CITATION: Wong v. Hsiao, 2022 ONSC 3253
DIVISIONAL COURT FILE NO.: 889/21 LANDLORD AND TENANT BOARD FILE NO.: TSL-15375-20
DATE: 20220530
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sweeny R.S.J., D.L. Corbett and Nishikawa JJ.
BETWEEN:
PIT-LING WONG Landlord (Appellant in Appeal)
– and –
PIN HSIAO and CHIEH TANG Tenants (Respondent in Appeal)
Adaline Huang, for the Appellant
Pin Hsiao and Chieh Tang, self-represented
HEARD at Toronto (by videoconference): May 30, 2022
D.L. Corbett J. (Orally)
[1] The appellant appeals the decision of Member Renée Lang of the Landlord and Tenant Board (the “LTB”) finding that the Residential Tenancies Act (the “RTA”) governs the relationship between the appellant and the respondents Tang and Hsiao.
[2] The premises in question is a rooming house. Some of the rooms were let to long-term occupants and some were let out for short-term stays. The respondents signed a lease with the appellant for long-term occupancy of a room at the premises in August 2017.
[3] The appellant owns a retail store not far from the premises. Although she had a principal residence elsewhere, on nights when she was at her store late, she would sometimes stay in an unoccupied room at the premises. The appellant did not have a specific room reserved for her use; she would use whichever room happened to be available or would sometimes sleep on a couch.
[4] Subsequently, the appellant sold her principal residence and began to live in a specific room at the rooming house, which she now says is her residence.
Position of the Appellant
[5] The appellant argues that the RTA does not apply because of s.5(i) of the Act, which states:
The Act does not apply 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 accommodation is located.
Decision of the LTB
[6] Member Lang found that the proper characterization of the relationship between the appellant and the respondents is to be made as at the time the relationship commenced. This statement of law discloses no error and is consistent with this court’s jurisprudence: see Cowie v. Bindlish, 2010 ONSC 2628, 262 OAC 388 (Div. Ct.). Thus, the appellant may not unilaterally change the nature of the relationship from a residential tenancy protected by the RTA, to a “mere licensee in a private dwelling that is exempted from the RTA by s.5(i) of the Act. The appellant does not contest these propositions.
[7] Member Lang further found that the expression “lives in the building” in s.5(i) of the Act connotes using the building as one’s principal residence. This finding is consistent with the overall scheme of the RTA. The Act applies to rooming houses. It is an open question whether a rooming house in which the proprietor happens to reside, is exempted from the RTA by virtue of s.5(i) of the Act: there is certainly an argument to be made to the contrary. However, that question need not be answered in this case. Occasional stays in unoccupied rooms does not amount to “living in the building” for the purposes of the RTA. Otherwise, the Legislature’s intent that rooming houses be covered by the RTA could easily be defeated, leaving tenants who are among the most vulnerable people in our society without basic tenancy rights to their rooms.
[8] The LTB’s conclusion that the appellant did not “live in the building” as of August 2017 is a mixed question of fact and law that discloses no extricable error of law. The resulting conclusion, that the respondents are tenants, and the tenancy is protected by the RTA, flows inexorably from this conclusion.
[9] The appeal is dismissed.[^1]
[10] The respondents seek costs of the appeal. They argue that they are entitled to costs as self-represented litigants. They claim to have spent over 200 hours preparing the appeal materials and have each taken a day off work to attend at and participate at the appeal.
[11] As the court explained to the parties, costs are an indemnity and are restricted to partial indemnity unless there has been litigation misconduct (there has been no such misconduct in this case). Ordinarily, for an appeal of this kind in this court, a party represented by counsel could not expect an award of more than about $5,000 on a partial indemnity basis.
[12] Self-represented parties are not entitled to be indemnified as if they are lawyers. The court does not assess the number of hours claimed or assign an hourly rate, but rather considers the fair and just amount given the principles of proportionality and reasonable indemnity for the self-represented party’s incurred cost to self-represent (which can include an amount in recognition of a day taken off work to attend the hearing).
[13] The court reserved on costs after delivering oral reasons on the merits. In respect to costs, this was a straightforward appeal that turned on two issues of law. In all the circumstances, we award the respondents a total of $800, inclusive, for costs of the appeal, payable within thirty days, which we consider to be a fair and reasonable indemnity for these self-represented respondents.
“D.L. Corbett J.”
I agree: “Sweeny R.S.J.”
I agree: “Nishikawa J.”
Date of Oral Reasons for Judgment: May 30, 2022
Date of Written Release: June 3, 2022
CITATION: Wong v. Hsiao, 2022 ONSC 3253
DIVISIONAL COURT FILE NO.: 889/21 LANDLORD AND TENANT BOARD FILE NO.: TSL-15375-20
DATE: 20220530
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sweeny R.S.J., D.L. Corbett and Nishikawa JJ.
BETWEEN:
PIT-LING WONG Landlord (Appellant in Appeal)
– and –
PIN HSIAO and CHIEH TANG Tenants (Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
D.L. Corbett J.
Date of Oral Reasons for Judgment: May 30, 2022
Date of Written Release: June 3, 2022
[^1]: The appellant asked the court to strike three documents included in the respondent’s materials. As expressed orally at the start of the hearing, since no motion to strike was brought and the issues on appeal did not turn on the impugned documents, the court declined to address this issue. In so doing the court should not be taken to have found that inclusion of the impugned documents was proper.