CITATION: McKnight v. Kirk, 2022 ONSC 3617
DIVISIONAL COURT FILE NO.: DC-21-0033-00
LANDLORD AND TENANT BOARD FILE NO: CET – 98736-21
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, S.T. Bale and Nishikawa JJ.
BETWEEN:
Gordon Kurt McKnight
Appellant
– and –
Natasha Kirk
Respondent
Gordon Kurt McKnight, in person
Nicholas Lovell, for the Respondent
HEARD: June 14, 2022 at Brampton
(By videoconference)
REASONS FOR DECISION
BY THE COURT:
Overview
[1] The Appellant tenant, Gordon Kurt McKnight, brings this appeal of the order of the Landlord and Tenant Board (“LTB”), dated September 20, 2021, dismissing his claim against the Respondent Landlord, Natasha Kirk, on the basis that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) did not apply to the tenancy (the “Decision”).
[2] The Tenant requests that the Decision be quashed, and that the matter be remitted to the LTB with a direction that the RTA applies.
Factual Background
[3] During the relevant time period, the Landlord owned and operated a rooming house. The Landlord lived in the unit on the first floor of the premises and rented out the rooms on the second and third floor. Several tenants lived in the premises. The second and third floor tenants shared a common bathroom and kitchen located on the second floor.
[4] In July 2019, the Tenant rented a room on the second floor of the premises. At the time, the Landlord’s daughter, J., lived on the third floor. In September 2019, J. left to attend post-secondary school but eventually returned. J.’s occupancy is significant to the issue of whether the exemption under s. 5(i) of the RTA applies and will be further detailed in these reasons.
[5] On January 14, 2021, the Tenant installed a security camera in the common kitchen. The Landlord told the Tenant to remove the camera. Shortly thereafter, the Landlord asked the Tenant to leave the residence. The Tenant then commenced a proceeding before the LTB.
[6] On March 16, 2021, the Landlord evicted the Tenant with the assistance of police. The Landlord had not brought an application to the LTB and there was no eviction order. The Landlord secured the police’s assistance on the basis that the tenancy was exempt from the RTA pursuant to s. 5(i) of that Act.
The LTB Decision
[7] A hearing was held on July 15, 2021 before Member Lynn Mitchell of the LTB (the “Member”). The preliminary issue before the Member was whether the LTB had jurisdiction to adjudicate the dispute or whether the exemption under s. 5(i) of the RTA applied.
[8] Subsection 5(i) of the RTA states as follows:
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.
[9] The Tenant took the position that he entered a regular lease subject to the RTA and that, therefore, the LTB had jurisdiction to adjudicate the matter. The Landlord’s position was that the exemption under s. 5(i) of the RTA applied and that, therefore, the LTB lacked jurisdiction to hear and decide the dispute.
[10] In the Decision dated September 15, 2021, the Member considered the testimonial evidence of the Tenant, the Landlord, and the Landlord’s daughter J. The Member admitted into evidence the affidavit of another tenant, but placed little weight on it because the tenant was not available for cross-examination. The Member found as a fact that during the tenancy, J. had regularly used the common elements on the second floor as the Landlord had submitted. On that basis, the Member concluded that s. 5(i) of the RTA applied and dismissed the application for lack of jurisdiction.
Analysis
Jurisdiction on Appeal
[11] As a statutory court, the jurisdiction of this court is circumscribed by the applicable legislation. Pursuant to s. 210 of the RTA, an appeal to the Divisional Court from a decision of the LTB is limited to a question of law only.
Standard of Review
[12] Before addressing the substantive grounds of the Tenant’s appeal, it is worthwhile to set out the scope of this Court’s jurisdiction on appeal and the applicable standard of review.
[13] In his appeal, the Tenant takes issue with many of the factual findings of the LTB and the fact that the Member accepted the Landlord and J.’s evidence despite credibility issues identified by the Tenant. The Tenant submits that this court exercises a “gatekeeping” function and that making credibility findings are part of the judicial function. The Tenant further submits that if a member of the LTB fails to scrutinize the evidence, that gives rise to a legal error.
[14] Questions of law are questions about whether the correct legal test was applied, or an approach prescribed by statute was followed. By contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688 at para. 43, and Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 35.
[15] An appellate court is prohibited from reviewing a lower court or tribunal finding of fact if there was some evidence upon which the decision-maker could have relied to reach that conclusion: Housen v. Nikolaisen, 2002 SCC 33, at para. 1. This principle extends to inferences of fact: General Motors v. Johnson, 2013 ONCA 502, at para. 51.
[16] In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), aff’d 2022 ONCA 446, at para. 28, Kristjanson J. explained the scope of review on a statutory appeal as follows:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).
[17] The issue of whether the s. 5(i) exemption applies to the tenancy is a question of mixed fact and law. Unless the LTB erred in its interpretation of s. 5(i) or made an error in law or legal principle in the fact-finding exercise, there would be no basis on which this court could disturb the Decision.
Issues
[18] At the hearing, the Tenant advised that he was no longer pursuing the procedural fairness issues that he had raised in his appeal materials. As a result, the appeal raises only the following issues:
(a) Did the Member err in law in interpreting s. 5(i) of the RTA?
(b) Was the Landlord required to bring an application under s. 9 of the RTA?
Did the Member Err in Law in Interpreting Subsection 5(i) of the RTA?
[19] The Tenant submits that the Member erred in her interpretation of s. 5(i) of the RTA in the following ways:
(i) Failing to interpret s. 5(i) in a manner consistent with the case law;
(ii) Failing to take into consideration that the premises were co-owned by the Landlord’s mother, Mary Louise Kirk;
(iii) Failing to consider the sale of the premises; and
(iv) Failing to consider the requirements of s. 5.1(3) of the RTA.
Did the LTB fail to interpret s. 5(i) in a manner consistent with the case law?
[20] The Tenant submits that the Member failed to interpret s. 5(i) of the RTA in accordance with the purpose of the Act and in a manner consistent with the case law.
[21] Section 1 of the RTA states that the “purposes of the Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions… 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.”
[22] This court considered the proper interpretation of s. 5(i) in Cowie v. Bindlish, 2010 ONSC 2628 (Div. Ct.), and stated as follows:
17 Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.
18 Any such interpretation would also, in my view, be inconsistent with the objectives of the Act as reflected in sections 1 and 3 (1) of the Act.
[23] The Tenant submits that the Member failed to explain why she departed from Cowie v. Bindlish and LTB decisions that have subsequently found that the Board must examine the circumstances throughout the tenancy to determine whether the RTA began to apply at a later point in time.
[24] In SWL-17145-18, 2018 88667 (ON LTB), the landlord and tenant initially shared the kitchen and bathroom, until the landlord moved to a new residence with his spouse and baby. The LTB found that the RTA applied from the date the landlord vacated the premises. The LTB found that, while the landlord’s departure was a unilateral action that would affect the tenancy, its finding was nonetheless consistent with this court’s holding in Cowie v. Bindlish because the unilateral act would cause the RTA to apply, rather than to cause the RTA to cease to apply.
[25] In TET-87517-18-IN, 2018 42846 (ON LTB), the LTB found that the landlord actually resided in a separate unit and “staged” his living situation to evade the application of the RTA.
[26] In TET-79055-17-RV, 2017 60359 (ON LTB), the LTB found that the s. 5(i) exemption applied because it was clear at the outset of the tenancy that the landlord’s daughter would be moving into the premises and that the kitchen and bathroom would be shared. The daughter’s delay in moving in did not cause the RTA to apply.[^1]
[27] In our view, the Decision was not a departure from the relevant authorities. What the above cases demonstrate is that the application of the s. 5(i) exemption very much turns on the facts in evidence before the LTB in a particular case.
[28] In the Decision, the Member applied this court’s interpretation of s. 5(i) in Cowie v. Bindlish and correctly held that the relevant time period for assessing the application of the s. 5(i) exemption was at the outset of the Tenant’s occupancy, in July 2019. As detailed further below, she also considered whether the circumstances changed when J. left the premises to attend school. This demonstrates that the Member did not only consider the circumstances at the outset of the Tenant’s occupancy, but was alive to the potential that the RTA could have applied at a later stage.
[29] In addition, the Member properly interpreted the terms “lives in the building” and “required to share.” The Tenant argues that J. was not “required to share” the bathroom and kitchen with the tenants because she was able to use the bathroom and kitchen in the owner’s first floor unit. However, based on the express words of s. 5(i), the question is not whether the family member is “required to share” with the tenants, but whether the tenants are required to share the facilities with the family member. There was evidence before the LTB that while J. used the first-floor bathroom to shower, she regularly used the second-floor bathroom, kitchen and laundry facilities. The tenants had no alternative facilities and were therefore required to share with J.
[30] Contrary to the Tenant’s submissions, there was evidence before the LTB to support the Member’s finding that J. continued to live in the third-floor room, even after she left for school in September 2019. J. testified that she left her clothing and bed behind and returned every other weekend and stayed in the third-floor room. In March 2020, she stayed with her grandmother for some period of time but eventually returned to the premises. The third-floor room was periodically rented to other tenants, and during those times, she stayed with her mother or in a room on the second floor. The Member found that the Landlord always ensured that J. had a room in one of the upstairs rooms. Moreover, the Tenant knew when he moved in that the Landlord’s daughter, J., lived on the third floor. In making her findings, the Member did not ignore the evidence or make a finding that was not available on the evidence before her and no error of law arises.
[31] Based on the foregoing, the circumstances in which a factual matter may give rise to an error of law do not arise in this case.
Did the Member Err in Interpreting Section 5(i) by Failing to Consider that the Premises was Co-Owned by the Landlord’s Mother?
[32] The Tenant submitted that the exemption did not apply because the Landlord co-owned the property with her mother, Mary Louise Kirk, and that J. was thus not a “spouse, child or parent” of the owner, as required under s. 5(i).
[33] The Member considered the use of the term “owner” in s. 5(i) and the absence of a definition of “owner” in the RTA. The Member found that “landlord” under the RTA is defined more broadly than an owner. The Member adopted a contextual and purposive interpretation of the provision to find that interpreting the term “owner” to apply only to a sole owner would defeat the purpose of the exemption, which was to allow a balance between the rights of a tenant with the rights of an owner or their family members who live in the rental premises.
[34] In this case, the Member found on the evidence that the Landlord’s mother was in effect a guarantor and had no other involvement with the property, which was managed entirely by the Landlord.
[35] The Member did not err in her interpretation of “owner” under s. 5(i) of the RTA. To the contrary, to find that the exemption does not apply because the “child” at issue is the child of one co-owner and not the other co-owner, who is also a family member, would be an overly technical and narrow interpretation of the provision. This is especially so when the other co-owner is an owner in name only, as was the case here.
Did the Member Err in Failing to Consider the Subsequent Sale of the Premises?
[36] The Tenant argued that the Landlord could not rely on the s. 5(i) exemption because the premises were sold in the interim, and the sale closed on July 15, 2021, which was the date of the hearing before the LTB. Before this court, the Tenant argued that a new owner steps into the shoes of the previous owner and that it would be contrary to the RTA for the exemption to continue, for example, if the new owner is a corporation.
[37] In our view, the Member correctly determined that in the circumstances of this case, the sale would not impact the application of s. 5(i). This is because the relevant time for determining the application of the exemption is when the tenancy began. The tenancy began in July 2019, and the Tenant was evicted in March 2021, long before the sale took place. The issue before the LTB was whether the s. 5(i) exemption applied when the Tenant resided at and was evicted from the premises. The subsequent sale of the premises had no impact on this determination. The fact that the s. 5(i) exemption was found to apply at that time does not mean that it would continue to apply after the property was sold.
Did the Member Err in Failing to Consider the Requirements under Subsection 5.1(3)?
[38] The Tenant also relied on s. 5.1(3)1 of the RTA to assert that the Landlord was obligated to inform the Tenant of her intention to seek an RTA exemption at the commencement of his tenancy and that this never occurred. At the hearing, the Tenant acknowledged that s. 5.1 does not apply to the tenancy but submitted that the interpretation of s. 5(i) should be informed by its terms.
[39] This argument was not raised before the LTB and should not be raised for the first time on appeal. In any event, s. 5.1 has no application, whether directly or by analogy.
[40] Subsection 5.1(3)1 of the RTA requires that an agreement state that the provider of the living accommodation intends that the living accommodation be exempt from the RTA, among other things. However, the application of the provision is limited to housing situations defined in s. 5.1(1) of the RTA, specifically, “living accommodation provided to a person as part of a program described in subsection (2).” Therefore, s. 5.1(3) does not apply to the exemption found in s. 5(i) of the RTA.
[41] While the Tenant submits that the interpretation of s. 5(i) should be informed by the requirements under s. 5.1(3), the Legislature has not enacted similar notice requirements in relation to s. 5(i). The fact that the legislator has enacted specific conditions in relation to a particular situation, in this case, living accommodation provided as part of a program, does not mean that it intended to do the same in respect of living accommodations where occupants are required to share facilities with the owner or owner’s family member. To the contrary, the absence of the specific requirements in relation to s. 5(i) suggests that the Legislature did not intend that the requirements under s. 5.1(3) apply.
[42] The Member did not err in failing to apply the requirements under s. 5.1(3) to the circumstances of this case.
Was the Landlord Required to Bring an Application under s. 9 of the RTA?
[43] The Tenant submits that the Landlord was required to bring an application under s. 9 of the RTA for a determination as to whether the RTA applies. It does not appear from the Decision or record before the LTB that this issue was raised before the Member.
[44] Section 9 states as follows:
9(1) A landlord or a tenant may apply to the Board for an order determining,
(a) whether this Act of any provision of it applies to a particular rental unit or residential complex;
(b) Any other prescribed matter.
(2) On the application, the Board shall make findings on the issue as prescribed and shall make the appropriate order.
[45] As is clear from the language of the provision, s. 9(1) allows, but does not require that a landlord make an application for a determination under the RTA. Subsection 9(2) requires that the LTB make findings and an order on any such application but does not create an obligation on the landlord to bring an application.
[46] The Tenant’s reliance on s. 185(1) of the RTA is also misplaced. That provision prescribes the form of application and information required but does not create an obligation to bring an application.
[47] Section 5(i) of the RTA raises a question of subject-matter jurisdiction. Administrative decision makers cannot proceed to hear an application without legislative authority. It is therefore always open to a party – in this case the landlord – to raise a question of jurisdiction. Here, the Member found that the s. 5(i) exemption applied, the RTA did not apply, and that the LTB lacked jurisdiction over the dispute.
Conclusion
[48] Accordingly, the appeal is dismissed.
[49] Counsel for the Landlord seeks $4,500 in costs of the appeal, all-inclusive, on a partial indemnity basis. The Tenant advised that he too would be seeking costs of the appeal, if successful, to cover the cost of transcripts and disbursements for a total of approximately $1,500 to $2,000.
[50] In the circumstances, the amount sought by the Landlord is reasonable. Costs of the appeal in the amount of $4,500 are payable by the Tenant to the Landlord within 90 days of the date of this decision.
“Stewart J.”
“S.T. Bale J.”
“Nishikawa J.”
Date: July 7, 2022
CITATION: McKnight v. Kirk, 2022 ONSC 3617
DIVISIONAL COURT FILE NO.: DC-21-0033-00
LANDLORD AND TENANT BOARD FILE NO: CET – 98736-21
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, S.T. Bale and Nishikawa JJ.
BETWEEN:
Gordon Kurt McKnight
Appellant
– and –
Natasha Kirk
Respondent
REASONS FOR JUDGMENT
Released: July 7, 2022
[^1]: The additional cases relied upon by the Landlord are not particularly relevant to this matter because those cases involved disputes where one of the occupants was a former spouse: Azevedo v. Lograsso, 2019 ONSC 4267 (Sup. Ct.); Quin v. McCaughey, 2016 ONSC 7921.