O’BRIEN J.

reasons for DECISION

Overview

[1] The central issue on this appeal is whether the Landlord and Tenant Board (“the Board”) erred in law when it found the Residential Tenancies Act, 2006, S.O. 20026, c. 17 (“RTA” or “Act”) did not apply to the appellant’s occupation of the respondent’s Airbnb unit.

[2] The Airbnb unit is found in the basement of a home in Rosedale that contains four other rental units. The appellant initially booked the unit over the Airbnb website for a month, from March 3, 2023 to April 3, 2023. He then made successive requests to extend his stay in the unit. The respondent approved each extension until the final extension, which lasted until August 14, 2023. On August 8, 2023, the appellant asked about a further extension and was told the unit would not be available. The appellant moved his personal belongings from the unit on August 14. He takes the position he was illegally locked out.

[3] The appellant started two applications before the Board. In the first, he sought an order that the RTA applied to his use of the Airbnb unit (the “jurisdiction application”). In the second application, he sought an order that the respondent had, among other things, illegally locked him out. The second application came before the Board on September 27, 2023. At the outset of the hearing, the Board member became aware of the jurisdiction application. The Board member decided to join the two applications since the question of whether the RTA applied would dictate whether the Board had jurisdiction to consider the alleged illegal lockout.

[4] In its order, the Board concluded the RTA did not apply to the appellant’s occupation of the Airbnb unit. It considered s. 5(a) of the RTA, which exempts certain types of living accommodations, including some occupied for a temporary period, from the Act. The Board found that the appellant’s occupation of the unit was intended to be for a temporary period and was not occupied as a permanent residence or living accommodation.

[5] The main issue on the appeal is whether the Board was correct in concluding the s. 5(a) exemption applied. The appellant also submits the Board denied him procedural fairness by proceeding with the hearing of the jurisdiction application at the same time as the other application without advance notice to him.

[6] Pursuant to s. 210 of the RTA, an appeal to this court from the Board is limited to questions of law, including issues of procedural fairness.

[7] For the following reasons, the appeal is dismissed.

Was it an error of law to conclude the RTA did not apply to the appellant’s occupation of the Airbnb unit?

[8] The Board found the RTA did not apply to the circumstances of this case because of the exemption found in s. 5(a). Subsection 5(a) provides the RTA does not apply to: “living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home.”

[9] The Board reasoned first that the e-mail correspondence between the parties at the outset of March 2023 indicated they intended the occupation to be for a temporary period. The appellant’s emails stated that he was to use the unit on a temporary basis until he found a full-time rental unit. Second, the Board noted that although the appellant’s stay was extended on several occasions, each time he had been required to obtain the respondent’s consent, including to confirm the unit had not been booked by another individual. The Board further considered that the daily amounts charged fluctuated based on the time of year and included taxes. Finally, the Board noted that all payments were made through the Airbnb platform. The Board concluded that in these circumstances, the occupation of the unit was temporary.

[10] The appellant submits the Board erred in its application of the s. 5(a) test. He emphasizes the test under s. 5(a) has two parts and submits the Board failed to address the second part of the test. The first part of the test requires the respondent to show either that the accommodation is intended for the travelling or vacationing public or that it is occupied for a seasonal or temporary period. Under the second part of the test, the respondent must show the property falls within one of the listed types (a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home.) The appellant submits the Board concluded the occupation of the unit was for a temporary period but did not make a finding regarding the second part of the test. There is no dispute the onus is on the landlord to show the unit fell within the exception: Grenadier (Tenants of) v. We-Care Retirement Homes of Canada Ltd., [1993] 63 O.A.C. 387 (Div. Ct.), at para. 3.

[11] I am satisfied from the record as a whole that there was no error of law. At para. 20 of its decision, the Board expressly noted the second part of the s. 5(a) test, stating: “In either situation the property itself must be one of the listed types.” While the Board then went on to make an express finding about the first part of the test – that is, that the unit was intended to be occupied for a temporary period –the reasons for decision do not include an express finding on the second aspect of the test.

[12] However, a reviewing court may look to the record to assess the reasons of an administrative decision-maker. The court can review the evidence, the submissions of the parties, and any concessions made by a party. The record may explain an aspect of the decision-maker’s reasoning process that is not apparent from the reasons themselves: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; [2011] 3 S.C.R. 708, at para. 15; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 94.

[13] In response to questions from the Board member, the appellant agreed the unit was fully furnished, that the respondent provided linens, kitchen utensils, dishes, and a microwave. He acknowledged taxes were charged on the unit and a cleaning service was provided. The appellant agreed that the unit was “like a motel almost” with “everything” provided.

[14] Although it would have been preferable for the Board member to have stated his finding expressly, the record shows the Board’s conclusion on the second aspect of the test. The Board considered the Airbnb unit to be within “motel”, which is one of the property types listed in the exemption. To the extent the appellant disagrees with this characterization of the property, it is a factual conclusion that is not the subject of an appeal under the Act. I therefore reject the appellant’s submission that the Board erred on this aspect of the test.

[15] Contrary to the appellant’s submission, I also find Matthews et al. v. Algoma Timberlakes Corp., 2010 ONCA 468; (2010), 102 O.R. (3d) 590 to be distinguishable. In Matthews, the tenants had signed long-term leases and erected cottages that they used for year-round second homes. The Court of Appeal concluded the s. 5(a) exemption did not apply because it did not create a blanket exemption for recreational properties and the tenants were otherwise entitled to the protection of the RTA. The property in that case was not occupied for either a temporary or seasonal period and was not comparable to the types of living accommodations excluded by s. 5(a). The circumstances were entirely different and do not demonstrate any error in the Board’s findings here that the Airbnb unit was occupied on a temporary basis and was within the listed types of properties.

[16] I also reject the appellant’s submission that the Airbnb unit could not be exempt under s. 5(a) because it fell within the definition of a “rental unit” in the Act. Although s. 3 of the RTA provides that the Act applies to rental units in residential complexes, it cannot be interpreted to capture units that fall within the exemption described in s. 5(a). That would render s. 5(a) meaningless and would be an absurd interpretation of the Act.

[17] Finally, I do not accept the appellant’s submission that the Board erred in failing to apply the definition of “short-term” as set out in City of Toronto By-law 569-2013 and Municipal Code, Chapter 547, which define short-term rentals as being less than 28 consecutive days. The Board is not bound by City of Toronto by-laws in its interpretation of whether the occupation of a unit is temporary on the facts of an individual case.

[18] Overall, there was no error of law in the Board’s conclusion that the appellant’s occupation of the Airbnb unit fell within the s. 5(a) exemption. This ground of appeal is dismissed.

Was it a breach of procedural fairness to hear both applications together?

[19] There was also no breach of procedural fairness in the Board’s decision to proceed with both applications at the September 27, 2023 hearing.

[20] Section 183 of the RTA directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.” In this case, as the Board member noted, the disposition of the jurisdiction application could have been determinative of the application alleging the appellant was illegally locked out. If, as it found, the RTA did not apply, the Board did not have jurisdiction to determine the issues in the other application.

[21] In deciding to hear the applications together, the Board member did not err by failing to consider prejudice to the appellant. During the hearing, the appellant advised the Board member that he had asked the Board to join the two applications. The appellant also did not object to the Board proceeding with both applications on the date of the hearing.

[22] In all the circumstances, the decision to hear the two applications together was a reasonable exercise of the Board’s discretion to determine the appropriate procedure. It did not constitute a breach of procedural fairness.

Disposition

[23] The appeal is dismissed. As agreed by the parties, the appellant shall pay costs of $4,750 to the respondent.

_______________________________ O’Brien, J

I agree _______________________________

Backhouse, J.

I agree _______________________________

Matheson, J

Released: September 20, 2024

CITATION: Govedaris v. McIlquaham, 2024 ONSC 5127

DIVISIONAL COURT FILE NO.: DC-24-00000005-0000

DATE: 20240920

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Matheson, and O’Brien JJ

BETWEEN:

GIORGIO GOVEDARIS

Appellant

– and –

gordon mcilquham

Respondent

REASONS FOR DECISION

O’BRIEN, J

Released: September 20, 2024

Govedaris v. McIlquham, 2024 ONSC 5127

Case Summary

O’BRIEN J.

Overview

Was it an error of law to conclude the RTA did not apply to the appellant’s occupation of the Airbnb unit?

Was it a breach of procedural fairness to hear both applications together?

Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 4