CITATION: Tremblay v. Ogunfeibo, 2019 ONSC 7423
DIVISIONAL COURT FILE NO.: DC-165/19
LANDLORD AND TENANT BOARD FILE: TST-99645-18; TST-99645-18-RV
DATE: 20191220
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, LOCOCO, and MYERS JJ.
BETWEEN:
LUCIE TREMBLAY
Appellant
– and –
OLAOLUWAKITAN OGUNFEIBO
Respondent
Andrei Dobrogeanu, for the Appellant
Olaoluwakitan Ogunfeibo, acting in person
Eli Fellman, for the Landlord and Tenant Board
HEARD at Toronto: December 2, 2019
REASONS FOR DECISION
F.L. Myers J.
[1] Lucie Tremblay appeals from the decision of the Landlord and Tenant Board dated November 19, 2018 and a Vice-Chair’s reconsideration decision dated February 25, 2019.
[2] The Board held Ms. Tremblay liable in damages for unlawfully evicting Mr. Ogunfeibo from the unit that he rented from her. Ms. Tremblay appeals and submits that the Board erred in finding that Mr. Ogunfeibo was a subtenant and was entitled to protection of the Act.
[3] For the reasons that follow, I dismiss the appeal.
FACTS
[4] The parties both resided in a building that consists of eight rental units. The building is owned by a landlord who is not a party to this proceeding. Ms. Tremblay rented two units from the landlord. She lived in one of the units. The second unit consists of two bedrooms, a bathroom, a common area, and a kitchen.
[5] Since 2016, Mr. Ogunfeibo has rented from Ms. Tremblay one of the two bedrooms in the second unit with shared use of the kitchen, common area, and bathroom. Initially, Mr. Ogunfeibo had a roommate who rented the other bedroom in the unit. After the roommate left, Ms. Tremblay has rented the room on a short-term basis at times. She herself does not live in the unit.
[6] It is not disputed that since her daughter returned to Toronto in September, 2018, Ms. Tremblay has wished to evict Mr. Ogunfeibo to enable her daughter and granddaughter to take over the rental unit.
[7] Ms. Tremblay therefore started a proceeding at the board for a declaration that the Act did not apply to Mr. Ogunfeibo’s occupation of the unit. The board scheduled a hearing on Ms. Tremblay’s application for November 30, 2018.
[8] Not content to wait for a legal determination however, on October 1, 2018, Ms. Tremblay unilaterally locked Mr. Ogunfeibo out of his unit without an eviction order from the board.
[9] By order dated October 12, 2018, the Board found that Mr. Ogunfeibo was a subtenant under s. 97 of the Act and ordered Ms. Tremblay to put him back into possession of his rental unit. The Board also set a process for the parties to return a few weeks later to consider whether Ms. Tremblay complied with its order and to deal with any damages suffered by Mr. Ogunfeibo as a result of the unlawful eviction.
[10] The Board’s November 19, 2018 decision arose from the next hearing. It dealt with Ms. Tremblay’s non-compliance with the Act and her initial failure to comply with its order of October 12, 2018. The Board ordered Ms. Tremblay to refrain from any further harassment or obstruction of Mr. Ogunfeibo’s enjoyment of his rental unit. It also ordered her to pay $4,394.29 for damage to Mr. Ogunfeibo’s goods as a result of the illegal eviction, an abatement of rent for the period he was locked out, and general damages for pain and suffering, plus interest and costs.
[11] On reconsideration, the Vice-Chair found that the Board member had not applied the statutory test for a subtenancy in s. 2(2) of the Act. However, she found that this was not a “serious error” in the circumstances. She held that the Board was tasked to determine if the protections of the Act were available to Mr. Ogunfeibo. She held that the “[m]ember’s decision on this point was clear and within his discretion to make having heard all of the evidence and submissions from the parties.”
[12] Ms. Tremblay appeals.
[13] In January, 2019, yet another member of the Board declined to hear Ms. Tremblay’s original application for a determination of whether the Act applied on the basis that the result in this case already bound the parties.
JURISDICTION
[14] An appeal lies to this court from a decision of the board on a question of law alone under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.
[15] Ms. Tremblay submits that the board erred in law in finding that Mr. Ogunfeibo was a subtenant and that he was therefore entitled to the protections afforded to subtenants under the Act.
[16] The application of the definition of subtenancy to an individual is a question of mixed fact and law that is not appealable to this court. But the definition of what constitutes a subtenant under ss. 2(2) and 97 of the Act is a question of law that is appealable.
STANDARD OF REVIEW
[17] The standard of review applicable to decisions of the board interpreting its home statute is reasonableness. See: Sterling Studio Lofts Incorporated v. Clayton Stel, 2019 ONSC 91 (Div. Ct.). That is, the court will consider whether the board’s decision intelligibly, justifiably, and transparently falls within the range of outcomes that were reasonably available on the facts and law.
The Act
[18] The sections of the Act that are germane to the issues considered by the board are:
2(1) In this Act,
“subtenant” means the person to whom a tenant gives the right under section 97 to occupy a rental unit
(2) For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,
(a) the tenant vacates the rental unit;
(b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and
(c) the tenant has the right to resume occupancy of the rental unit after that specified date.
Subletting rental unit
97 (1) A tenant may sublet a rental unit to another person with the consent of the landlord.
Consequences of subletting
(4) If a tenant has sublet a rental unit to another person,
(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and
(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy.
Tenant’s notice, application re subtenant
99 The following provisions apply, with necessary modifications, with respect to a tenant who has sublet a rental unit, as if the tenant were the landlord and the subtenant were the tenant:
Sections 59 to 69, 87, 89 and 148.
The provisions of this Act that relate to applications to the Board under sections 69, 87, 89 and 148.
Unauthorized occupancy
100 (1) If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred.
The Board’s Error
[19] When s. 2(2) of the Act is read with s. 97, it is clear that there are four requirements to establish an authorized subtenancy. First, the tenant must vacate the rental unit. Second, s. 2(2)(b) of the Act, cited above, provides that a subtenancy involves a right to occupancy “for a term ending on a specified
date before the end of the tenant’s term or period”. Third, s. 2(2)(c) provides that in a subtenancy, “the tenant has the right to resume occupancy of the rental unit after that specified date.” Fourth, in accordance with s. 97(1), the landlord must consent to the subletting.
[20] The Board found that the parties were in a tenant-subtenant relationship. There is some confusion in the member’s reasons, as he refers to Ms. Tremblay as the landlord throughout the reasons. But in paragraph 11 he also refers to the owner of the residential complex as a landlord. In the same paragraph, the member states, “the Landlord informed [Mr. Ogunfeibo] that her daughter would eventually be moving into unit 3 thereby implying acceptance of the Tenant as a subtenant.” From the context, it appears the Board is making a conclusion about Ms. Tremblay’s consent to the occupancy but makes no finding about the consent of the owner (that is, Ms. Tremblay’s landlord) to the occupancy as required by s. 97(1). All that the member said concerning that necessary finding was that as a result of a letter from the owner, Ms. Tremblay’s submission “that no one knows of the Tenant is not accurate”.
[21] In addition to there being no finding of the landlord’s consent as required under s. 97, the difficulty with this holding is that the thing that distinguishes a subtenancy from an assignment of a lease is the fact that a subtenancy ends prior to the end of the lease. That is, a subtenancy is a partial letting of the premises for only a portion of the tenant’s term. In a sublease situation the tenant resumes the tenancy if only for the last day of the term. An assignment, by contrast, is a complete transfer of the lease to the assignee so that the tenant will never resume its occupancy of the premises.
[22] Mr. Ogunfeibo’s oral occupancy agreement did not mention any subtenancy. It did not provide for Ms. Tremblay to give up her occupancy for a specified time and then re-enter or re-take possession. Rather, both tenancies were premised on indefinite occupancy with no time reserved for Ms. Tremblay to re-take possession of the unit
[23] Nevertheless, the Board found that in accordance with s. 2(2), Ms. Tremblay “transferred the occupancy of the rental unit to the Tenant” by validly subletting the premises to Mr. Ogunfeibo under s. 97(1) of the Act.
[24] Although the Board mentioned s. 2(2) in its finding, it looked only at the issue of consent under s. 97. It then misapplied that section as it did not make a finding the owner, Ms. Tremblay’s landlord, consented to Mr. Ogunfeibo’s sublease. As well, the Board did not consider the requirement that a tenant relinquish exclusive possession for a part of the tenant’s term and then reoccupy the rental unit. As such, the member applied the wrong test to determine that Mr. Ogunfeibo was a subtenant. In my view there is no basis upon which this can be within an acceptable range of determinations reasonably available to the member. The member was not weighing the facts or balancing competing interests for example. He just ignored two constituent parts of the legal test and misapplied the consent requirement.
[25] On reconsideration, the Vice Chair found that the Board member had made an error by failing to apply the statutory test. However, she erred in holding that the member then had a discretion to find the Act applied. There is no discretion provided in the sections of the Act quoted above. The Board’s decision that Mr. Ogunfeibo was a subtenant under s. 97 of the Act was clear and, as discussed above, it was based on an incorrect formulation of the applicable statutory provisions. The Vice-Chair cites no authority for the proposition that the Board has a discretion to ignore statutory preconditions to a finding of a subtenancy. Counsel and Mr. Ogunfeibo pointed us to none as well.
[26] Therefore, the Vice-Chair’s decision too cannot fall within a range of reasonable outcomes.
The Proper Remedial Response
[27] Given the Board’s failure to apply the proper statutory test for a subtenancy, the Court must determine the appropriate remedial response. Often, the response would be to set aside the decision and refer the matter for a rehearing, in light of the Act and the evidence.
[28] However, pursuant to ss. 210(4) and (5) of the Act, the Court has the power to “affirm, rescind, amend or replace the decision or order” or to “make any other order in relation to the matter that it considers proper.”
[29] In this case, Mr. Ogunfeibo is no longer occupying the unit. It is in the interests of justice to resolve this matter in an expeditious manner particularly when the decision that I reach is to uphold the decision of the Board although on other grounds. There is no point in sending the case back in the circumstances. In my view, in this case it is appropriate for the Court to
determine whether the Act, properly interpreted and applied, gave jurisdiction to the Board to make the order it did – not on the basis that there was a valid subtenancy, but because there was a landlord and tenant relationship between Ms. Tremblay and Mr. Ogunfeibo.
Statutory Interpretation
[30] If Mr. Ogunfeibo was not a subtenant, then Ms. Tremblay submits that he is outside the protections conferred by the Act and she was within her rights to evict him at common law. In my view, that is not a tenable interpretation of the Act.
[31] The sections of the Act that are germane to this issue are:
[32] Purposes of Act
1 The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.
2 (1) In this Act,
“landlord” includes,
(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,
(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent;
“rent” includes the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit and for any services and facilities and any privilege, accommodation or thing that the landlord provides for the tenant in respect of the occupancy of the rental unit, whether or not a separate charge is made for services and facilities or for the privilege, accommodation or thing, but “rent” does not include,
(a) an amount paid by a tenant to a landlord to reimburse the landlord for property taxes paid by the landlord with respect to a mobile home or a land lease home owned by a tenant, or
(b) an amount that a landlord charges a tenant of a rental unit in a care home for care services or meals;
“rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,
(a) a site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises, and
(b) a room in a boarding house, rooming house or lodging house and a unit in a care home;
“tenant” includes a person who pays rent in return for the right to occupy a rental unit…
Exemptions from Act
5 This Act does not apply with respect to,
(i) 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;
[33] The purpose of the Act is well understood. As set out in s. 1, it is to protect tenants from unlawful rent increases and evictions while balancing the rights of the landlord and the tenant. In Law Society of Upper Canada v Chiarelli, 2014 ONCA 391, 120 OR (3d) 561, Juriansz JA, in dissent (although not expressly on this point) referred to the expansiveness of the definitions of “landlord” and “tenant” in the Act as being among the terms designed to enhance tenant protection.
[34] Moreover, under s. 64(1) of the Legislation Act, 2006, SO 2006, c 21, Sch F, a decision-maker applying the Act is required to approach the statute as remedial legislation that is to be given a large and liberal interpretation to achieve its intended ends.
[35] In considering the proper interpretation of the Act, the Supreme Court of Canada has directed courts to utilize the “modern” approach to statutory interpretation as described by Prof. Driedger in his text Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[36] The relationship between Ms. Tremblay and Mr. Ogunfeibo falls squarely within the words of the statute. She is a landlord because she is a “person who permits occupancy of a rental unit”. She is not permitting Mr. Ogunfeibo to occupy her unit with her, so the exemption in the definition of “landlord” in paragraph (a) of the definition does not apply.
[37] Similarly, Mr. Ogunfeibo is “a person who pays rent in return for the right to occupy a rental unit.” He pays that rent directly to Ms. Tremblay and he gave evidence that he believed she was the landlord. So, he fits the definition of “tenant”.
[38] The bedroom, kitchen, common area, and bathroom are “any living accommodation used or intended for use as rented residential premises” so they meet the definition of a “rental unit.” Although Mr. Ogunfeibo shares the bathroom, kitchen and common area with others, the premises are akin to a boarding house or a rooming house, both of which are expressly included in the
definition of “rental unit” above. Finally, because the bathroom and kitchen are shared with other occupants and are not required to be shared with the “owner, the owner’s spouse, child or parent or the spouse’s child or parent” the exclusion from the Act in s.5(i) does not apply.
[39] Ms. Tremblay argues that finding that the Act applies to Mr. Ogunfeibo would be contrary to the limited rights of subtenants under s. 97 and specifically contrary to the landlord’s right to evict a person who has been allowed to occupy the premises without the landlord’s consent. In this case, for example, in February of this year, the landlord/owner went to the board to evict Ms. Tremblay and Mr. Ogunfeibo. He apparently provided notice to Ms. Tremblay but not to Mr. Ogunfeibo. Ms. Tremblay consented to eviction based on an unauthorized occupancy by Mr. Ogunfeibo. When the landlord succeeded in obtaining an eviction order against Ms. Tremblay, he apparently exercised the right only against Mr. Ogunfeibo. Ms. Tremblay’s daughter then took possession of the full second unit in accordance with Ms. Tremblay’s goal throughout.
[40] Mr. Ogunfeibo is again challenging his eviction at the board and claims that the landlord and Ms. Tremblay colluded to evict him unlawfully. I am not to be taken to be prejudging that ongoing proceeding. However, I do not see the fact that the landlord may have rights against an unauthorized subtenant as undermining the point that the Act applies to the relationship between the tenant, in the position of Ms. Tremblay, and a person who rents from her in the circumstances of this case. If others are able to assert superior rights, then the outcome can be determined by the board on an analysis of each of the relationships. Specific rights set out in s. 97 in favour of tenants who sublet and their subtenants may or may not be available where a proper subtenancy is not created as defined in s. 2(2). Moreover, if a tenant is found to have misled someone as to her capacity to rent the premises, that too may have legal consequences. The board is instructed by s. 202 of the Act to “ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit”. With this mandate, the board is well able to sort through the complexities of modern commerce to separate appropriate and necessary structure from deliberate or abusive misconduct.
[41] In my view, finding that the Act applies to the relationship between Ms. Tremblay and Mr. Ogunfeibo as landlord and tenant is consistent with the wording of the Act and its remedial purpose. It follows that Ms. Tremblay had no right to evict Mr. Ogunfeibo by self-help on October 1, 2018 as she did. Moreover, her conduct was particularly egregious as she had previously submitted her issues to the board for resolution. Evicting Mr. Ogunfeibo while they were waiting for the board hearing in a proceeding that she herself had commenced was high-handed to say the least.
[42] Therefore, while the Board erred in its application of the subtenancy provisions of the Act, this is not an appropriate case to set aside the decision. Given the evidence before the Board and the definitions of landlord and tenant, the Board’s remedial order should stand. The appeal is therefore dismissed.
[43] Mr. Ogunfeibo sought costs for the work that he performed on his factum that would otherwise have been written by a lawyer and costs in relation to the attendance of a support person in court with him. He did not articulate particulars of the charges on which he based his request. In my view, bearing in mind the overall need to assess a fair and reasonable amount for costs, it is appropriate to order Ms. Tremblay to pay forthwith to Mr. Ogunfeibo costs on a partial indemnity basis fixed in the nominal amount of $1,000 all inclusive.
F.L. Myers J.
I agree _______________________________
Swinton J.
I agree _______________________________
Lococo J.
Release Date: December 20, 2019
CITATION: Tremblay v. Ogunfeibo, 2019 ONSC 7423
DIVISIONAL COURT FILE NO.: DC-165/19
LANDLORD AND TENANT BOARD FILE: TST-99645-18; TST-99645-18-RV
DATE: 20191220
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, LOCOCO, and MYERS JJ.
BETWEEN:
LUCIE TREMBLAY
Appellant
– and –
OLAOLUWAKITAN OGUNFEIBO
Respondent
REASONS FOR DECISION
F.L. Myers J
Released: December 20, 2019