Board's finding of subtenancy based on incorrect formulation of applicable statutory provisions

Real Property – Landlord and Tenant – Residential Tenancies

Parties both resided in building that consisted of eight rental units. Tenant rented two units in building. Subtenant rented unit from tenant. When tenant’s daughter returned to area, tenant sought to evict subtenant so that daughter and granddaughter could occupy unit. Tenant brought proceeding before Landlord and Tenant Board (Board) for finding that Residential Tenancies Act did not apply to subtenant’s occupation of unit. Tenant unilaterally locked subtenant out of unit without eviction order from Board. Board found subtenancy and ordered tenant to put subtenant back into possession of unit. Board ordered tenant to pay $4,394.29 for damages to subtenant for loss of goods, abatement of rent and general damages for pain and suffering. Request for reconsideration was dismissed by Vice-Chair. Tenant appealed. Appeal dismissed. Board's finding of subtenancy under s. 97 of Act was based on incorrect formulation of applicable statutory provisions. On reconsideration, Vice-Chair cited no authority for proposition that Board had discretion to ignore statutory preconditions to a finding of subtenancy. Vice-Chair's decision was not within range of reasonable outcomes. However, Act applied to relationship between tenant and subtenant as landlord and tenant. Tenant had no right to evict subtenant. Tenant’s conduct was particularly egregious as matter had previously been submitted to Board for resolution. Board's remedial order should stand.

Tremblay v. Ogunfeibo (2019), 2019 CarswellOnt 20899, 2019 ONSC 7423, Swinton J., Lococo J., and F.L. Myers J. (Ont. Div. Ct.).

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