LTB Order LTB-T-021372-23

2023 ONLTB 33820 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: O. v C., 2023 ONLTB 33820 Date: 2023-05-08 File Number: LTB-T-021372-23 In the matter of: 610, 20 MINOWAN MIIKAN LANE TORONTO ON M6J0E5 Between: O. O. T. A. R. C. L. O. O. (the 'T.') A. F. an O. D. T. R. C. (the 'L.') altered the locking system on a door giving entry to the rental unit or residential complex without giving the T. replacement keys, entered the rental unit illegally, substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. A. harassed, obstructed, coerced, threatened or interfered with the T.. This application was heard by videoconference on April 19, 2023. The T. O. O. A. the T.’s Legal Representative Samuel Mason A. the L. R. C. A. the L.’s Legal Representative Jessica Travers attended the hearing. F. clarity, I have referred to those T. testified at the hearing by their names. Determinations: 1. On March 10, 2023, Ms. O. filed this T2 application with the Board. The allegations in the T2 application can be summarized as follows: • The L. changed the locks to the rental unit without providing the T. replacement keys. O. Page 1 of 10  File Number: LTB-T-021372-23 • The L. entered the rental unit illegally. • The L. substantially interfered with the T.’s reasonable enjoyment of the rental unit. 2023 ONLTB 33820 (CanLII) • The L. harassed, coerced, obstructed, threatened or interfered with the T.. Preliminary Issue 2. At the hearing, the question arose as to whether there is a tenancy agreement between Ms. O. A. Mr. C.. 3. Ms. O. asserted she has a tenancy agreement with R. C.. R. C. did not agree A. asserted he has a valid lease agreement with Michelle Williams A. T. no tenancy agreement exists between himself A. Ms. O.. 4. The parties agreed to deal with the preliminary issue prior to the merits of the application. Both parties were permitted to call evidence A. cross examine the other on the preliminary issue as well as make submissions. 5. The rental unit is a two-bedroom condominium A. contains two bathrooms. 6. R. C. is the owner of the rental unit A. the Respondent. 7. O. O. is the Applicant. 8. Mikayla Williams is the daughter of Michelle Williams. Ms. O.’s Evidence 9. Ms. O. found the rental unit on a website called Roomies. She filled out a profile A. responded to an advertisement titled “Mikayla’s Room”. 10. The online advertisement was F. a private room with its own bathroom. Her evidence was she viewed the unit a couple of days prior to moving in. Present at the viewing were Ms. O., Mikayla Williams, Michelle Williams A. R. C.. 11. Messages from the Roomies website as well as text messages were submitted into evidence. They show Ms. O. A. Mikayla Williams discussing the advertised room. 12. The discussions show T. initially, the room was unavailable as it was being shown to someone else. When T. prospect falls through, a description of the rental space was provided to Ms. O. by Mikayla Williams A. the two discussed the monthly rent amount. Mikalya Williams asks Ms. O. if she can increase her budget A. Ms. O. Page 2 of 10  File Number: LTB-T-021372-23 O. responds T. she could. At the hearing, Ms. O.’s evidence was she A. Mikayla Williams agreed the monthly rent would be $1,000.00. 13. During cross examination, Ms.O. admitted T. she was not provided any of R. C.’s contact information or any instructions or how to pay him rent before or at the time 2023 ONLTB 33820 (CanLII) she moved into the unit. 14. Ms. O. stated she moved into the rental unit around October 15, 2022 A. the total monthly rent was $2,000.00 to be split evenly between herself A. Mikayla Williams. 15. Ms. O. testified she had signed a joint tenancy agreement with Mikayla Williams, naming R. C. as the L.. She submitted a copy of a lease agreement reflecting these names. This document is dated October 6, 2022. This document is not signed by R. C.. Ms. O.’s evidence was she misplaced the signed copy of the lease she was originally provided. Her evidence was the original lease agreement had been emailed to her but she could no longer retrieve the email. 16. During cross examination, Ms. O. reiterated she had signed the lease. When she was asked how this was done, she said it was done electronically. After further questioning, she admitted she had not personally signed anything but Mikayla Williams had signed on her behalf. 17. Ms. O.’s evidence was she paid the monthly rent directly to R. C. by etransfer. A number of e-transfer receipts between the months of October 2022 A. February 2023 were submitted into evidence A. they were not disputed by Mr. C.. They show Ms. O. paid her rent to R. C.. 18. During cross examination, Ms. O. acknowledged Michelle Williams told her the amount of rent to pay A. when it was due. Michelle Williams gave Ms. O. R. C.’s email so she could pay the rent to him. 19. Ms. O. submitted text messages between herself A. R. C.. On February 11, 2023, Ms. O. asks R. C. F. a copy of the lease agreement. R. C. responds by saying there is no lease agreement A. T. Ms. O. had not paid first A. last A. was on a “month to month”. 20. On February 16, 2023, Ms. O. again requests a copy of the lease from R. C.. He responds by telling her to contact her roommate’s mother F. a copy of the lease. Ms. O. testified she was confused A. asked R. C. what Michelle Williams’ role was in this A. T. she asked R. C. F. Michelle Williams’ contact information if she is the L.. O. Page 3 of 10  File Number: LTB-T-021372-23 21. Ms. O. also testified T. R. C. told her he had never rented anything to her A. asked her if she had not rented the unit from Michelle Williams. Ms. O.’s evidence was she did not respond to R. C. or contact Michelle Williams. Her evidence was she was confused at this point as to R. C.’s “role in this entire situation”. 2023 ONLTB 33820 (CanLII) 22. On February 28, 2023 Ms. O. was provided a letter advising her to vacate the rental unit. This notice was signed by R. C. A. identifies him as the L. A. her as the T.. Ms. O. testified T. prior to this in mid to late January 2023, Michelle Williams told her T. she was required to leave the rental sometime in May 2023 because R. C. would be using the space F. personal use. Michelle Williams’ Evidence 23. Michelle Williams testified she leased the entire rental unit from R. C. F. her daughter Mikayla Williams to reside in while she attends school. The lease began on October 1, 2022. She A. R. C. signed the lease on October 6, 2022. Michelle Williams did not reside in the rental unit. A copy of the lease was submitted into evidence A. it is signed by both Michelle Williams A. R. C.. 24. When the lease was signed, Mikayla already had a roommate in mind. However, this person could not move in A. Mikayla went looking F. another roommate. Michelle Williams testified Mikayla had already started moving into the unit at the time the listing on “Roomies” was placed. 25. Michelle Williams testified T. Ms. O. responded to the listing A. attended the unit F. a viewing. She acknowledged T. R. C. was present at the viewing as he was in the unit doing some repairs. Michelle Williams testified T. she told Ms .O. T. she was the actual T. with the lease agreement. 26. Michelle Williams’ evidence was Ms. O. agreed to pay $1,000.00 per month A. she moved in. Michelle Williams testified she told Ms. O. she was to pay the monthly rent to her. 27. Michelle Williams testified T. Ms. O. was unable to pay her full rent. As a result, Michelle Williams advised R. C. the monthly rent would be paid in installments. She asked if R. C. could manage the issue A. speak to Ms. O. since she was going to be on vacation out of the country. Michelle Williams’ evidence was T. R. C. reluctantly agreed to assist but felt it was Michelle Williams’ responsibility since he had rented the unit to her. 28. Michelle Williams testified T. during the time she was away Ms. O. paid her rent to R. C. A. continued to pay it to him once she returned. O. Page 4 of 10  File Number: LTB-T-021372-23 29. Michelle Williams testified she told Ms. O. on January 23, 2023 T. R. C. wanted the unit back F. his daughter to live in A. T. Ms. O. would be required to vacate the unit. It was her evidence T. after this conversation she believed Ms. O. may cause “problems”. She asked R. C. to sign a letter advising Ms. O. to 2023 ONLTB 33820 (CanLII) vacate as it would have carried more weight coming from the actual owner of the rental unit. Michelle Williams testified T. R. C. reluctantly agreed A. signed the letter. I will note this notice was not on a Board approved form. 30. Michelle Williams testified T. the document Ms. O. submitted as a lease is actually her lease with R. C. T. she changed. She testified she took a copy of her lease agreement with R. C. A. removed her name A. added Mikayla A. Ms. O.’s names to it. The reason F. this was to file it with the property management of the building so Mikayla Williams A. Ms. O. would be given access to the facilities at the property. Mikayla Williams’ Evidence 31. Mikayla Williams testified her mother had rented the rental unit F. her A. she was looking F. a roommate after she had taken possession. She testified T. once Ms. O. moved in, she signed a copy of a lease document on Ms. O.’s behalf to give to the property management. The purpose was to allow both of them living in the unit access to the facilities at the building. This document lists both herself A. Ms. O. as Tenants. R. C.’s Evidence 32. R. C. testified he is the owner of the rental unit A. he leased it to Michelle Williams effective October 1, 2022. His understanding was she wanted the unit F. her daughter A. a family friend. A copy of the lease agreement was submitted into evidence A. it is signed R. C. A. Michelle Allen. Mr. C. referred to Michelle Williams as Michelle Allen at one point during the hearing. There was no dispute T. Michelle Williams A. Michelle Allen are the same person. 33. Mr. C.’s evidence was he had no idea the family friend did not move in. He found this out only in March of 2023 during an incident in which the police were called. During cross examination he testified T. he thought Ms. O. was the family friend who was originally supposed to occupy the rental unit with Mikayla Williams. During the hearing Mr. C. stated “I did not know who she was” in relation to Ms. O. A. explained T. he was aware she was living there A. paying her rent to him but she was otherwise a stranger to him. O. Page 5 of 10  File Number: LTB-T-021372-23 34. Mr. C. testified Michelle Williams was supposed to pay the full monthly rent of $2,000.00 to him as part of their agreement. She called him explaining she was away A. the rent would be paid by two emails. He was subsequently contacted by Ms. O. in October 2022 A. she told him she did not have the money A. would pay it in installments. He acknowledged Ms. O. paid her rent to him instead of through 2023 ONLTB 33820 (CanLII) Michelle Williams. Mr. C. testified e-transfers are automatically auto-deposited to his bank account A. Ms.O.’s payments were deposited this way. 35. Mr. C. testified T. he had no other contact with Ms. O. about the rent A. he communicated with Michelle Williams in relation to the rental unit since he had rented it to her. 36. In January of 2023, Mr. C. advised Michelle Williams he needed the rental unit back F. use by his daughter who was going to be back in school. He asked Michelle Williams to return the unit to him the way she received it. I took this to mean vacant. 37. Mr. C. testified T. Michelle Williams asked him to sign a notice advising Ms. O. to vacate the rental unit. His evidence was there was an argument between Michelle Williams A. Ms. O. over the verbal request to vacate. Mr. C.’s evidence was he did not want to get involved but he reluctantly agreed to sign the notice. During cross examination, he acknowledged he signed a document in which he was identified as the L. A. Ms. O. was identified as the T.. 38. The evidence of Mr. C. was T. after he signed this notice, Ms. O. contacted him seeking a copy of the lease. He told Ms. O. to contact Michelle Williams because he did not know who she was. His evidence was there were no ongoing emails or communications between himself A. Ms.O.. 39. On cross examination Mr. C. was asked what he meant when he texted a reply to Ms. O. stating she was on a “month to month”. He explained he was basing T. on what Michelle Williams had told him. He knew she was living in the unit A. T. she was paying rent to him. 40. Mr. C. testified T. prior to seeking legal advice F. this hearing he had limited understanding of the legal meaning of various terms such as lease, rental agreement, occupant, roommate T. or guest. His evidence was he used them interchangeably but understands them now. 41. Mr. C. testified he never had any intention of creating a tenancy with Ms. O.. Analysis O. Page 6 of 10  File Number: LTB-T-021372-23 42. Section 2(1) of the Residential Tenancies Act, 2006 (the Act) defines a tenancy agreement as: “tenancy agreement” means a written, oral or implied agreement between a T. A. a L. F. occupancy of a rental unit A. includes a licence to occupy a rental unit; 43. Section 2(1) of the Act also sets out the definition of a L. A. a T.. It states: 2023 ONLTB 33820 (CanLII) “L.” includes, (a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a T. who occupies a rental unit in a residential complex A. who permits another person to also occupy the unit or any part of the unit, (b) the heirs, assigns, personal representatives A. successors in title of a person referred to in clause (a), A. (c) a person, other than a T. occupying a rental unit in a residential complex, who is entitled to possession of the residential complex A. who attempts to enforce any of the rights of a L. under a tenancy agreement or this Act, including the right to collect rent; A. “T.” includes a person who pays rent in return F. the right to occupy a rental unit A. includes the T.’s heirs, assigns A. personal representatives, but “T.” does not include a person who has the right to occupy a rental unit by virtue of being, (a) a co-owner of the residential complex in which the rental unit is located, or (b) a shareholder of a corporation T. owns the residential complex; 44. In considering the evidence presented at the hearing I am also mindful of section 202(1) of the Act. It requires me to determine the real substance of all transactions A. activities. It reads as follows: In making findings on an application, the Board shall ascertain the real substance of all transactions A. activities relating to a residential complex or a rental unit A. the good faith of the participants A. in doing so, (a) may disregard the outward form of a transaction or the separate corporate existence of participants; A. (b) may have regard to the pattern of activities relating to the residential complex or the rental unit. O. Page 7 of 10  File Number: LTB-T-021372-23 45. I found the evidence of Ms. O. respecting the nature of her agreement to occupy the rental unit to be unreliable. She first stated she had signed a lease directly with Mr. C.. She testified she received a copy of it but could not access it in her email. She provided an unsigned copy in her evidence to support her application. During cross examination she 2023 ONLTB 33820 (CanLII) admitted she had not signed a lease agreement with Mr. C. but had Mikayla Williams sign it F. her. I find on a balance of probabilies this was the document Michelle Williams created to allow Ms. O. A. Mikayla Williams access to the facilities at the building. 46. I am convinced on a balance of probabilities no signed lease agreement ever existed between Ms. O. A. R. C.. I do not find Ms. O. was being dishonest in any way during her testimony. However, her testimony regarding a highly relevant piece of evidence was clearly inaccurate. In my view, she was mistaken in her recollection of the events A. as a result, I had concern with the reliability of the remainder of her evidence given the subject matter of this inaccuracy was not trivial. 47. It is clear from the evidence taken at the hearing, there was no written agreement between Ms. O. A. Mr. C. whereby Ms. O. would pay rent to Mr. C. in exchange F. the right to occupy the rental unit. I also find on a balance of probabilities no oral agreement existed between Ms. O. A. Mr. C.. No evidence was presented T. Ms. O. A. Mr. C. had discussed terms, dates, rent amounts or any other details required to form an oral agreement prior to Ms. O. moving into the rental unit. Ms. O. had all such negotiations with Mikayla A. Michelle Williams. Michelle Williams was herself a T., A. it was Ms. Williams who provided Ms. O. with possession of the rental unit. 48. I must also consider whether an implied tenancy agreement existed between Ms.O. A. Mr. C.. 49. Mr. C. was aware Ms. O. was residing in the rental unit with the daughter of his T. Michelle Williams. I accept his evidence T. he did not know her before she moved in A. believed her to be the family friend of Michelle Williams until he learned she was not. 50. After her occupancy began, Ms. O. started paying her share of the rent directly to Mr. C., which can be indicative of a tenancy agreement. However, I accept the evidence of Michelle Williams A. Mr. Clark T. this practice only began out of convenience F. Michelle Williams who was away on vacation. She asked Mr. C. to assist with the collection of Ms. O.’s rent A. he did. I do not find it unreasonable T. a L. is content when they receive the rental revenue they expect, regardless of who chooses to pay it. T. Ms. O. continued to pay her rent this way is not determinative of the issue in my view. Additionally, Ms. O. took direction from O. Page 8 of 10  File Number: LTB-T-021372-23 Michelle Williams on the amount to pay A. when. In the circumstances, I do not think the payments to Mr. Clark alone, can support a finding of an implied tenancy agreement. 51. The communications between Mr. C. A. Ms. O. could also be taken to imply a tenancy agreement, however context is important. Firstly, Mr. C. clearly indicates to 2023 ONLTB 33820 (CanLII) Ms. O. there is no lease between them. Further Mr. C. specifically told Ms. O. he did not rent anything to her. I accept Mr. C.’s explanation T. his statement T. there was a “month to month” arrangement was based on a combination of his limited legal understanding of the words being used A. what Michelle Williams had told him about who was living in the rental unit. I find on a balance of probabilities T. when viewed in its totality, the communication between the parties does not establish the existence of implied tenancy agreement. On the contrary, it supports Mr. C.’s testimony T. he had never entered into a tenancy agreement with Ms. O.. 52. The notice to vacate Ms. O. received was signed by Mr. C. A. it identified him as the L.. On its face, this notice could be indicia of an implied tenancy agreement. I accept the explanation F. this document provided by Michelle Williams A. Mr. C.. Michelle Williams was concerned she would have difficulty returning vacant possession to Mr. C. A. wanted a notice singed by the owner. I do not find on a balance of probabilities the misuse of terms “L.” A. “T. in this notice to be indicative of an implied tenancy. Particularly since Mr. C., at the time the notice was signed, was in fact the L. of this rental unit, albeit to Michelle Williams. 53. In their communications, Mr. C. specifically told Ms. O. to contact Michelle Williams in relation to questions about a lease. Ms. O. admitted this left her confused as to who the L. was. Inexplicably, she did not contact Michelle Williams F. clarification of her own concerns. Ms. O.’s own confusion A. her subsequent inaction, is in my view, on a balance of probabilities, evidence an implied tenancy agreement did not exist. 54. No evidence was presented at the hearing of any typical communications between Ms. O. to Mr. C. T. might be expected in these parties in fact had a L. A. T. relationship. F. instance, no evidence of any maintenance requests made by Ms. O. to Mr. C. were presented. No evidence of any discussion regarding the unit or the building were presented. No evidence of notices of entry were tendered. Nothing was given in evidence T. showed the two interacted in any way apart from the communications I have already addressed. I find on a balance of probabilities this lack of any interaction between the parties does not support a finding of an implied tenancy agreement. 55. Additionally, pursuant to section 202(1) of the Act, when I consider the real substance of the transactions A. activities of the parties, I do not find T. Ms. O. A. Mr. C. intended at any point to create a tenancy agreement between themselves. They discussed O. Page 9 of 10  File Number: LTB-T-021372-23 no details or terms A. agreed on nothing together. The also signed nothing together. Their actions do not imply a tenancy agreement between them. I find of a balance of probabilities Mr. C. had a valid lease agreement with Michelle Williams A. had no interest in a tenancy agreement with Ms. O.. I also find Ms. O. knew or should have known her living accommodation was arranged with Mikayla A. Michelle Williams 2023 ONLTB 33820 (CanLII) A. this relationship did not change while she lived in the rental unit. 56. This is a T. application. It is therefore the Applicant’s burden to prove on a balance of probabilities a tenancy agreement existed between the Applicant A. the Respondent. When I consider all the evidence presented A. the circumstances surrounding the activity between the parties, I am not satisfied Ms. O. has done so. As Ms. O. was not a T. of the rental unit, she does not have standing under section 29(1) of the Act to file this application. 57. Further, Ms. O. cannot file an application against Ms. Williams despite the fact T. it was Ms. Williams who allowed her to occupy the rental unit. The definition of “L.” in section 2(1) of the Act expressly excludes a T. who is occupying the rental unit. As Ms. Williams was the actual T. occupying the rental unit she is not considered a L. under the Act. 58. F. the above reasons, I do not find the Act applies to Ms. O.’s residency at the rental unit as there was no tenancy agreement between her A. Mr. C.. As a result, the application will be dismissed. 59. This O. contains all my determinations A. reasons. No further reasons will be issued. It is ordered T.: 1. The application is dismissed. May 8, 2023 ____________________________ Date Issued John Cashmore 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