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RTA - Unauthorized Occupancy. Shearer v. Oz
In Shearer v. Oz (Div Ct, 2026) the Divisional Court dismissed a joint RTA appeal-JR, these brought against "two decisions of the Landlord and Tenant Board" challenging "the Board’s termination of the tenancy for persistent late payment of rent and subletting the unit without the landlord’s consent", here a long-term 'rent strike' dispute.
The court considers an 'unauthorized occupant' situation, here emanating from a sublet without the landlord's consent:2. Did the Board err in finding the tenants transferred “occupancy” of the rental unit to unauthorized occupants?
[30] The landlord filed an A2 application in September 2023 for an eviction order because the tenants sublet the rental property to third parties without the landlord’s consent. Under s. 100 of the Act, if a tenant “transfers the occupancy” of a rental unit to a person without the landlord’s consent, the landlord may apply for termination of the tenancy.
[31] There was no dispute that unauthorized occupants were in the rental property without the landlord’s consent. A preliminary issue involved when the landlord first learned of this unauthorized occupancy. The Board found the landlord learned in June 2023 such that the A2 application was brought in time. The central question was whether the tenants “transferred the occupancy” of the rental property to these third parties.
[32] The tenants submitted that the Board’s abandonment of its function as a rapid adjudicator of disputes caused the tenants to have paying guests or roommates at the unit at below market rent. The tenants claimed they needed to mitigate their expenses in the face of ongoing Board delays in addressing abatement applications. The tenants similarly argued they knew the landlords would not consent to a sublet and that a proactive Board application for pre-authorization was impractical because of “tribunal inaccessibility”. The tenants claimed their arrangement also gave affordable accommodations to people otherwise experiencing housing instability. The tenants acknowledged they lived in Port Perry as homeowners since 2021 but claimed they intended to resume the tenancy after they succeeded through various Board applications in having the property brought to minimum standards. The tenants argued they did not transfer occupancy because one of the tenants regularly worked from an office he maintained at the rental property. He did not stay overnight at the property, eat meals with the other occupants or use the kitchen. The unauthorized occupants carried on all usual living activities in the unit.
[33] The Board found the unauthorized occupants lived in the unit whereas the tenants had “no residential connection at all” to the unit. The Board applied the “transfer of occupancy” test recognized by the Court of Appeal in Samuel Property Management Ltd. v. Nicholson, 2002 CanLII 45065 (ON CA). The Board noted the purpose of s. 100 is to protect a landlord’s expectation the tenant will retain a sufficient level of interest in the unit and the landlord’s right to approve of anyone who wishes to take over the tenancy. The Board concluded the tenants’ connection to the rental unit was no longer residential in nature; the unauthorized occupants now had residential use of the rental property. The tenants had “transferred the occupancy”, entitling the landlord to an eviction order.
[34] The tenants submit the Board erred in the determination of occupancy under s. 100 of the Act and the application of the test in Samuel Property. The tenants argue they were aware of Samuel Property at the time they made the plan to have paying guests. They intentionally maintained and regularly attended an office in the rental unit to distinguish these circumstances from Samuel Property, where the tenant was found to have transferred occupancy. The tenants also submit the Board failed to appreciate the significance of their ongoing “possession” of the unit notwithstanding that they had another residence, as was considered in 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (ON CA).
[35] This issue does not raise a question of law this court can review on appeal. The tenants either misunderstand Samuel Property or are trying to relitigate their substantive arguments recast as statutory interpretation. Where a tenant and others occupy a unit, the Board must focus on whether a transfer of the occupancy occurred. It is a question of fact and degree. The tenant’s use of the unit may be relevant, but is not decisive: Samuel Property, at paras. 19-25. Samuel Property remains the appellate authority for matters under s. 100 of the Act. Bakker is not relevant to these circumstances or s. 100 of the Act. That appeal considered whether the appellants were tenants in “possession” of the rental unit at the time of a rent arrears application under predecessor legislation.
[36] The Board’s conclusion that the tenants transferred occupancy to the unauthorized occupants within the meaning of s. 100 of the Act is a finding of mixed fact and law with no extricable question of law which this court may review on appeal.
[37] With respect to the tenants’ application for judicial review, the decision is reasonable. The decision is the result of an internally consistent and rational chain of analysis that is justified in relation to the facts and the law that constrain the Board. It is therefore also not appropriate for this court to intervene by judicial review. This ground of appeal and/or review fails. . Bujtor v. Donato Bratty Investment Ltd.
The Divisional Court considered these RTA s.104 'deemed assignment' provisions in Bujtor v. Donato Bratty Investment Ltd. (Div Ct, 2011) and refused to apply them in the absence of any evidence of a prior assignment or sub-tenancy (even were it unconsented to by the landlord). As such an overholding non-tenant cupant or sharer without even the pretence of assignment or subtenancy granted by the tenant does not appear to have the benefit of these provisions. Keep in mind that both assignment and sub-tenancy grant exclusive occupation of the premises to the new occupier against the tenant, so that a 'sharer' appears by definition to not be able to avail themselves of these these provisions.
. Porringa v. Everitt and Lundy
In Porringa v. Everitt and Lundy (Div Ct, 2021) the Divisional Court heard a valiant Charter attempt by an 'unauthorized occupant' to preserve his RTA appeal against the landlord's motion to quash it. The chief tenant had been already ordered terminated and evicted but the appellant 'unauthorized occupant' wanted to preserve his appeal, and the automatic stay on filing an appeal. His case fell on the easiest grounds available to the judge: inadequate evidence to substantiate his Charter grounds. However, but in doing so (IMHO) the judge overstated the law by stating: "His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord" [para 28]. Properly, section 104 of the RTA plainly countenances the existence of such unauthorized occupants and gives them 'rights' in some circumstances, essentially a right to become a 'full' tenant if the criteria of s.104(4) are met.
But the case is most compelling for pointing up the reality that older, disabled and otherwise commonly discriminated-again occupants, even if they do manage to obtain shelter in this harsh private market for at time, remain perpetually at risk of their 'security of person' in this country:[26] Lastly, Mr. Porringa argues that he occupied the finished lower level of the house living entirely separate and the Landlord was obligated to include Mr. Porringa in his eviction action along with Mr. Everick and he intentionally chose not to do so, which has certainly had major implications for Mr. Porringa’s occupancy. Furthermore, it is Mr. Porringa’s position that it should not have been permitted by the RTA for the Board to exclude him from Mr. Everick’s eviction proceedings because the latter had already decided to consent to the eviction.
[27] A “tenant” is defined in s. 2(1) of the RTA as:a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” 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 that owns the residential complex; (“locataire”). Mr. Porringa concedes in his Factum and in his evidence that he is not a “tenant” as defined by the RTA. It therefore remains that Mr. Porringa is an “unauthorized occupant” as stated in the Board Order. He adds that he is an elderly man with underlying health conditions and tight finances. Furthermore, he often remarks about the criminality of the Board member, Mr. Lundy, and his colleagues. In his Factum, for example, Mr. Porringa puts forward conspiracy theories that the audio recordings of the hearing have been edited or tampered with, that the Landlord and the Board unethically and illegally interfered with Mr. Porringa’s request for transcripts of the recorded telephone hearing and that there was a disruption of his mail service where one or more local postal employees agreed to assist in the illegal activity. Mr. Porringa states in his Factum that “the [Board] must be stripped of its misused powers in this particular case and a full public inquiry into this rogue government agency is needed by judicial order”. I find that Mr. Porringa has not provided any evidence to support his claims about discrimination due to his age, his health condition and the criminality of the Board and Mr. Lundy. In addition, he has not provided any evidence that the Board misused its powers and is a “rogue government agency”. I find that Mr. Porringa has failed to show that any of his Charter rights or rights in the Code have been breached by the Landlord and/or the Board.
[28] Based on my review of the evidence provided, there is no evidence to support a breach of Mr. Porringa’s rights. His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord. It was within the Board’s jurisdiction to make the Order of July 28, 2020. I find that Mr. Porringa’s appeal is devoid of merit and I quash his appeal pursuant to s. 134(3) of the Courts of Justice Act. Given this finding, I need not address the other issues raised by the Landlord. . Wu v. Adler
In Wu v. Adler (Div Ct, 2021) the Divisional Court considered a Small Claims damages case by the LL against a man and a woman. Although the man and woman represented themselves as a spousal couple and the man signed a year-long lease, he never moved in while the woman and her children did. During the running of the year of the lease the woman advised the LL that the man had moved out and that she subsequently bore responsibility for the tenancy. The LL did not move for an order "terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred" within "60 days after the landlord discovers the unauthorized occupancy" [RTA 100(1-2)]:Unauthorized occupancy
RTA 100 (1) If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred. In an effort to avoid liability for the damages and rent arrears the man argued that these facts constituted an 'assignment' under RTA 104(4):104(4) A person’s occupation of a rental unit shall be deemed to be an assignment of the rental unit with the consent of the landlord as of the date the unauthorized occupancy began if,
(a) a tenancy agreement is not entered into under subsection (1) or (2) within the period set out in subsection (3);
(b) the landlord does not apply to the Board under section 100 for an order evicting the person within 60 days of the landlord discovering the unauthorized occupancy; and
(c) neither the landlord nor the tenant applies to the Board under section 101 within 60 days after the end of the subtenancy for an order evicting the subtenant. The court reasoned that there was no 'unauthorized occupation' by the woman as the man was a tenant continually unless the woman left the premises vacant, and consequently during all that time she was an authorized occupant under the written lease. As such, the automatic assignment provisions of s.104(4) could not apply [para 34]. Ultimately both the man and woman were held liable for the arrears and damages.
Key to this finding was an earlier finding that the man, despite his misrepresentation in initiating the lease, was 'the' tenant throughout the occupation by the woman.
I've had a lot of trouble with the reasoning in this case, which was - as an appeal from a Small Claims Court matter - heard by only one Divisional Court judge [CJA 21(2)(b)]. It seems to me that it's reasoning reaches an overall just result but strains the law otherwise.
For instance, what if - upon learning of the deception - the LL moved under RTA 100(1) to evict. Section 100(1) seems tailor-made for such a situation as the obvious goal of the couple was to "transfer() the occupancy of a rental unit". Would the court have tolerated the woman's argument that she was an 'authorized occupant' in the face of the deception? This given that section 202(1) provides for a seemingly (also tailor-made) provision in the event of such bad faith dealings:202 (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit. The matter appealed from was in Small Claims Court, where the court has great deal of latitude in making orders despite inadequate pleadings (if that was the case, we don't know from the published reasons). Would not a straight fraud finding have reached the same proper result? As it is we are stuck with this odd 'a non-occupying tenant is legitimate' result, which tolerates the practice of sham tenants renting premises and then renting them out to other people in this cruel 2022 Ontario rental market. That said, this case does not seem to be of that commercial sham nature - rather it was an arrangement between friends, likely to assist her family in light of her having a weak credit record [para 4].
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