperly as justification for a two-tiered tenancy, that is two qualitatively different tenancies — a regular tenancy and an insufficient tenancy — in Ontario.”

Harnett says the court is relying on that decision to say that a student, who would live in the unit part-time, doesn’t get to be a tenant there.

“The same would be true of snowbirds, truck drivers and people on contracts up north,” he says.

Harnett explains that when he appeared at the end of October in Divisional Court to appeal the board’s decision, the panel of judges indicated that, given the issues involved, they wanted the Attorney General of Ontario to participate in the hearing. As a result, the matter was adjourned to a later date.

The court’s endorsement invites the AG to intervene in the case as amicus curiae.

“In order to overturn an earlier ruling, the court wanted to ensure they had a wide variety of inputs,” Harnett says. 

The case before the Divisional Court highlights a need for greater clarity in the jurisprudence, he adds.

Harnett is asking the court to terminate the existing tenancy to allow the landlord’s son to move into the unit, or to order a new hearing before the Landlord and Tenant Board.

The hearing is scheduled to proceed on June 20. 

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