NATURE OF PROCEEDING

[1] This is an appeal of the Order of Landlord and Tenant Board Member Pernal and a Review Order of Board Member Sangmuah. Pursuant to those orders, the rental unit in question was found to be exempt from the provision of the Residential Tenancies Act, 2006 S.O. 2006, c. 17 (the “Act”) as section 5(i) exempts rental units where the occupant is required to share a bathroom or kitchen with the landlord or the landlord’s spouse, parent or child. The Board further held that the rights and obligations of the parties are determined as of the time the tenancy agreement was entered into.

[2] When he moved into the unit, the appellant Quin shared a kitchen and bathroom with the respondent landlady’s daughter. Two years later, he married the landlady’s daughter Meghan. She no longer resides there.

[3] The appellant argues that section 5 is not intended to apply to married couples and that his marriage to the respondent’s daughter two years into his tenancy brings him outside the exemption in section 5(i) of the Act.

[4] He seeks to set aside the Order and Review Order and remit the matter back before a different Board Member.

BACKGROUND

[5] The respondent landlady is the owner of a duplex at 285 Glenforest Road, Toronto. Her daughter Alison lives in the upper level.

[6] The appellant Mr. Quin moved into the lower level of 285 Glenforest Road in 2011. He lived with the landlady’s daughter Meghan for two years while they were dating and later, as a married couple. The unit had one kitchen and one bathroom.

[7] The respondent landlady’s daughter Meghan left the lower level unit in April 2015 and she is no longer sleeping there. The appellant says this is due to health reasons. The respondent disputes this.

[8] Shortly after her daughter left the premises, the respondent asked the appellant to move out. When the appellant did not, she applied to the Landlord and Tenant Board to terminate Mr. Quin’s tenancy and evict him on the grounds that he damaged the property and she needed the unit for herself, her spouse, her child or her parent. She also sought compensation for the alleged damage to the property.

[9] The appellant applied for an order that the respondent interfered with his rights.

[10] On December 9, 2015, Board Member Pernal dismissed both applications on the grounds that this rental unit is exempt from the Act. He relied on section 5(i) of the Act which provides as follows:

(i) This Act does not apply with respect to, living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located…

[11] Board Member Pernal cited Cowie v. Bindlish, 2010 ONSC 2628 (Div. Ct.) at para. 4, for the proposition that the “facts governing the status of the rental unit are evaluated when the tenancy first took effect.

[12] The appellant requested a review of the Board’s Order. In his Review Order, Vice Chair Sangmuah, confirmed the decision of Board Member Pernal. However, he determined that because the Board Member raised the issue of jurisdiction on his own motion, the appellant did not have a reasonable opportunity to participate in the argument and he therefore heard the jurisdictional issue again.

[13] He noted that the appellant agreed that when he moved into the unit, he was living with the respondent landlord’s daughter. He also noted that several years after he moved into the unit, the appellant married the respondent landlord’s daughter. He disagreed with the appellant’s assertion that section 5 of the Act was not intended to apply to married couples and held that, “If the Legislature intended to exempt married couples from the application of the Act, it could have done so in clear terms. On policy grounds, there is no good reason for estranged family members to have a landlord-tenant relationship under these circumstances.”

[14] He also rejected the appellant’s argument that he was not required to share a kitchen and bathroom with his wife because they were married. He found that, “As there was no other kitchen or bathroom for the use of the Tenant, he was by necessity required to share those facilities whether he was married to the other occupant or not.”

JURISDICTION AND STANDARD OF REVIEW

[15] The Divisional Court has jurisdiction to hear this matter as section 210 of the Act provides that,

(1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

[16] The Ontario Court of Appeal has determined that the applicable standard of review on an appeal from the Board is reasonableness. (See First Ontario Realty Corp. v. Deng, 2011 CarswellOnt 244 (C.A.) paras. 17 and 21.)

[17] Because the interpretation of section 5(i) to determine whether an exemption applies to a tenancy is a matter within the jurisdiction of the Board, this court must show deference to decisions of the Board.

ANALYSIS AND CONCLUSION

[18] The appellant claims that the Board’s determination that the Act does not apply to this case was unreasonable. He claims that the nature of the tenancy can change over time and the word “child” in the exclusion in section 5(i) of the Act does not include a situation where the tenant is married to the “child” of the landlord. He claims that the exemption only applies to rooming houses.

[19] The words of the legislation are to be read in context, in their ordinary sense, in a manner consistent with the objectives of the Act and the intention of the legislators. (See Rizzo v. Rizzo Shoes Ltd., Re, 1998 CarswellOnt 1 (SCC) at para 52).

[20] The Board member and the Vice Chair determined that section 5(i) of the Act governed the tenancy at the time this tenancy agreement was entered into. At the time, the appellant was cohabiting with the respondent’s daughter. The respondent landlady never agreed to a tenancy agreement within the meaning of the Act. The Board therefore determined that the appellant’s living accommodation was within the exemption in section 5(i) of the Act.

[21] The decisions of the Board are reasonable for the following reasons:

(a) The Board’s determinations that there is only one kitchen and bathroom in the unit and that the appellant was therefore required to share them with the respondent’s daughter who lived with the appellant when he entered into the tenancy agreement, are questions of fact that are not subject to appeal;

(b) As the Board found, contrary to the assertion of the appellant, the plain and ordinary meaning of the word “child” in section 5(i) of the Act does not exclude a situation where the tenant is married to the “child” of the landlord or this type of tenancy;

(c) There is no authority for the appellant’s proposition that the legislators intended to treat spouses differently from others subject to the exemption in section 5(i) of the Act;

(d) The finding that the determination is made in this case at the time the agreement is entered into, is consistent with the decisions in Cowie v. Bindlish, paras 4, 16 and 17 and Hooey v. Bomze, 1993 CarswellOntario 2047 (Gen.Div). Those decisions make it clear that one party alone cannot change the legal nature of the relationship. This means that the appellant could not decide that he could rely on the protections in the Act just because the landlady’s daughter Meghan was no longer sleeping in the unit; and

(e) To enable a party to opt in and out of the exemption is not reasonable as it would allow the appellant to unilaterally revise the terms of the tenancy agreement.

[22] For these reasons, the Appeal is dismissed.

COSTS – SACHS J.

I have endorsed the Appeal Book and Compendium as follows: “For reasons given orally by Thorburn J., this appeal is dismissed. As the successful party, the Respondent is entitled to her costs. However, given the Appellant’s financial circumstances, we fix these costs at $1,500.00, payable within 12 months from today.”

___________________________ THORBURN J.

I agree

SACHS J.

I agree

RICCHETTI J.

Date of Reasons for Judgment: December 15, 2016

Date of Release: December 16, 2016

CITATION: Quin v. McCaughey, 2016 ONSC 7921

DIVISIONAL COURT FILE NO.: 226/16

LTB No: TNT-76662-15 RV

DATE: 20161215

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, THORBURN and RICCHETTI JJ.

BETWEEN:

BRIAN QUIN Appellant (Tenant)

– and –

INITA McCAUGHEY Respondent (Landlord)

ORAL REASONS FOR JUDGMENT

THORBURN J.

Date of Reasons for Judgment: December 15, 2016

Date of Release: December 16, 2016

Quin v. McCaughey, 2016 ONSC 7921

Case Summary

NATURE OF PROCEEDING

BACKGROUND

JURISDICTION AND STANDARD OF REVIEW

ANALYSIS AND CONCLUSION

COSTS – SACHS J.

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legislation 1