) ) 2295477 ONTARIO INC. C/O REALSTAR MANAGEMENT PARTNERSHIP Respondent (Landlord) – v. –, 2017 ONSC 3048

CITATION : 2295477 Ontario Inc. v. Cromwell, 2017 ONSC 3048 DIVISIONAL COURT FILE NO.: 479/16 LTB Nos.: TNL-83814-16 and TNL-83814-16-RV DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, NORDHEIMER and CORBETT JJ. BETWEEN: ) ) 2295477 ONTARIO INC. C/O REALSTAR MANAGEMENT PARTNERSHIP Respondent (Landlord) – and – LIONEL CROMWELL Appellant (Tenant) – and – DAPHNEY LANGFORD Appellant (Occupant) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Martin P.

Zarnett , for the Respondent Emily Hill , for the Appellants ) HEARD at Toronto: May 16, 2017 NORDHEIMER J. (orally) [ 1 ] Lionel Cromwell, the tenant, and Daphney Langford, the occupant, appeal from an order of the Landlord and Tenant Board dated September 12, 2016 that terminated the tenancy agreement between the landlord and the tenant and ordered that the occupant vacate the premises by September 30, 2016. [ 2 ] The issue before the Board was whether the tenant, who is the brother of the occupant, had illegally transferred possession to his sister. The Board concluded that he had.

The appellants dispute that conclusion. [ 3 ] An appeal lies to the Divisional Court from an order of the Board restricted, though, to a question of law: Residential Tenancies Act, 2006 , S.O. 2006, c. 17, s. 210 (the “Act” ). [ 4 ] The Board conducted a hearing into the allegation, made by the landlord, that the tenant transferred the occupancy of the rental unit to the occupant in a manner that was not authorized by s. 100 of the Act . The occupant did not dispute that she did not enter into a tenancy agreement with the landlord.

The central issue was whether the tenant had transferred possession of the rental unit. [ 5 ] The crux of the Board’s conclusion on the issue was as follows: Although the Tenant and the Occupant submitted at the hearing that the Tenant remains in possession of the rental unit, and that the Occupant (the Tenant’s sister) is simply a long-term guest of the Tenant, I accept the Landlord’s representative’s submission that the

evidence adduced at the hearing shows that the Tenant vacated the rental unit, and that he transferred possession of the unit to theOccupant without the Landlord’s knowledge or consent. [6] It appears that the Board’s determination, that the tenant had transferred possession of the unit to the occupant, was based onthe facts that the tenant had listed on his tax return, and on his driver’s licence, an address in Etobicoke where his girlfriend lived. [7] The tenant explained that he spent some time at his girlfriend’s place and the reasons why he did so including the fact that hehad recently undergone major surgery and it was more convenient for him to recuperate there because, among other reasons, it was closeto his physical therapy appointments. [8] The question, under s. 100, is whether there has been a transfer of the occupancy of a rental unit.

On this point, Laskin J.A.said in Samuel Property Management Ltd. v. Nicholson, (2002), (ON CA), 61 O.R. (3d) 470 (C.A.) at para. 19: Where a tenant and others occupy a unit, the court must focus on whether a transfer of the occupancy occurred. The tenant's use of theunit may be relevant, but it is not decisive. [9] It does not appear that the Board focused on that question. According to the tenant, he went back and forth between theapartment and his girlfriend’s place as he had done for many months. Further, the landlord had been aware for many months that thetenant’s sister was occupying the premises.

Indeed, she had been listed as an occupant on documents supplied by the tenant to thelandlord. [10] The Board’s error seems to have come from the flawed assumption that a person can have only one residence. The law isclear that that is not the case: 1162994 Ontario Inc. v. Bakker, (C.A.). While it may be more difficult for a tenant toshow a sufficient connection to the rental property if the tenant has purchased a home for example, as was the case in Samuel, and wasalso the case in Hampstead Way Investments Ltd. v.

Lewis-Weare, [1985] 1 All E.R. 564 (H.L.), that was referred to in Samuel, that is notthe situation here. [11] In my view, the Board erred in its understanding and application of the legal test for a transfer of occupancy under s. 100. That renders the decision of the Board an unreasonable one. Applying the proper legal test, the evidence before the Board does notsatisfy the landlord’s burden to establish that a transfer occurred in this case. [12] Finally, the Board made an order for compensation.

The landlord fairly concedes that the order is in error since all rentalpayments had been made. [13] The appeal is allowed, the order of the Board is set aside and the landlord’s application is dismissed. Kiteley J.: [14] I have endorsed the Appellant’s Appeal Book as follows: “This appeal from the order of Landlord Tenant Board datedSeptember 12, 2016 is granted. Order dated September 12, 2016 is set aside. In the circumstance of this case, there will be no costs.” ___________________________ NORDHEIMER J. I agree ___________________________ KITELEY J. I agree ___________________________ D.L. CORBETT J.

Date of Reasons for Judgment: May 16, 2017 Date of Release: May 18, 2017 CITATION: 2295477 Ontario Inc. v. Cromwell, 2017 ONSC 3048 DIVISIONAL COURT FILE NO.: 479/16

LTB Nos.: TNL-83814-16 and TNL-83814-16-RV DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, NORDHEIMER and CORBETT JJ. BETWEEN: 2295477 ONTARIO INC. C/O REALSTAR MANAGEMENT PARTNERSHIP Respondent (Landlord) – and – LIONEL CROMWELL Appellant (Tenant) – and – DAPHNEY LANGFORD Appellant (Occupant) ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: May 16, 2017 Date of Release: May 18, 2017