What Factors Determine the Types of Accommodations For Which the Landlord Tenant Board Has the Authority to Hear and Rule Over As a Housing Dispute Case?

The Landlord Tenant Board, Generally, Is Empowered to Review and Decide Housing Dispute Cases Involving Genuinely Long-Term Residential Premises. Premises Used For Short-Term Rental, Such As Hotels and Motels or Bed and Breakfast Establishments As Well As Trailer Parks, Among Others, Are Exempted From the Residential Tenancies Act, 2006 and Thereby Excluded From the Jurisdiction of the Landlord Tenant Board.

Understanding the Tenancies Excluded From Residential Tenancies Act, 2006 Protection Including Short-Term Rental

Residential Lease Document The law prescribes various rights and duties upon landlords and tenants so as to provide protections as well as to provide obligations; however, which law applies is dependent upon the intended nature of the occupancy such as whether the tenancy is truly a genuine housing arrangement or whether the occupancy is intended as a temporary arrangement.

The Law

The Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, applies to the majority of housing arrangements where a landlord and tenant genuinely intend that the occupancy will be for long-term accommodation rather than for a termporary or transient nature.  The Residential Tenancies Act, 2006, applies to all forms of housing arrangements unless the housing arrangement is excluded.  Specifically, the Residential Tenancies Act, 2006, states:

Exemptions from Act

5  This Act does not apply with respect to,

(a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home;

(b) living accommodation whose occupancy is conditional upon the occupant continuing to be employed on a farm, whether or not the accommodation is located on that farm;

(c) living accommodation that is a member unit of a non-profit housing co-operative, except for Part V.1, and except for those provisions in other Parts that are needed to give effect to Part V.1;

(d) living accommodation occupied by a person for penal or correctional purposes;

(e) living accommodation that is subject to the Public Hospitals Act, the Private Hospitals Act, the Long-Term Care Homes Act, 2007, the Ministry of Correctional Services Act or the Child, Youth and Family Services Act, 2017;

(f) short-term living accommodation provided as emergency shelter;

(g) living accommodation provided by an educational institution to its students or staff where,

(i) the living accommodation is provided primarily to persons under the age of majority, or all major questions related to the living accommodation are decided after consultation with a council or association representing the residents, and

(ii) the living accommodation does not have its own self-contained bathroom and kitchen facilities or is not intended for year-round occupancy by full-time students or staff and members of their households;

(h) living accommodation located in a building or project used in whole or in part for non-residential purposes if the occupancy of the living accommodation is conditional upon the occupant continuing to be an employee of or perform services related to a business or enterprise carried out in the building or project;

(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, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

(j) premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation;

(k) living accommodation occupied by a person for the purpose of receiving rehabilitative or therapeutic services agreed upon by the person and the provider of the living accommodation, where,

(i) the parties have agreed that,

(A) the period of occupancy will be of a specified duration, or

(B) the occupancy will terminate when the objectives of the services have been met or will not be met, and

(ii) the living accommodation is intended to be provided for no more than a one-year period;

(l) living accommodation in a care home occupied by a person for the purpose of receiving short-term respite care;

(m) living accommodation in a residential complex in which the Crown in right of Ontario has an interest if,

(i) the living accommodation or residential complex was forfeited to the Crown in right of Ontario under any Ontario statute or the Criminal Code (Canada),

(ii) possession of the living accommodation or residential complex has been or may be taken in the name of the Crown in right of Ontario under the Escheats Act, 2015, or

(iii) the living accommodation or residential complex is forfeited corporate property to which the Forfeited Corporate Property Act, 2015 applies; and

(n) any other prescribed class of accommodation.

Interestingly, the usual nature of the premise, such as a hotel, motel, bed and breakfast, or other similar premise, fails to define whether an occupancy is a genuine housing arrangement that is subject to the Residential Tenancies Act, 2006, or for a temporary or transient nature whereas it is remains the nature of the occupancy, rather than the usual nature of the premises, that determines the issue.  Indeed, a hotel, motel, bed and breakfast, or other similar premise may, while providing primarily accommodations of a temporary or transient nature, also provide long-term accommodation as a housing arrangement.  This type of situation arose within the case of RG, SM and JA v. ALTST-64688-15-RV-IN-AM (Re), 2017 CanLII 9473 wherein the Landlord Tenant Board explained:

20.  It is a well-established principle of statutory interpretation that the meaning of legislation must focus on the words of the relevant statutory provisions, read in their entire context and in their grammatical and ordinary sense and interpreted harmoniously with the scheme and the object of the legislation and with drafters’ intention. The Supreme Court has repeatedly affirmed this approach to statutory interpretation, including in R. v. Gladue, 1999 CanLII 679 (SCC) and Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), as did the Court of Appeal for Ontario in Matthews v. Algoma Timberlakes Corp.

21.  It is clear, as outlined in section 1, that one of the intended main purposes of the Act is to protect tenants from unlawful rent increases and evictions. Moreover, to give effect to the stated legislative intent it is necessary to ascribe a broad definition to “rental unit”.

22.  In my view, the unit herein meets the definition of a “rental unit”. That is, the unit was “living accommodation” and intended for use as “rented residential premises”. The Tenants lived in the unit and the unit contained a sleeping and living area. No evidence was presented that the Tenants, during the time that they lived in the unit, engaged in activities other than what people ordinarily do in a residential unit.

23.  With respect to the unit being “rented residential premises”, I am satisfied, based on the evidence presented, that this requirement is also met. There is no suggestion that the unit was “commercial”. More importantly, the Tenants paid rent to the Landlord in order to be entitled to occupy the unit and, as such, the unit was “rented”.

24.  In the present case, and as the Member correctly found, the Tenants required the unit for a period of nine months while they attended university and, as such, cannot be deemed to be members of the “travelling or vacationing public.” The Landlord therefore necessarily relies upon the latter clause of the exemption that lists a number of included living situations that are “occupied for a seasonal or temporary period.

25.  In my view, the facts presented do not support a finding that the exclusion contained in section 5(a) regarding “seasonal or temporary” occupation within a “hotel” or “vacation home” occupation applies. First, the parties agreed that the occupation would last for at least three seasons and over a period of nine months and, as such, it is, respectfully, unreasonable to deem such a term “temporary” as contemplated by the Act.

26.  Second, in accordance with a purposive interpretation of the legislation as enunciated in Matthews v. Algoma Timberlakes Corp., the type of occupation at issue here is not one which the Legislature intended should be excluded by section 5(a) of the Act. As the Court of Appeal stated in Matthews v. Algoma Timberlakes Corp., it is immaterial “whether the occupants spend their days at work or at leisure, whether they live in their accommodation 52 weeks a year or some lesser amount of time, and whether the unit in question is their primary or secondary residence.” To find otherwise would, as the Court observed, exempt a variety of Ontario tenants who would otherwise be protected by the legislation, such as individuals who reside in warmer locations during the winter or rent premises in areas that offer skiing or golf.[7] I would add that this is so notwithstanding that the Landlord may have been operating a bed and breakfast in the complex for many years and other units in the residential complex may have been used in a different manner compared to the Tenants’ unit, as this is not determinative of whether the exemption applies to their unit. It is the use made of the particular rental unit, which must be considered and not the overall use of the building or complex or even the past history of the unit.

27.  I agree with Tenants’ counsel that to give effect to the scheme and the object of the legislation and in keeping with the intent of the Legislature, section 5(a) must be interpreted narrowly so as not to carve out too large a segment and bring housing, which the Act was intended to protect, within its ambit. This position is supported by Grenadier (Tenants of) v. We-Care Retirement Homes of Canada, [1993] O.J. No.1550 (Div. Court.) where the Divisional Court for Ontario stated, in part, as follows:

3. With great respect, and recognizing that the matter is by no means beyond doubt, I have concluded that, given the remedial nature of this legislation, the language of the whole clause, the burden on one who seeks to invoke an exemption, the opportunities for abuse opened up by a lesser standard and the use of the words “the purpose” (emphasis added) in the section, it was the legislature’s intent to exempt accommodation only where the enumerated purpose is the primary reason why the occupant is occupying that particular accommodation.

28.  Further, in Matthews v. Algoma Timberlakes Corp., the Court agreed with the Divisional Court for Ontario in Putnam v. Grand River Conservation Authority, 2006 CanLII 18526 (ON SCDC) and found as follows:

Second, even if it could be found that occupation was for a seasonal or a temporary period, the category of premises at issue in this case is quite different from the living accommodations specifically excluded by s. 5(a) of the Act. Regarding the applicability of what was s. 3(a) of the then Tenant Protection Act, 1997, the Divisional Court in Putnam v. Grand River Conservation Authority, 2006 CanLII 18526 (ON SCDC), [2006] O.J. No. 2217, 210 O.A.C. 191 (Div. Ct.), at para. 25, cited with approval the reasoning of the Ontario Rental Housing Tribunal regarding rented "cottage" lots:

The listing of places where this seasonal or temporary accommodation is to take place clearly is a listing of places, owned by private persons or businesses, which appeal to the general public as vacation spots or places to stay when one is away from home. They represent accommodation for travellers, for vacationers, for anyone who needs temporary accommodation provided by someone other than themselves.

The Tribunal accepts that the phrase "in a . . . cottage or cabin establishment" in Section 3(a) should be interpreted to mean that the grouping of cottages or cabins (the establishment) available as seasonal or temporary accommodation is analogous to the rooms in a hotel or a motel, or the rooms in a "bed and breakfast" or in an inn, or the sites at a campground or in a trailer park, available as living accommodation to be occupied for a seasonal or temporary period. To interpret otherwise would be to "hive off" this particular phrase from the listing in Section 3(a) and give it a completely different interpretation from the other words and phrases in the listing. Similarly, the accommodation in this case was not akin to the hotel, resort, campground or vacation home temporary lodgings that the legislature intended to exclude from the application of the Act.[8]

29.  Tenants’ counsel further submitted that an appropriate interpretation of subsection 5(a), as it generally applies, would involve the phrase “seasonal or temporary period” being assisted by “travelling or vacationing public” and “vacation home” being analogous to a hotel, motel and the other accommodation examples listed and such interpretation would bring the analysis within the narrow scope of the exemption sought to be achieved by the Legislature and leave out the vast majority of occupations, which the Act aims to protect. In my view, the noscitur a sociis rule, which permits the determination of the meaning of a term through its relation to other terms, is not applicable here. In R. v. Daoust, [2004] 1 SCR 217, 2004 SCC 6 (CanLII), the Supreme Court of Canada stated, in part, as follows:

61. In the present case, the words “conceal” and “convert” are not part of a list. On the contrary, they are two distinct terms with distinct meanings.  This is demonstrated by Parliament’s use of the expression “with intent to conceal or convert”, as the use of the word “or” shows an intent to distinguish the two terms from each other.  For this reason, these two terms should not be read together, and the noscitur a sociis rule does not apply. [Emphasis added]

30.  So, while I agree that, in keeping with Matthews v. Algoma Timberlakes Corp., in adopting the reasoning in Putnam, “vacation home” must be interpreted as analogous to the other establishments listed, as the categories of premises specifically excluded by section 5(a) must not be “hived off” from one another, “travelling or vacationing public” and “occupied for a seasonal or temporary period” are two distinct phrases denoting separate elements of the exception.

31.  What is required is a purposive and plain reading of subsection 5(a) of the Act and such sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis) and (3) be situated in a hotel, motel, bed and breakfast or other listed establishment.

32.  The evidence presented shows that it was the intention of the parties, from the outset, that the unit would be the Tenants’ primary residence during the school year. No evidence was presented that unit was used for anything but residential occupation. The Landlord’s method of advertising the complex online, her choice of words to describe the complex and some of the units therein, the use of a “Booking Agreement” instead of a tenancy agreement, the sporadic laundry services provided by the Landlord and the Tenants’ decision to move out of the unit before the end of the tern does not, applying section 202 of the Act, render the unit excluded from the legislation. To find otherwise would leave the door open to the opportunity for abuse, as referred to in Grenadier, where an occupation, comparable to any rental accommodation contemplated by the Act, would be rendered excluded by the Landlord simply taking a few superficial steps, pre or post occupation, to change the character of a tenancy to exempt it from the Act.

33.  In the present case, the evidence indicates that the Tenants’ use of the rental unit remained consistent from August 21, 2014 to December 23, 2014 as rented residential premises and that the parties’ intention was, at the outset, that such use would continue until May 21, 2015. The evidence did not indicate that the Landlord provided daily housekeeping services and, as I stated above, the Landlord only laundered bedding once every four to six weeks and the Tenants laundered their own clothing as well as towels, linens and bath mats, which were provided by the Landlord. Indeed, the Booking Agreement states that, “The guests agree to keep the suite in a reasonable state of cleanliness and assist with the removal of snow.” As also stated above, the evidence at the hearing was that the Landlord did not provide breakfast to the Tenants. I also note that the “Booking Agreement”, and amendment thereto, make no reference to sales tax added to the various charges collected from the Tenants and the Landlord’s website advertising makes no mention of a seasonal rate. All of these factors strongly point to, and lead me to find, on a balance of probabilities, that the occupancy herein was a tenancy rather than a seasonal or temporary accommodation in a hotel or vacation home.

34.  This is consistent with Curtis Property Management v. Rezai (unreported, March 28, 1989, Ont. Dist. Ct.), where Justice Conant found that a rented hotel room fell within the realm of “rented residential premises” based on a number of factors, including: whether the occupant had demonstrated an intention to reside there on a "somewhat permanent basis" (i.e., having moved in what most people might consider fixtures, such as stereo equipment, rugs, pictures lamps, etc.); whether typical hotel services (e.g. room service and cleaning) were included; and, the degree of control the occupant had over the suite or, conversely, whether the owner was free to enter the unit at will. In his reasons, Conant, J. wrote that, “If the premises are residential, then the landlord's calling the building a ‘hotel’ was an invalid attempt to evade the provisions of the [then] Landlord and Tenant Act.”.

In the recent case of Moin v. Chhibber, 2021 CanLII 64804, which involved a landlord attempting to apply the Residential Tenancies Act, 2006 in the effort to evict a corporate tenant from a residential type premise where the corporation was using the premises for AirBNB operations, the Landlord Tenant Board determined that the Residential Tenancies Act, 2006, failed to apply; and accordingly, the Landlord Tenant Board dismissed the proceeding for a lack of jurisdiction thereby confirming that the matter would require court adjudication rather than adjudication by the Landlord Tenant Board.  Specifically, the Landlord Tenant Board said:

1.  The Residential Tenancies Act, 2006 (the 'Act') does not apply.

2.  When the tenancy initially started on August 1, 2018 for one-year term, the tenancy was between the Landlord and Executive Stay Inc. (ESI), the corporate Tenant, only. When the tenancy was renewed, the form of the lease changed. The written agreement was on an Ontario Residential Standard Lease Form and the tenancy was between the Landlord, ESI (the corporate Tenant), and AC (who was the principle of the corporation).

3.  The Ontario Residential Standard Lease Form is not in itself determinative of a residential tenancy.

4.  Section 202 of the Act requires the Board to ascertain the real substance of a transaction. Section 202 states,

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. 2006, c. 17, s. 202.

5.  In this case, from the onset of the tenancy, the “tenants” were not in fact occupying the rental unit themselves, nor had they intentions of ever occupying the rental unit because, with the knowledge of the Landlord, they have always used the space for the purpose of operating a business that allowed temporary/short-term occupancy of the unit by members of the travelling or vacationing public.

6.  For the sole reason the renewed tenancy agreement includes the principle, AC is also not determinative of residential use and does not allow the Landlord the ability to exercise their rights and obligations under the Act if the nature of the tenancy is commercial. This was supported by other factors of their relationship. There’s no dispute the Landlord communicated with employees of ESI about all issues related to the tenancy; rent was paid by ESI; and the leases were negotiated between the Landlord and staff of ESI. The Landlord in two years only spoke to the Tenant once never having met or seen him before, except by phone on once occasion. I find, the tenancy was for all intended purposes for commercial occupation.

7.  The Act also does not apply pursuant to section 5(a) of Act, 2006 (the 'Act') which states:

The Act does not apply with respect to, living accommodations intended to be provided to the travelling or vacationing public or occupied for a season or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home”.

Another common situation that arises involves the argument that a camping trailer permanently parked within a trailer park and used for residency is governed by the Residential Tenancies Act, 2006; however, the Landlord Tenant Board has routinely determined that where the use of the trailer is seasonally temporary, the Residential Tenancies Act, 2006, and therefore the jurisdiction of the Landlord Tenant Board, fails to apply.  In the case of L.D.S. v. B.M., SWT-68358-14 (Re), 2015 CanLII 24245, the Landlord Tenant Board stated:

34. The Applicant took the position at the present hearing that the relationship between the parties should be construed as a Landlord-Tenant relationship as it is physically possible for the Applicant to reside in the unit through the year, but for the Respondent’s policy prohibiting year round use.  While the Applicant’s Legal Representative characterized the residence as a permanent structure, I do not find that the evidence presented at the hearing supports this view.  The Applicant referred to the trailer as a “park model” and did not provide evidence of any additions to the trailer itself that rendered the structure as permanent, beyond the removal of the trailer’s immediate capacity to be moved.

35. However, whether or not the Applicant added or altered the trailer to become semi-permanent in nature is not material to whether the unit is a seasonal residence.  The intent of the parties was that the park may not be used as a year round permanent residence.  Simply because it is theoretically possible to violate this contract does not in any way invalidate it.  In other words, although I find it would be possible for the Applicant to stow away in his trailer and survive the winter all the while evading park security, I do not find that such a breach of his contract would change the relationship between the parties or thereby confer on him protection under the Act.

36. The contract signed by the parties explicitly states the temporary and seasonal nature of the residential complex, specifically that:

The Camper shall not use the Campsite as a principal, permanent, year-round or full-time residence, and shall close and vacate the unit on the Campsite for a minimum of sixty (60) consecutive days annually between October 31 and the following April 30 (the ‘Minimum Vacancy Period”).  The Park will be CLOSED annually from January 1 through to March 1 [emphasis in original].

37. In light of all of the evidence before me, I find that the residential complex is intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period, and as a result, exempted from the Act, pursuant to subsection 5(a) of the Act.  The Act therefore does not apply.

Summary Comment

The Residential Tenancies Act, 2006, applies to most premises that are genuinely occupied for long-term housing purposes; and accordingly, premises such as hotels, motels, bed and breakfast, vacation resorts, trailer parks, among others, are excluded from the statutory provisions prescribed by the Residential Tenancies Act, 2006 and thereby excluded from the jurisdiction of the Landlord Tenant Board.

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