LTB Order LTB-T-050184-22

O. under Section 9(2) Residential Tenancies Act, 2006 Citation: D. v Huang-J., 2023 ONLTB 15357 Date: 2023-01-17 2023 ONLTB 15357 (CanLII) File Number: LTB-T-050184-22 In the matter of: 370A Churchill Court Waterloo Ontario N2L6B4 Between: J. D. T. A. C. Huang-J. L. M. J. D. J. J. D. (the 'T.') A. F. an O. to determine whether the Residential Tenancies Act, 2006 (the 'Act') applies (A1). This application was heard by videoconference on January 11, 2023. The Landlord A. the T. attended the hearing. The Landlord’s witnesses, Nathaniel J. (NJ), A. Andrew J. (AJ) also attended the hearing. Preliminary Issues: D. J. stated that she A. her father, M. J. were co-owners of the residential complex with her mother, C. Huang-J.. The T. responded that the tenancy agreement signed by the parties showed she was a representative of the Landlord but did not oppose an amendment to reflect the names of the three L.. The application is amended to include D. J. (DJ) A. M. J. as parties to the application. Although I find that the named T. is not a T. A. the unit is not covered by the Residential Tenancies Act, 2006 (the 'Act'), F. ease of reference the parties are referred to as “L.” A. “T.” F. the purpose F. this O.. Determinations: 1. The rental unit is one of two units in the basement of the home which contains three bedrooms in the upper level. The T. rented the unit from the L. in December 2015 A. shared the kitchen A. bathroom in the basement with DJ who occupied the second room in the basement (‘second unit’). O. Page 1 of 3  File Number: LTB-T-050184-22 T.’s Evidence 2. The T. stated that they shared the kitchen A. bathroom with DJ at the commencement of the tenancy. However, they stated that DJ was in the second unit only F. four months at a time A. out F. another four. During her time away, her unit was either vacant or rented 2023 ONLTB 15357 (CanLII) out. 3. In January 2017 A. F. a period of at least 4 months, an individual, Shawn occupied the second unit. The T. was unaware if DJ returned to the unit after that time. The T.’s brother, Robert occupied the second unit F. a certain period about the beginning of 2021 A. moved out at the end of the same year. 4. The T. further stated that a new tenancy was created in January 2017 when the L., at the T.’s request sent a copy of a new tenancy agreement which the T. signed on January 11, 2017. A copy of the new tenancy agreement was presented as evidence at the hearing but it is not signed by the L.. The L. acknowledged sending the new tenancy agreement to the T.. L.’ Evidence 5. The Landlord, CJ, stated that they purchased the rental unit in 2015 F. the sole purpose of having a unit in town F. their children as they attended school. 6. The Landlord, DJ, testified that at the end of each school year, she left town F. co-op opportunities F. a period of four months until she graduated in 2016. F. the period from March 2017 to August 2017, her brother AJ resided in the second unit after switching units with Shawn in March 2017. 7. DJ further stated that her brother, NJ, at one point moved into the second unit when the T.’s brother Robert, requested a transfer after residing in that unit F. a few months in 2020, from May 2020 to October 2020. DJ believes that NJ occupied the second unit from March 2020 to January 2022. 8. The L.’ witness, NJ, testified that he resided in the second unit at the start of the pandemic in 2020 but had to leave due to the pandemic. He claimed that some of his belongings remained in the unit until his return in January 2022 but the T. opposed the claim, stating that the unit was vacant. 9. The Landlord's witness, AJ, testified that he resided in the second unit from March 2017 to August 2017, when he moved out to pursue a co-op opportunity out of town. He returned in September 2018 A. was in the unit until December 2018. The T. stated that they were uncertain if AJ was in the unit in March 2017 but did not oppose his testimony. Analysis 10. Based on all the evidence, there is no dispute that at the start of the tenancy in December 2015, the T. was required to share the bathroom A. kitchen facility in the basement with the Landlord, DJ. 11. As DJ was sometimes away from the unit due to end of school activities, the unit was occupied at different times by her siblings, the T.’s sibling, A. Shawn. At the time of O. Page 2 of 3  File Number: LTB-T-050184-22 the purported new tenancy which was signed by the T. on January 11, 2017, there was no plan F. DJ or any of her siblings to stop occupying the second unit A. in fact, the T. did not dispute AJ’s claim that he resided in the second unit A. so shared the bathroom A. kitchen with the T. from March 2017 to August 2017, A. again from September 2018 to December 2018. 2023 ONLTB 15357 (CanLII) 12. This pattern of activities leads me to the conclusion that despite the T.’s claim of a new tenancy in 2017, the dynamics in the relationship in terms of the sharing of the kitchen A. bathroom, did not change. 13. Having determined that the T. was required to share kitchen A. bathroom facilities in the basement with the Landlord’s family members, I considered section 3(1) of the Act which states that the Act applies with respect all rental units despite any other Act A. despite any agreement or waiver to the contrary. “Rental unit” is defined in section 2(1) of the Act as “any living accommodation used or intended F. use as rented residential premises”. I am satisfied that the premises in question in this application meets this definition. 14. However, the Act also contains a few exemptions A. section 5(i) of the Act specifically provides: Exemptions from Act 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, A. where the owner, spouse, child or parent lives in the building in which the living accommodation is located; … 15. In this case, A. despite the T.’s arguments that DJ was away from the second unit F. up to four months at a time, the evidence demonstrates that the T. was required to share the bathroom A. kitchen in the basement with her from the commencement of the tenancy. This requirement to share the facilities did not change in 2017 after the purported new tenancy agreement because the L.’ child, AJ resided in the second unit from March 2017. Therefore, I find the unit is exempt from the provisions of the Residential Tenancies Act, 2006. It is ordered that: 1. The Act does not apply. January 17, 2023 Date Issued Jitewa Edu Member, Landlord 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 3 of 3