|
RTA - Standing. Miller Estate v. Arguelles
In Miller Estate v. Arguelles (Ont CA, 2026) the Ontario Court of Appeal allowed a tenant's RTA appeal, this respecting s.48 ['Notice, landlord personally, etc., requires unit' (personal possession)] and s.71.1 ['Application based on certain notice' (supporting affidavit)] issues.
Here the court usefully considered the status of LTB and subsequent proceedings where the landlord dies during them:[33] The plain language of s. 48(1) also requires that the prescribed criteria permitting the termination of a tenancy must still be in place at the time of termination. It is an error for the Board to consider the relevant circumstances only at the time of the delivery of the N12 notice: Elkins, at para. 71.
[34] A tenancy is not terminated until the requisite notice period has expired or until terminated by order. As a result, the landlord must meet the statutory criteria on the termination date on the N12 notice, if the notice is valid and not contested by the tenant. If it is contested, the criteria must be met on the date when the tenancy is terminated by order of the Board or by the court after all appeals have been exhausted: see, for example, Elkins, at para. 71-72; Hefzi, at paras. 22-28; Schuld v. Li, at paras. 28-31.
[35] To hold otherwise would defeat the protective legislative purpose informing these provisions. In keeping with its remedial nature and tenant protection focus, the RTA circumscribes the termination of tenancies, focusing on the security of tenure for tenants and preventing unlawful evictions: White, at para. 10; Elkins, at para. 42; Ricketts, at paras. 97-99, per Nakatsuru J., dissenting, but not on these points. Section 48 represents a clear exception to the regime that protects against no fault evictions: Slapsys, at para. 12. Reading this section in the context of the RTA as a whole, the specific purpose of the exceptional provisions in this section should be read as to limit the circumstances in which a landlord may give a notice to end a tenancy: Schuld v. Niu, 2019 BCSC 949, at para. 17.
[36] The potential for abuse of the landlord’s own use provisions by unscrupulous landlords is obvious. For the tenant’s protection, it is therefore crucial that the landlord seeking to terminate a tenancy under s. 48(1) meets all of the statutory criteria on the actual date of termination.
[37] In the present case, the Board and the Divisional Court erred by considering only whether the landlord had met the statutory criteria under s. 48(1) of the RTA on the date of the June 2022 N12 notice. The death of Ms. Miller prior to the termination of the tenancy invalidated the June 2022 N12 notice and the eviction application. Neither Ms. Miller’s son nor her Estate had the requisite standing under s. 48(1) to continue the application and terminate the tenancy for Ms. Miller’s daughter’s occupation of the Unit.
[38] First, John Miller had no standing as landlord to continue the application because he did not meet the statutory criteria for landlord’s own use under s. 48(1) of the RTA; the landlord’s sister is not among the listed individuals who may take possession under the landlord’s own use termination provisions.
[39] Second, the Estate of Ann Miller is not an individual and has no standing to bring an eviction application on the basis of landlord’s own use, pursuant to ss. 48(1) and (5) of the RTA. There was no evidence that any other individual had standing to bring the eviction application based on landlord’s own use.
[40] The Board referenced Ms. Miller’s Last Will and Testament (the “Will”), which indicates that the residue of the estate was to be divided into four equal parts, to be transferred to each of her four children. However, as the Board notes in its reasons, the Estate had not yet been settled, and the Unit was still registered in Ms. Miller’s name.
[41] There was no evidence that the Will had been probated or otherwise proved, nor that a personal representative had been appointed. The consent of Ms. Miller’s heirs to the occupancy of the Unit by their sister was therefore of no effect. Moreover, there was no evidence foreclosing any other claims to the ownership of the Unit, such as by the Canada Revenue Agency for unpaid taxes, or by a dependant claimant, nor was there any evidence as to whether the Unit must be sold to pay any debts.
[42] Control over property changes with the death of its owner. As stipulated by s. 2(1) of the Estates Administration Act, R.S.O. 1990, c. E.22 (“EAA”), all real and personal property that is vested in the deceased devolves to and becomes vested in the deceased’s personal representative as trustee for the persons by law beneficially entitled to the deceased’s property. This vesting is subject to the payment of the deceased’s debts, including claims for dependant support, and other persons’ rights to take by survivorship, among other claims: EAA, ss. 2(1) and 4; Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 58(1). Importantly for the present case, it is the deceased’s personal representative that has the power to dispose of and otherwise deal with the real property vested in the personal representative: EAA, s. 16. Ms. Miller’s Will reflects these provisions: it requires her personal representative to pay all of her debts and empowers her personal representative to sell or retain all of her assets, which would include the Unit.
[43] Accordingly, the Board and the Divisional Court erred by treating the addition of the Estate as a mere procedural matter. There was no jurisdiction to make the substantive amendment to cure the substantive flaws of the June 2022 N12 notice and the eviction application. Section 183 of the RTA is expressly procedural; the requirement that the Board must adopt expeditious procedures does not allow the Board to correct substantive errors. Similarly, s. 187(2) of the RTA, allowing the Board to add or remove parties as the Board considers appropriate, does not permit the Board to correct a nullity nor to add a party whose standing is impossible to ascertain. Finally, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), by which the Board’s rules and practices are governed, does not permit the Board’s substantive amendment in this case.
[44] Until the legal representative of the Estate is appointed or the legal owner of the Unit is known, it is impossible to ascertain who the individual landlord is for the purpose of determining whether that individual has standing to invoke s. 48(1) of the RTA.
[45] It was therefore an error in these circumstances for the Board to allow the eviction application, terminate the tenancy and evict the appellant.
|
