Ontario Superior Court of Justice, Divisional Court
Court File No: 99-DV-364
Date: 2000-04-19
Judges: Matlow, Cosgrove and McLean JJ.
Counsel:
Timothy J. Wilkin, for appellant.
Susan E. Charlesworth, for respondents.
[1] Matlow J. (McLean J. concurring):—At the conclusion of the hearing of this appeal, the Court rendered its judgment (Cosgrove J. dissenting) allowing the appeal and setting aside the order of the Ontario Rental Housing Tribunal (the Tribunal) under appeal and stated that written reasons would follow. These are those reasons.
[2] The main issue on this appeal is whether an agreement to terminate a tenancy made by the parties at the time when the tenancy agreement was signed by the parties was enforceable by the appellant, the landlord, in the circumstances of this case. In my view it was.
[3] The issue arises in the context of the following facts. The appellant operates approximately 550 rental units that provide accommodation to approximately 1000 Queen's University students. In order to be eligible to reside in one of those units, at least one of the tenants must be a student at the university. The respondent, Clandfield, is an employee of the university and the respondent, Atkinson, is a student at the university. At all material times they lived together with their young child in an apartment rented to them by the appellant.
[4] It is customary for students who live in these apartments to enter into a tenancy agreement for a one-year term starting on September 1 and ending on August 31 of the following year. Tenants are required to sign an agreement to terminate a tenancy as a precondition to entering a tenancy agreement with the appellant.
[5] On June 15, 1998, the parties entered into a tenancy agreement for the subject apartment for a term starting on September 1, 1998 and ending on August 31, 1999. At the same time the parties entered into an agreement to terminate the tenancy on August 31, 1999.
[6] The respondents had two cats residing with them. This was discovered by the appellant during the term of the tenancy. Upon making this discovery, the appellant advised the respondents by letter dated March 24, 1999 that if they chose to keep pets in their apartment they would not be offered renewal or transfer for the next leasing period.
[7] In response, the respondents applied to the Tribunal pursuant to section 32 of the Tenant Protection Act 1997, S.O. 1997, c. 24, for an order that the appellant had substantially interfered with their reasonable enjoyment of their apartment.
[8] Section 32(1) of the Act reads in part as follows:
32(1) A tenant or a former tenant of a rental unit may apply to the Tribunal for any of the following orders:
- An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.
[9] Section 35 of the Act then provides that if the Tribunal determines that there has been a violation of section 32(1), para. 6 it may provide relief as set out in that section including "any other order that it considers appropriate".
[10] In the exercise of this jurisdiction the Tribunal made the following order:
It Is Ordered That:
The Agreement to Terminate a Tenancy on August 31, 1999, which was signed by Anna Atkinson and Peter Clandfield (the tenants) and by Queen's (the landlord) is void.
The tenants shall not be required to vacate the unit on August 31, 1999.
The tenants shall sign a new Agreement to Terminate a Tenancy, with a termination date of August 31, 2000, in accordance with the usual practice, and shall abide by all lawful conditions set out in the Tenancy Agreement.
Queen's shall immediately remove the "no pet rule" from this and all other Tenancy Agreements which fall under the jurisdiction of the Tenant Protection Act.
Queen's shall not use the Agreement to Terminate a Tenancy for any reason other than its intended purpose; that being the provision and protection of student housing.
[11] In its "analysis and findings", the Tribunal set out the following conclusions upon which it based its order:
I, therefore, find as a fact, that Queen's does not permit pets in its units, both as a matter of policy and as a condition of its Tenancy Agreement with tenants. This requirement is clearly in violation of section 15 of the Act, and there is no exemption for Queen's, post-secondary educational institutions or other landlord in Ontario, to impose such a condition as part of a Tenancy Agreement.
The "no pet rule" contained in the Tenancy Agreement, together with the letter from Ms Caird and Queen's threat to not renew unless the cats were relocated, are contrary to section 15 of the Act. I also find that these actions have substantially interfered with the tenants' reasonable enjoyment of the rental unit contrary to section 26 of the Act.
[12] This appeal is brought pursuant to section 196 of the Act which allows an appeal to be brought to this Court on a question of law.
[13] It is the position of the appellant that the prohibition contained in section 39(3) of the Act against the making of an agreement to terminate tenancy at the time the tenancy agreement is entered into does not apply to the facts of this case because of section 4(1) of Ontario Regulation 194/98 which provides for the exemption of student housing provided by post-secondary educational institutions. As a result, the appellant was entitled to rely on the agreement for the purpose of terminating the tenancy at the end of the term.
[14] I agree with this position. I am persuaded that this exemption reflects a deliberate legislative intention to treat student housing differently from other rental housing. The purpose was clearly to recognize the unique circumstances that distinguish student rental housing from other kinds. Post-secondary educational institutions which provide rental housing for their students are permitted to rent apartments to students for terms equivalent to and coinciding with the academic year. By requiring students to sign agreements terminating their tenancy, the institutions effectively retain control over their tenants to ensure that only qualified and compatible tenants live in the housing provided. This control is not without limits. It does not permit the institution to terminate a tenancy during the term of lease. It does, however, confer the right on them to refuse to grant a new tenancy to tenants after the expiry of the previous term. To this extent student tenants do not enjoy the same security of tenure as other tenants. Their security of tenure is certainly not purrfect.
[15] It follows that even though the appellant was not entitled to terminate the respondents' tenancy during the term of their tenancy because they possessed cats, the appellant was entitled to refuse to grant a new tenancy to the respondents for that very same reason. I respectfully disagree with the Tribunal's holding to the contrary.
[16] I conclude, therefore, that the Tribunal erred in holding that the appellant was in violation of section 32(1) of the Act by engaging in correspondence with the respondents regarding the consequences of their possessing cats on the prospect of the appellant agreeing to a new tenancy after the expiry of the current term. The appellant was entitled to rely on its legal rights as it did.
[17] In its consideration of the application made by the respondents the Tribunal expressly relied on section 84. In doing so, the Tribunal erred. Section 84 by its terms applies to applications by landlords "for an order evicting a tenant or subtenant". The application before the Tribunal was clearly not of that kind and the Tribunal was not entitled to extend the provisions of section 84 to the application that was before it.
[18] It was conceded by counsel for the appellant that the provision in the subject tenancy agreement which, by reference, incorporated a provision prohibiting the possession of pets by tenants was in violation of section 15 of the Act. However, the appellant did not ever attempt to enforce that provision of the tenancy agreement and there is no persuasive reason why its inclusion should affect the outcome of this proceeding.
[19] The appellants seek an order from this court declaring that the agreement to terminate tenancy between the parties was valid and enforceable. In my view it would be inappropriate to make a substantive order in favour of the appellant on an appeal from an order made as a result of an application made by the respondents without there being a cross-appeal before us.
[20] Cosgrove J. (dissenting):—I am, with great respect, unable to concur in the Reasons for Decision of my brother judges on this appeal for the following reasons:
(a) I do not agree that Section 4(1) of Ontario Regulation 194/98, can be interpreted so widely as to provide an override or exemption to Section 39(3) of the Tenant Protection Act, 1997, S.O.1997, c. 24: in my view, if this had been intended by the legislation it would have been explicit, which it is not.
(b) I would not, out of curial deference to the Tribunal (and certainly without any cattish motivation) interfere with the reasonable and carefully crafted decision of the Tribunal below.
[21] Appeal allowed.