Ontario – Tenant Defence Information - If You are Locked out Illegally

Eviction: No eviction can take place in Ontario unless ordered by the Landlord and Tenant Board and done by the sheriff after a specified date. Always appear in court to fight an eviction, it may not be valid. Should there be any harassment or attempts to change tenant locks by Landlord you must

 

1. Tell the Landlord that such actions are illegal and ask that they be stopped or that the Landlord give you a new key and return any possessions immediately.

2. If an illegal lock change (eviction) or harassment takes place call the local police. (Note: If you can in any way get in your unit without doing damages do so. Use a locksmith, or enter without damages and call police. You still have tenant rights when illegally locked out and police will not arrest you for the act of re-entering your own unit.)

3. File a Tenant’s Rights application at the Landlord and Tenant Board and ask for an emergency court hearing to have your unit reopened and list financial damages. Ph: 416 645 8080 There is a special form to speed up the hearing. See ACTO tenant tips sheets for info on this.

If it takes place between 9 and 5 weekdays you can also call an agent of the Investigation and Enforcement Unit of the Ministry of Municipal Affairs and Housing which blocks illegal evictions and starts an action against the Landlord thru your verbal complaint. They will likely tell you to file a tenants rights application at the Board first. Ph: 416 585 7214

4. With a Tenants Rights Application filing you can press for damages and a fine for the Landlord, which is a maximum $100,000 dollars if a corporation illegally locks out a tenant and $25,000 if a non corporate Landlord locks out a tenant. At the court you can ask for an order to repossess the unit if the landlord doesn't voluntarily let you back in. See ACTO tenant tips sheets for info on this.

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If you are evicted for Owners Own Use or Personal Use in Ontario

ACTO CASE Files on Personal Use apps by Corporations

Eviction: No eviction can take place in Ontario unless ordered by the Landlord and Tenant Board and done by the sheriff after a specified date. Always appear in court to fight an eviction, it may not be valid.

If the building is owned by a corporation the landlord likely does not qualify for a Personal Use eviction. Ownership can be checked at the Land Registry at Yonge and Dundas Street Toronto. In the case of a corporate owner you should have the eviction order and affidavit checked by the duty counsel at the landlord and tenant board. Rulings have varied and quite often corporations lose these cases. Personal use claims must be in good faith and not an excuse to evict the tenant or to rent to someone else, so gather any evidence of bad faith. Write a defense outlining bad faith on the landlord's part, note if there are empty units that weren't offered and check if other tenants have been evicted for the same reason and whether any owner actually moved in.

If the property is purchased by an individual or family wanting it for personal use it must have no more than three units. If there are more you have a case to fight at the landlord and tenant board.

Only the landlord, a member of his immediate family or his care worker can claim owner's own use. A family member may be the landlord’s (or purchaser’s) spouse, or a child or parent of one of them.

If you have placed complaints against the landlord with inspectors or for repairs or other matters and they are evicting you the court may be convinced the eviction is in bad faith.

If you have been involved in tenant organizing or other actions the board may be convinced the eviction is in bad faith.

If there are empty units they may not be able to get an eviction for owner's own use.

If the owner doesn't move in the tenant has a year to file a complaint at the Ontario Landlord and Tenant board for compensation.

If a Real Estate Agent evicts you on behalf of a family that is moving in they can only claim three units and you must check who actually bought the property and verify in court that they actually are moving into your unit. Do not believe what any real estate person tells you, check the facts and test them in court.

Question of Ownership and whether the corporate landlord applying for personal use qualifies for it.

Information distributed by the tenant board mentions a number of past cases where the finding was that only a human landlord could personally occupy the premises. So the question is whether the person applying qualifies for such an eviction when the tenant house is corporate owned.

One sample case listed on the Landlord and Tenant Board’s own handout was D.E.S.K Properties Ltd v. Skene where landlord’s personal use was not granted because though the applicant was a sole shareholder it was ruled that it was the corporation he holds shares in that was the landlord and that a corporation and its shareholders are two separate entities.

Another case allowed a sole shareholder be classed an owner and evict for owner’s own use. The case was brought by Bedford Properties and Estates Ltd to Divisional Court at the end of 2012 citing the Slapsys case heard at Court of Appeal 2010. It allowed a sole share holder of 1406393 Ontario Inc. to take possession of a unit for his mother. ACTO appealed to the Court of Appeal regarding 1406393 Ontario Inc saying the section was intended for use by only a natural person, but the court ruled a sole shareholder could evict for landlord’s own use providing it was in good faith and according to the rules of the act. The court said, “Whether a sole shareholder can require possession of a rental property owned by a corporation for own use should be determined on a case-by-case basis. The consideration of the matter should include the nature of the shareholding and the discretion in s. 202 of the {Act}. Key in the Slapsys case wasn’t just that the person was sole shareholder but that he also permitted occupancy of the unit and had ultimate authority to permit occupancy. The Bedford properties case in citing the Slapsys case failed to note that the eviction in the Slapsys case wasn’t just allowed because the person was a sole shareholder, but because he also had ultimate authority over occupancy and ran the building.

Still other cases did grant owner’s-own-use because the person applying was considered the beneficial owner and a numbered company held title to the unit on behalf of that individual as trustee. In Melhuish and Walsh v. 580472 Ontario Ltd. and Strelchuk, a corporate landlord swore a statutory declaration stating that the corporation is solely a trustee and holds the title to the rental unit for and on behalf of the individual, the beneficial owner. Beneficial Owner as defined in Act,31 the Ontario High Court states: A “beneficial owner” is one who is the real owner of property even though it is in someone else’s name. The nominal owner has legal title to the property but the real owner can require the nominal owner to convey the property to him and transfer legal title to him. So this indicates that the real owner of the property granted an eviction in the 580472 Ontario Ltd. case was one person.

Another case would be the Bielak case initiated in 2002. Sylvia Bielak against tenant Anthony Clarke. This turned in a number of cases ending at Divisional Court years later. At the first hearing in 2002, the Landlord and Tenant Board found that a corporate landlord could not evict for own use as a corporation does not have family members, and the application was dismissed. At the next hearing a few months later the landlord filed as a person! This was accepted and an eviction application was granted.

The tenant appealed to Divisional Court, which found that the landlord was a corporation and therefore the second application should not have been allowed. The Board rejected the landlord’s third attempt to evict the tenant because the case had already been heard and the landlord should not be allowed to have it heard again. The landlord appealed to Divisional Court. The court dismissed the appeal and cautioned the landlord that continuing to file applications for eviction was verging on an abuse of process.

Key facts in the Bielak case were that the final argument for eviction was that Marsha Bielak claimed she was a fifty percent owner and entitled to evict for Personal Use for her daughter Sylvia, but Divisional Court ruled the Tribunal erred in finding Marsha Bielak and the numbered company were not the same parties for the purposes of the doctrine of res judiscata. The Tribunal also erred in failing to consider if Marsha Bielak was a privy of the numbered company. The member also failed to weigh the evidence regarding good faith. Sylvia Bielak also failed to gain an eviction because the only evidence of ownership presented was her self-designation in the application to terminate the tenancy.

Looking at Ontario law itself, it is clear that the personal-use section was designed for family owners of small landlord enterprises so their immediate family members could move in if need be. I don't think it was intended to allow corporations to evict. Landlords are now asking for the best of both worlds. They want to play two faces where they are individuals for eviction purposes and corporations for tax advantages.

The Ontario Landlord and Tenant Board’s information says where the rental unit or complex is owned by a corporation the board must examine the real substance of facts in each case to try to determine whether the sole shareholder of a corporate landlord can seek to rely on sections 48 and 49. The good faith of the participants must also be examined and the L2, N12 and affidavit must also be looked at in determining whether an eviction should be granted.

The impression I get from past court rulings is it must be a human owner or the sole shareholder or beneficial owner (one person who really owns the property) in good faith applying for the personal use eviction for himself or immediate family member. And if sole shareholder or beneficial owner that person must be the ultimate authority granting occupancy. In the Bielak case a person claiming to be a 50 percent owner lost as she tried to hide her connection to the corporation. If a corporation is involved there are many things for the court to consider. Just because a person is sole shareholder doesn't insure an eviction will be granted, and part owners will definitely not get an eviction if the case is handled right.

The section on Relief from Eviction notes that even if the landlord or purchaser requires the unit in good faith the eviction can still in some cases be refused or denied or postponed. It also says in some cases refusing the eviction is mandatory.

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