LTB Order LTB-L-062277-23

O. under Section 9(2) R. T. Act, 2006 Citation: L. v C., 2023 ONLTB 75620 Date: 2023-11-23 2023 ONLTB 75620 (CanLII) File Number: LTB-L-062277-23 In T. matter of: 454 MOHAWK ROAD WEST HAMILTON ON L9C1X4 Between: A. C. T. A. J. L. L. J. L. (T. 'L.') A. F. an O. to D. W. T. R. T. Act, 2006 (T. 'Act') applies to T. rental unit at 454 MOHAWK ROAD WEST HAMILTON. This application was heard by videoconference on October 3, 2023. T. L. A. his counsel, Ms. K. Hawkes, A. T. T. A. her counsel, Mr. W. Chapman attended T. hearing. Determinations: 1. Based on T. evidence before me, I am satisfied on a balance of probabilities that s.5(i) of T. R. T. Act, 2006 (T. Act), does apply to T. rental unit or R. complex, A. as a result, T. unit is excluded from T. protection of T. Act. 2. This application is made by T. L. F. a determination of W. T. rental unit is excluded from T. protection of T. Act by virtue of s. 5(i). Exemptions from Act 3. Section 5(i) of T. Act states: 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 T. owner, T. owner’s spouse, child or parent or T. spouse’s child or parent, A. where T. owner, spouse, child or parent lives in T. building in which T. living accommodation is located; 4. There are four questions F. determination: O. Page 1 of 10  File Number: LTB-L-062277-23 (i) does T. Act apply to T. rental unit, which turns on three questions: (a) are T. L. A. T. T. required to share a bathroom or kitchen facility; (b) did T. L. live in T. building/house in which T. living accommodation is 2023 ONLTB 75620 (CanLII) located at T. time T. tenancy commenced in September 2019; A. (c) did T. L. subsequently vacate T. house such that T. Act took effect at a later date, with respect to T. living accommodation of T. T.. 5. I use T. terms “L.’ A. “T.” simply as a convenient way to refer to T. parties, A. not as a way of describing their actual relationship or any nexus to T. Act. Background Facts 6. T. house in which T. rental unit is located is owned by T. L.. 7. T. R. unit is part of T. house. 8. T. house is 1.5 stories. There is a rental unit in T. basement which is not relevant to this application. 9. T. main floor consists of a front porch, a living room, a first bedroom, a bathroom, a den or second bedroom, A. a kitchen. 10. There is a flight of stairs from T. kitchen up to a second floor. T. second floor has a bedroom, a living room A. a bathroom, A. there is no dispute that it was at all times F. T. L.’s exclusive use. 11. T. only way to access T. second floor is by T. staircase in T. kitchen. Access to T. kitchen was only by way of T. front door, then through T. living room, through a hall A. into T. kitchen. 12. T. L. had lived in T. house since 2017, two years before T. T. moved in. 13. In July of 2019, T. T. was a worker engaged by T. L. to renovate his property. A new deck was put in at T. front of T. house with a fence. 14. T. L. A. T. were in discussion in July 2019 about T. house A. T. T. moving in on T. main floor. 15. T. T. moved into T. main floor of T. house in September 2019. T. rent was $500.00/month. A lease was signed, but T. T. claims she was never given a signed copy. 16. T. lease describes T. rental unit as “a unit in a duplex, triplex, or fourplex” (s. 1). No other persons were entitled to occupy T. premises without T. consent of T. L. (s. 5), except F. casual guests. T. L. was to supply a stove, refrigerator, washer A. O. Page 2 of 10  File Number: LTB-L-062277-23 dryer, furnace, water heater, A. dishwasher (s. 7(b)). T. L. was required to give at least 24 hour’s written notice before T. time of entry to carry out repairs etc. (s. 11). T. T. was required not to alter amend or change T. décor of T. premises without consent from T. L.. 2023 ONLTB 75620 (CanLII) 17. In June 2020, T. L. sent an email to T. T. to raise T. rent to $700.00. T. L. gave T. T. 90 days’ notice. T. justification F. T. increase was because T. back deck A. fence around T. back yard would be completed by September 1, 2020 A. added additional value to T. house. 18. On June 28, 2023, T. L. was denied access to T. property by T. T.’s boyfriend. T. police would not give him access without proof that T. Act did not apply. 19. A notice of trespass was then issued A. taped to T. front door. 20. T. L. then brought this application F. a determination of W. T. Act applies to T. rental unit in T. house. Evidence of T. Parties T. L.: 21. T. L. testified that T. house was his primary residence A. has been since 2017. 22. He testified that there was no kitchen in T. upstairs part of T. house, which was his exclusively. He did have a bathroom upstairs. 23. T. L. testified that when he was at home at T. house, he used T. kitchen, on T. main floor, prior to covid. After covid, he would come to change, as he was locked down in T. US during covid. 24. T. L. testified that T. T. rented T. first bedroom on T. main floor. This was T. only room she had exclusively to herself. As there was only one kitchen, it was T. understanding of T. parties in September 2019 that T. kitchen was to be a shared area. T. parties would also share T. den, living room space A. bathroom on T. main floor. 25. At T. time T. lease was signed, there was no door separating T. upstairs A. T. main floor kitchen, at T. staircase point. T. last time T. L. was allowed into T. house, on June 28, 2023, a door had been put in place, separating T. upstairs of T. house from T. main floor kitchen. He was surprised to see it A. had not given consent to it being installed. 26. As to T. amount of time he spent at T. house, T. L. testified that in a month, he would be in hotels F. 3 weeks, A. then work from home F. a week. He said he loved to go to his home. He had a bed there. 27. T. texts between T. L. A. T. also shed light on T. nature of T. living arrangement in T. house, in places where T. lease is silent. F. example: O. Page 3 of 10  File Number: LTB-L-062277-23  T. T. wrote in July 2019: “Well we’ll be living together so well (sic) have plenty of time!”  T. L. wrote on July 12, 2019: “my contract in Memphis just got extended until T. end of T. year, so I will likely only be home F. 1 week a month until then.”  T. T. wrote on September 13, 2019: “A. T. house is great, slowly coming 2023 ONLTB 75620 (CanLII) together! Got a 55 inch so you’ll enjoy watching tv a bit more”  T. L. wrote on October 9, 2019: “If you want to be able to lock your bedroom door when you’re out, there is a key in T. top drawer of my desk upstairs”  T. T. wrote on October 11, 2019, “Is it ok to being (sic) my very well-trained cat to T. house.”  T. T. wrote November 6, 2019: “But if you like him [ ie T. cat] A. all is well then hes (sic) our newest family member to T. home”  T. T. wrote on April 10, 2020: “I was thinking of making T. second room into an entertainment/office room F. us”  T. T. wrote on April 25, 2020: “If you ever do plan on moving let me know how much T. upstairs would be”.  T. T. wrote in June 2020, in reply to T. L.’s email that he was raising T. rent to $700/month: “I got your email A. 700 is reasonable, however, as you mentioned it is F. T. entire floor so can we arrange to have your belongings in T. second room removed so I can actually have use of that room/whole floor.” T. L. quickly dispelled any such arrangement with his text: “Ha! T. email actually doesn’t say anything about T. whole floor being yours.” He then offered to take his couch out of T. second room to give her more space, though T. piano would stay in that room. She replied: “Okay I see your (sic) firm on this issue, im (sic) not gonna try to persuade you any further A. ill (sic) make due (sic) (smile emoji)”  T. L. requested a key F. both himself A. his mom, as T. T. had changed T. lock to T. front door (July 13, 2020). 28. Under cross examination from Mr. Chapman, T. L. testified that his stuff could be seen in T. fridge before COVID. His non-perishable food was in T. cupboards, A. T. dishes were his which he used when he ate there. He used T. kitchen from July 2019 to March 2020, when covid struck. He testified that he cooked steaks, bacon A. eggs, which were his go-to, with avocado, A. blueberry A. strawberry shakes. He claimed he had Russ Govan over F. steaks in 2019. He testified that he told T. T., in June 2019, that T. kitchen would be shared. He gave an example where he had to remind her to turn off T. burners on T. stove, A. this text was in evidence. 29. T. L. testified that he would text T. T. to let her know when he was coming home, because they were friends. 30. He reiterated under cross examination that A. (T. T.) rented a bedroom only, A. T. rest of T. complex was shared. Upstairs was his area. T. ground floor, minus her bedroom was shared. She paid $500 a month A. their relationship was amicable. There was a joint TV room. He testified that he was also entitled to use T. bathroom on T. main floor. O. Page 4 of 10  File Number: LTB-L-062277-23 31. T. L. also testified that he had T. same arrangement with T. previous T.. They also shared T. kitchen. 32. I found T. L.’s evidence to be candid, straightforward A. internally consistent. 2023 ONLTB 75620 (CanLII) T. T.: 33. T. T. testified in her examination in chief that T. arrangement was that she would rent T. whole unit, with low rent, because T. furniture of T. previous T. was there. She stated that there was no discussion about T. kitchen prior to T. lease. She testified that from July 19, 2019 to March 2020, T. L. had never used T. kitchen. T. L. lived in T. US. He was not aware of what was left in T. house, A. he would deal with that when he came back. She said he had canned food in T. house from 2014. She said he did not use T. house after March 2020 either. 34. T. T. testified that in T. summer of 2019, she was looking F. a place in Hamilton A. was a worker at T. house. She then said, “J. said he had a room that was available. He was in T. process of evicting T. previous T.. T. rent was low because his stuff was there as were T. belongings of T. previous T..” She said T. L. said she was doing him a favor by taking over that room. She clarified that “room” meant T. room T. previous T. had leased. 35. She then testified, when she moved in, it was T. room only; it then turned into T. whole unit. She claims he offered her T. whole unit, without a rent increase, in November 2019, two months after she moved in. She then checked T. lease, which she claims referred to T. unit, not just a room. 36. But under cross examination, T. T.’s story faltered. 37. F. example, she gave inconsistent evidence about what T. lease entailed. She initially claimed that she believed she would be getting T. entire floor. She then testified that what was initially agreed was that she would just get T. room. They did not talk about T. whole unit until November 2019. This was a clear contradiction in her evidence. 38. She gave inconsistent evidence about W. T. L. had moved out. She testified that T. L. had moved out A. used T. upstairs only F. storage. A. yet, if this was T. case, why would he always text her about coming home to T. house, after a business trip. Also, why would she offer T. cat A. TV F. T. main floor if he was not using it. 39. When asked about T. time that they acquired T. whole unit, she could not remember, though she had previously testified that it was in November 2019. She then admitted it was in November 2019 that she acquired T. whole unit. 40. She could not explain T. documentary evidence which proved she did not have T. entire floor as of June 2020. She was referred to her text message of June 2020, where she asked T. L. if she could have T. entire floor, A. to repeat, her precise words were: “I got your email A. 700 is reasonable, however, as you mentioned it is F. T. O. Page 5 of 10  File Number: LTB-L-062277-23 entire floor so can we arrange to have your belongings in T. second room removed so I can actually have use of that room/whole floor”. 41. Clearly, by June 2020, she did not have T. entire floor, contrary to her story that she had T. entire main floor from November 2019 on. She was asking F. it in June 2020. But T. 2023 ONLTB 75620 (CanLII) L. clearly did not agree, A. said so in a reply to her text. She then replied saying she would not push T. issue. 42. She then contradicted herself in er testimony, that T. house was both of theirs A. then testifying that it was just hers. She testified that T. understanding was that “T. house was to be both of theirs”. She then corrected herself, A. said, “I mean, it was just mine.” Another clear inconsistency. 43. I prefer T. L.’s evidence that prior to COVID, he was home 25% of T. time, because his testimony was supported by a text message which corroborated this testimony. She testified that T. L. was in T. US full time, A. yet there were many text messages about him coming home to T. house. Moreover, there was a period of time when he could not come home, as he was stranded in T. US during COVID. Yet she testified that he was “never home”. 44. I prefer T. L.’s evidence that he used T. kitchen to cook because it had specificity, A. consistency, as opposed to her evolving evidence that he never used T. kitchen to cook. She testified that T. L. never cooks in T. kitchen A. that all he had in T. kitchen cupboards was expired canned goods, paper, tape, A. Christmas things. In my view, her evidence in this respect is at odds with all T. text messages about sharing T. living space. She never asked to clear anything out of T. kitchen. If T. kitchen was in her exclusive possession, it is unclear to me why she would allow him leave these things in T. kitchen. 45. Analysis 46. In terms of T. main issues F. determination, case law has developed a clearer understanding of how s. 5(i) of T. Act actually applies to T. facts of this application. 47. Firstly as to W. T. L. A. T. T. are required to share a bathroom or kitchen facility, T. question arises as to what is T. relevant time period F. assessment. 48. Ms. Hawkes, referred me to Cowie v. Bindlish, 2010 ONSC 2628, a decision of T. Divisional Court. It was held that T. LTB must examine T. situation between T. parties at T. commencement of T. lease: [16] It is my respectful view that neither view was a sufficient basis on which T. board was entitled to decline jurisdiction. Both board members erred in law, albeit differently, in their respective interpretation of section 5 (i) of T. Act A. we must now interfere. T. section explicitly creates an exemption from T. general application of T. Act only if T. person in T. category of T. respondent “lives in T. building in which T. living accommodation is located”. That means that T. respondent was required to live in T. building at T. time when she rented T. room to T. appellant in O. F. T. exemption to apply. It was not O. Page 6 of 10  File Number: LTB-L-062277-23 sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time. [17] Any interpretation of section 5 (i) of T. Act that would permit T. respondent to unilaterally cause T. board to be deprived of its jurisdiction to hear T. appellant’s 2023 ONLTB 75620 (CanLII) application by forming an intention in her own mind without communicating it to T. appellant or by moving into T. house at a later time would be contrary to T. language of T. section A. T. intention of T. Legislature A. would be grossly unfair. It would also effectively result in an unwarranted revision of T. tenancy agreement that T. parties had made. [18] Any such interpretation would also, in my view, be inconsistent with T. objectives of T. Act as reflected in sections 1 A. 3 (1) of T. Act. 49. Further, in McKnight v. Kirk, 2022 ONSC 3617, also a decision of T. Divisional Court, it was held that authorities subsequent to Cowie, have held that T. Board must examine T. circumstances throughout T. tenancy to D. W. T. Act began to apply at a later point in time: [23] T. T. submits that T. Member failed to explain why she departed from Cowie v. Bindlish A. LTB decisions that have subsequently found that T. Board must examine T. circumstances throughout T. tenancy to D. W. T. RTA began to apply at a later point in time. [24] In SWL-17145-18, 2018 CanLII 88667 (ON LTB), T. L. A. T. initially shared T. kitchen A. bathroom, until T. L. moved to a new residence with his spouse A. baby. T. LTB found that T. RTA A. from T. date T. L. vacated T. premises. T. LTB found that, while T. L.’s departure was a unilateral action that would affect T. tenancy, its finding was nonetheless consistent with this court’s holding in Cowie v. Bindlish because T. unilateral act would cause T. RTA to apply, rather than to cause T. RTA to cease to apply. [25] In TET-87517-18-IN, 2018 CanLII 42846 (ON LTB), T. LTB found that T. L. actually resided in a separate unit A. “staged” his living situation to evade T. application of T. RTA. [26] In TET-79055-17-RV, 2017 CanLII 60359 (ON LTB), T. LTB found that T. s. 5(i) exemption A. because it was clear at T. outset of T. tenancy that T. L.’s daughter would be moving into T. premises A. that T. kitchen A. bathroom would be shared. T. daughter’s delay in moving in did not cause T. RTA to apply. 50. Secondly, as to T. terms “lives in T. building” A. “required to share”, in McKnight v. Kirk, T. Divisional Court held that T. question is not W. T. family member is “required to share” with T. tenants, but T. reverse, W. T. tenants are required to share with T. family member: [29] In addition, T. Member properly interpreted T. terms “lives in T. building” A. “required to share.” T. T. argues that J. was not “required to share” T. bathroom O. Page 7 of 10  File Number: LTB-L-062277-23 A. kitchen with T. tenants because she was able to use T. bathroom A. kitchen in T. owner’s first floor unit. However, based on T. express words of s. 5(i), T. question is not W. T. family member is “required to share” with T. tenants, but W. T. tenants are required to share T. facilities with T. family member. There was evidence before T. LTB that while J. used T. first-floor bathroom to shower, she regularly used T. second- 2023 ONLTB 75620 (CanLII) floor bathroom, kitchen A. laundry facilities. T. tenants had no alternative facilities A. were therefore required to share with J. 51. In my view, based on T. authorities, I must first look at T. situation at T. time T. parties entered T. lease, as T. relevant period F. assessing T. application of T. s. 5(i) exemption. 52. Secondly, I must be alive to T. fact that if T. L. vacated T. unit after entering T. lease with T. T., or otherwise agreed to alter T. terms of T. arrangement, T. Act may begin to apply at that later date. Were T. L. A. T. required to share a kitchen or bathroom at T. time T. lease was entered 53. In my view, T. evidence is all one way that as of T. commencement of T. lease, T. T. was only leasing her bedroom, A. that T. kitchen was shared. 54. T. T. herself admitted that T. pre-lease discussions were F. her to rent a room only. If she had exclusive possession of T. bedroom only, it follows logically that T. kitchen was shared. 55. Her evidence that she was entitled to T. whole floor simply cannot stand when one considers that as of June 2020, T. documentary evidence is clear that she did not have T. whole floor, but wanted it F. T. $700.00 she was required to pay. T. L. clearly told her that she did not have T. whole floor A. she accepted that this was T. case by her written reply. 56. There was only one kitchen in T. house (ie excluding T. basement unit which is not relevant). In other words, T. parties were forced to share T. kitchen as it was T. only one. 57. T. L.’s evidence that he cooked steaks F. Russ Govan in 2019 gave an air of reality to his claim to be sharing T. kitchen. 58. T. only kitchen T. T. had access to was T. one she shared with T. L., T. same kitchen he needed to access his rooms on T. upper floor. 59. T. L. used T. kitchen F. cooking from September 2019 to March 2020. In one text, he called her out F. not turning of a burner on T. stove, which also shows that T. kitchen was shared. O. Page 8 of 10  File Number: LTB-L-062277-23 Did T. L. live in T. house at T. commencement of T. lease 60. T. lease commenced September 1, 2023. T. L. had been living in T. house since 2017. There was no evidence that he moved out in September 2019. 2023 ONLTB 75620 (CanLII) 61. Moreover, between T. period of September 1, 2019 to March 2020, when COVID hit, there was a good deal of evidence by way of text messages about T. L. giving notice that he would be coming home. 62. In her cross examination of T. T., Ms. Hawkes put to T. claimant T. question of how was it possible that T. L. did not live at T. house, with all T. back A. forth texts about him giving her notice that he was coming home. Her answer was that he arrived once in 6 months, A. it’s been three years since he came. 63. In my view, this allegation is not supported by T. evidence. 64. At T. commencement of T. lease, T. parties had a cordial relationship, A. I find that T. L. did live in T. house, some 1 week out of 4, during T. pre-COVID period. I prefer T. L.’s evidence on this point as it was clearly A. consistently given. Did T. L., subsequent to T. commencement of T. lease, vacate T. building 65. This question is less straightforward. 66. There is no question that T. relationship between T. L. A. T. T. in this case was irregular. T. L. consistently expanded T. scope of T. T.’s rights to T. house. In this respect, I am sympathetic to T. T.. He stood by A. allowed her to renovate T. house, move his furniture to T. second floor or garage, let T. cat upstairs, take over T. den - save F. T. piano, even change T. locks to T. front door. He even had no problem with her using his desk A. monitor upstairs. 67. But T. documentary evidence really only goes to October 2021, A. T. picture after that is less clear. 68. However, it seems that T. rent stayed at $700.00 throughout T. lease. 69. T. L. kept a key to T. front door as did his mother, A. T. T. did not have an issue with this, which would be impossible to accept if she had exclusive possession of T. entire main floor. Further, T. mother would come by T. unit to prepare T. son’s room, as T. L. testified. 70. When T. L. visited T. house F. T. last time in June 2023, he was surprised to see T. door between T. kitchen A. T. upstairs, A. was adamant that he did not authorise it. 71. T. T. did request T. L. to let her know if he ever wanted to move out from upstairs, but there is no evidence that he ever did. O. Page 9 of 10  File Number: LTB-L-062277-23 72. T. T. provided no evidence that T. upstairs was ever F. her use, A. so it was obviously F. T. L. alone. 73. I find that T. L. did not vacate T. house such that T. Act started to apply to T. tenancy at some later date. 2023 ONLTB 75620 (CanLII) Questions Answered 74. I therefore make T. following findings: (i) T. Act does not apply to T. living accommodation of Mr. L. A. Ms. C., because, within T. meaning of s. 5(i) of T. Act: (a) Ms. C. A. Mr. L. were required to share a kitchen A. bathroom in T. house at T. time they entered T. lease; (b) Mr. L. lived in T. house at T. time Ms. C. moved in in September 2019; A. (c) Mr. L. did not vacate T. house at a later date, A. thereby T. Act did not begin to apply at any subsequent point in time. It is ordered that: 1. T. R. T. Act, 2006 does not apply to T. relationship between T. parties. November 23, 2023 Date Issued James Campbell Member, L. A. T. Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about this O., call 416-645-8080 or toll free at 1-888-332-3234. O. Page 10 of 10