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Residential tenancy agreements must always include a landlord and a tenant. Sometimes, however, people, other than tenants, also live in a rental unit, such as the tenant's spouse, children, other occupants or roommates. In addition to the ordinary landlord and tenant relationship, the Residential Tenancies Act, 2006 (RTA) has specific provisions relating to such matters as sublets, assignments, and unauthorized occupancy of rented residential premises.
Subsection 2 (1) of the the "RTA" contains the following definition of “landlord”:
"landlord" includes,
Where the RTA states that a landlord "includes" certain persons indicates that the definition in the RTA is not intended to be exhaustive.
In Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676, para 7, the Court of Appeal found that definition of “landlord” is not restricted to the owner of a rental unit and there may be more than one “landlord”. The Court stated that whether a person who is not the owner of the rental unit is “a person who permits occupancy of a rental unit” will depend upon the facts, including whether the person has the ultimate authority to permit occupancy. See also: Tremblay v. Ogunfeibo, 2019 ONSC 7423, TNT-11527-18 (Re), 2019 CanLII 71028 (ON LTB),
Therefore, depending on the specific facts, the registered owner of a residential complex and the property manager with authority to rent units and responsibility for the day-to-day operations may both be landlords as defined by the RTA. Any person or corporation meeting the definition of “landlord” is entitled to exercise the rights given to landlords under the RTA, including the right to give a tenant a notice of termination and file an application with the Landlord and Tenant Board (LTB). An application filed with the LTB can name one or all of the landlords of the rental unit.
In accordance with section 43(1) of the RTA, a notice of termination can be signed by either the person giving the notice or their agent. In Rivera v. Eleveld, 2022 ONSC 446, the Divisional Court confirmed that an agent signing a notice of termination on behalf of a landlord does not need to be licensed to provide legal services.
However, in accordance with section 185 of the RTA, an application to the LTB must be signed by the party filing the application or a person licensed by the Law Society of Ontario (LSO) to provide legal services.
Where the Landlord is a corporation, an employee or any other person with authority to bind the corporation may sign a notice of termination or file an application to the LTB on behalf of the corporate landlord.
A person not licensed by the LSO to provide legal services who is seeking to represent a landlord at an LTB hearing on the basis that they are a property manager may not be permitted to appear if they are engaged in the business of providing legal services to multiple third parties and do not fall within one of the specific licensing exemptions established by the LSO. See: The Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391, TEL-06503-19 (Re), 2020 CanLII 61284 (ON LTB). In the event of a conflict between the RTA and the LSO rules respecting who may represent a party, the relevant section of the RTA must be applied (RTA section 3(4)). See also: Practice Direction on Representation before the Landlord and Tenant Board.
By virtue of the Mortgages Act, a mortgagee in possession of a mortgaged residential complex is deemed to be a landlord under a tenancy agreement. For example, the mortgagee in possession collects the rent, maintains the rental unit, and acts as the landlord for all purposes.
Subsection 2 (1) of the RTA defines a "tenant" as:
"tenant" includes 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,
As is the case with the definition of "landlord" in the RTA, the definition of "tenant" is not intended to be exhaustive. In Jemiola v. Firchuk, [2005] O.J. No. 6085, the Divisional Court stated that the definition of "tenant" is broad and inclusive and should be broadly and liberally construed. The Court noted, however, that a child who was an occupant of the rental unit in which their mother was the tenant, who wanted to remain in the rental unit after their mother's death and who made a single payment of rent after their mother's death was not a tenant. See also: Jeffrey v. Masek, [2006] O.J. No. 5883.
In Warraich v. Choudhry, 2018 ONSC 1267, the Divisional Court found that when the LTB is determining whether someone is a “co-owner” of the residential complex, and hence excluded from the definition of “tenant’, the LTB should only have regard to whether that person has a legal ownership interest in the property. The LTB does not have the authority to determine whether someone has an equitable interest in the rental unit.
While the definition of "tenant" includes the tenant's heirs, assigns and personal representatives, section 91 of the RTA provides that if a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy is deemed to be terminated 30 days after the death of the tenant. See for example: TSL-06652-19 (Re), 2019 CanLII 134622 (ON LTB).
Where two or more persons are tenants of a rental unit, it is important to consider the nature of their relationship with the landlord to determine if the tenants are joint tenants, tenants in common, or, as in the case of a rooming house, they have separate and distinct tenancy agreements with the landlord and live separately from one another.
In a joint tenancy, there is a single tenancy agreement and the tenants are jointly and severally (individually) liable for the payment of the entire rent for the rental unit.
In the case of a tenancy in common, while all the tenants are occupying the same premises, each tenant in common has a separate tenancy agreement with the landlord even if all the tenants have signed one tenancy agreement. Each tenant in common is individually responsible for the payment of their share of the rent for the rental unit.
In the case of a rooming house, each tenant has a separate tenancy agreement with the landlord and each tenant lives separately. The tenants may all have access to certain common facilities such as washrooms, living rooms and kitchens.
The determination of the nature of any particular tenancy, whether a joint tenancy, a tenancy in common, or a rooming house, will depend upon the LTB's finding of fact in each case, which includes the LTB's determination of the real substance of the transactions and activities relating to the rental unit.
See Osgoode Properties v Northmore, 2018 CanLII 153456 (ON LTB) for a reviews of the various types of tenancies.
Not everyone named as a tenant in a tenancy agreement may meet the definition of "tenant" for the purposes of the RTA. As discussed below, people other than a tenant may live in the rental unit with the tenant's consent. Section 202 of the RTA requires the LTB, in making findings on an application, to ascertain the real substance of all transactions and activities relating to a residential complex or to a rental unit. In Parsons v. Twin Elm Estates, [2001] O.J. No. 1907, the Divisional Court stated that what is now section 202 of the RTA requires the LTB to find the true facts about the relationship between a landlord and a tenant, regardless of the form in which that relationship may be set out. For example, where a person guarantees the payment of rent by the tenant, and is named as a tenant in the agreement, the guarantor does not become a tenant within the meaning of the RTA if the guarantor has no right to occupy the rental unit.
The written or oral tenancy agreement will usually specify who is considered a tenant. If the tenancy agreement is not clear with respect to identifying a tenant, the LTB will determine who is a tenant by looking at a number of factors such as, who entered into the agreement with the landlord, who is entitled to occupy the rental unit under the tenancy agreement, who pays the rent, and who deals with tenancy related issues with the landlord.
Subsection 2 (1) of the RTA defines a "spouse" as a person:
A spouse of a tenant might not be considered a tenant depending on the facts. For example, if only one of two spouses is listed on the tenancy agreement as a tenant, the spouse who is not listed may not be a tenant for the purposes of the RTA.
Subsection 3 (1) of Ontario Regulation 516/06 made under the RTA states that if a tenant of a rental unit dies and leaves a surviving spouse who is only an occupant and not a tenant of the rental unit, on the death of the tenant, the surviving spouse is then included in the definition of a "tenant" unless the surviving spouse vacates the rental unit within thirty days after the tenant's death.
Similarly, subsections 3 (2) and (3) of Ontario Regulation 516/06 states that where a tenant of a rental unit vacates the rental unit without giving a notice of termination and without entering into an agreement to terminate the tenancy, and their spouse remains who occupies the rental unit as their principal residence, the spouse is then included in the definition of "tenant", except where any one or more of the following criteria exists:
The extended definition of "tenant" with respect to a spouse of a tenant does not apply to social housing, care homes and certain types of government housing.
There is no definition of "occupant" in the RTA.
For the purposes of proceedings at the LTB, an "occupant" may be considered to be a person who is not a tenant but who lives in a rental unit as their principal place of residence. An occupant may be authorized or unauthorized depending on the facts of each case.
Similarly, there is no definition of "roommate" in the RTA.
A "roommate" is a person who, like an occupant, shares a room, a rental unit, or part of it with a tenant, but is not a tenant.
In the ordinary circumstance, a person may reside as an occupant or a roommate in a rental unit with or without the consent of the landlord provided that the tenant also resides in the rental unit.
In some cases, a written tenancy agreement may provide who is an occupant of the rental unit. However, even where the written tenancy agreement does not specify who is an occupant, or, where there is no written tenancy agreement, a person may be an occupant of a rental unit provided that person has the consent of the tenant to live in the rental unit and the person's occupancy of the rental unit does not result in overcrowding within the meaning of section 67 of the RTA2.
An occupant or roommate lives in the rental unit at the invitation and at the indulgence of the tenant and under the terms of the tenancy. An occupant or roommate cannot file an application at the LTB relating to the tenancy against either the landlord or the tenant.
Since an occupant or a roommate is not a tenant, that person has no contractual relationship with the landlord, regardless of whether the occupant or roommate pays a fee to the tenant or subtenant to reside in the rental unit. Where the occupant pays a portion of the rent for the unit directly to the landlord, and defaults in payment of their share of the rent, the tenant remains liable to the landlord for payment of the entirety of the rent.
Where an occupant pays part of the rent directly to the tenant, the occupant does not become a tenant. Where the occupant pays part of the rent directly to the landlord, the payment of rent does not automatically result in the occupant becoming a tenant. A determination as to whether that occupant is a tenant will depend upon the facts in each case at the LTB.
As noted, a finding that a person is an occupant means that the occupant has no protection or rights in proceedings at the LTB under the RTA. Any rights that the person may have outside the RTA must be sought in a court.
With the exception of an occupant who is a spouse of a tenant and to whom the extended definition of tenant set out above under the definition of "spouse" applies, an occupant cannot remain in a rental unit after the tenancy ends. If the tenant vacates the rental unit or the tenancy is terminated by the LTB, the occupant or roommate must vacate the rental unit along with the tenant.
If the occupant or roommate does not vacate the rental unit when the tenant vacates that unit (either voluntarily, or, when the tenancy is terminated by order), the occupant becomes an unauthorized occupant and the landlord may apply to the LTB under section 100 of the RTA for an order terminating the tenancy and evicting the person who remained in the unit after the tenant vacated.
If the landlord does not apply to the LTB for an order terminating the tenancy and evicting the unauthorized occupant within 60 days after discovering the unauthorized occupancy, the occupant becomes a tenant.
See for example: Kenron Residents Association v Nelson, 2021 CanLII 81744 (ON LTB), TSL-82093-17 (Re), 2017 CanLII 28595 (ON LTB).
Subsection 2 (1) of the RTA defines a subtenant as:
the person to whom a tenant gives a right under section 97 to occupy a rental unit.
For a subtenancy to exist under the RTA, the tenant (the "head tenant") must:
See: Tremblay v. Ogunfeibo, 2019 ONSC 7423
While the term "head tenant" is occasionally used, it does not appear in the RTA. A "head tenant" is a landlord in terms of their relationship with an authorized subtenant. A tenant does not become a landlord, within the meaning of that term in the RTA, to their roommate or occupant.
If a tenant does not vacate the rental unit but allows another person to live in the rental unit with them, a sublet is not created within the meaning of the RTA. In such a case there is no landlord and tenant relationship between the tenant and that person or between that person and the landlord. In that case, no consent of the landlord is required and the other person is a roommate of the tenant and/or an occupant of the tenant's rental unit.
A tenant can allow people to occupy the rental unit with the tenant but the tenant cannot subdivide the rental unit into more than one rental unit. For example, if a tenant rents an entire home, the tenant may permit a person to live in and have exclusive use of the basement of that home, however, the home, including the basement, remains the rental unit. That person would be a roommate of the tenant or an occupant of the rental unit and the roommate/occupant has no protection under the RTA.
If a tenant vacates the rental unit and gives possession of the entire rental unit to another person, but does not obtain the consent of the landlord pursuant to section 97 of the RTA, there is no authorized sublet pursuant to the RTA. The landlord may apply to the LTB under section 100 of the RTA for an order terminating the tenancy and evicting the person who remained in the rental unit after the tenant vacated, who is referred to as an “unauthorized occupant”.
In addition, there is a requirement that the right to occupy given to the potential subtenant must be for a period of time that is less than the term of the head tenant's lease. This indicates that there must be a tenancy agreement between the landlord and the head tenant for a specific term. Therefore, in the ordinary case, there cannot be a sublet of a month to month tenancy. It is, however, theoretically possible to create a subtenancy for one month less one day in the case of a month to month tenancy.
Subsection 97(2) of the RTA provides that a landlord shall not arbitrarily or unreasonably withhold consent to the sublet of a rental unit to a potential subtenant.
The RTA does not define the terms "unreasonable" or "arbitrary". In deciding whether the landlord unreasonably withheld consent, the LTB may consider the surrounding circumstances, the commercial realities, and the economic impact of the subletting on the landlord within the context of a reasonable person standard. See: Colisanti v. Katz (1996), 1 R.P.R. (3d) 200 (Ont. Gen. Div.), TST-05478-19-RV (Re), 2019 CanLII 134631 (ON LTB).
Subsection 98(1) of the RTA provides that if a landlord does arbitrarily or unreasonably withhold consent to the sublet to a potential subtenant, the tenant or former tenant may apply to the LTB for an order determining that the landlord has arbitrarily or unreasonably withheld consent to the sublet, to a potential subtenant. If the LTB finds that the landlord has arbitrarily or unreasonably withheld consent to the sublet to a potential subtenant, the LTB may, pursuant to subsection 98 (3) of the RTA:
Pursuant to subsection 98 (4) of the RTA, the LTB may establish terms and conditions with respect to the sublet.
A person who takes possession of the entire rental unit from a tenant without the consent of the landlord is subject to eviction pursuant to subsection 100(1) of the RTA.
A person does not become a subtenant with rights under the RTA unless the requirements of a sublet as set out in the RTA are met. Therefore, if the tenant does not obtain the consent of the Landlord, even if all of the other conditions are met, that other person is not a subtenant under the RTA. See: TST-02765 (Re), 2009 CanLII 74509 (ON LTB).
In Dupont and Pecoski v. Weir and Weir, (an unreported decision of the Divisional Court - October 13, 2010), a case where a deceased tenant had purported to transfer his leasehold interest in a residential rental unit to his daughter, the Court stated that, irrespective of the provisions of the RTA (relating to a deceased tenant) where no assignment or sublet of the premises had been consented to in writing by the landlord, the lease was at an end.
If the tenant sublets the rental unit in accordance with the RTA, the subtenant has certain rights.
Subsection 97(4) of the RTA provides that, if a tenant has sublet a rental unit to another person:
A landlord and a subtenant are not liable to each other for breaches of the tenancy agreement or of the RTA. A subtenant must turn to the tenant with respect to breaches of the RTA; the tenant may, in turn, enforce obligations against the landlord and conversely, the landlord can enforce obligations against the tenant.
Section 99 of the RTA provides that certain provisions apply, with necessary modifications, with respect to a tenant who has sublet a rental unit, as if the tenant were the landlord and the subtenant were the tenant, including:
In addition, paragraph 2 of section 99 of the RTA permits a tenant to apply against a subtenant under section 69 for an order on the grounds listed above. The tenant may also apply under section 87 for payment of arrears of rent, section 89 for damage to the rental unit and section 148 regarding care homes.
Subsection 135 (1) of the RTA provides that a tenant or former tenant of a rental unit may apply to the LTB for an order that the landlord, superintendent or agent of the landlord pay to the tenant any money collected or retained in contravention of the RTA. Subsection 135 (3) of the RTA provides that a subtenant may apply to the LTB for an order under subsection 135 (1) as if the subtenant were the tenant and the tenant were the landlord. Apart from section 135, there is no explicit authority in the RTA for a subtenant to apply against a head tenant.
A person claiming to be a subtenant but who is not an authorized subtenant cannot file an application at the LTB against the tenant or landlord. Any rights that the person may have outside the RTA must be pursued in a court.
There is no definition of "assignee" in the RTA.
An assignee, in the residential tenancy context, is a person to whom a tenant's interest in a residential tenancy has been transferred by a tenant.
Section 95 of the RTA applies to assignments of a rental unit by a tenant to another person.
In the case of an assignment of a rental unit, the tenant must seek the consent of the landlord to the assignment.
The request to assign may be either general or specific. If the request is general, subsection 95(2) of the RTA applies and, if the request is specific (that is, to a specifically named assignee), subsection 95(3) of the RTA applies.
Before seeking the landlord's consent to an assignment to a specifically named assignee, a tenant is entitled to obtain confirmation from the landlord as to whether the landlord is, in principle, prepared to consent to an assignment.
A landlord has a right to refuse to consent to an assignment of a rental unit in the case of both a general or a specific assignment. Where a landlord completely refuses to consent to an assignment, or does not respond to the tenant within seven days after the tenant has made a request for the landlord's consent to an assignment, the tenant may give the landlord a notice of termination within thirty days after the date the tenant requested consent to an assignment. The date for termination specified in the notice must be at least 30 days after the date of the notice, unless there is a lesser notice period for termination of a tenancy otherwise required under the RTA.
Where a landlord has consented to an assignment in principle, the tenant must still obtain the landlord's further consent to an assignment to a specific assignee. In that case, the landlord may determine if the potential assignee is an appropriate tenant. The landlord may refuse to consent to a specific assignment. For example, a landlord was found to have reasonably withheld consent to the tenant's proposed assignees where the landlord maintained and followed a waiting list for prospective tenants for the buildings it owned. (Burns v. Belmont Construction Co., [1987] O.J. No. 1732 (Ont. Dist. Ct.).
Subsection 98 (1) of the RTA provides that if a landlord does arbitrarily or unreasonably withhold consent to the assignment to a potential assignee, the tenant or former tenant may apply to the LTB for an order determining that the landlord has arbitrarily or unreasonably withheld consent to the assignment to a potential assignee. If the LTB finds that the landlord has arbitrarily or unreasonably withheld consent to the assignment to a potential assignee, the LTB may, pursuant to subsection 98(3) of the RTA:
Pursuant to subsection 98 (4) of the RTA, the LTB may establish terms and conditions with respect to the assignment.
Upon the landlord's consent to the assignment, the assignee takes on the obligations of the tenant and the benefits of the landlord's obligations. The assignee is not liable to the landlord for any breaches of the RTA or of a tenancy agreement that occurred prior to the date of the assignment. The tenancy continues on the same terms as was the case with the original tenant.
The assignor (the former tenant) is liable to the landlord for any breach of the tenant's obligations under the tenancy agreement or the RTA if it relates to the period before the date of the assignment. The former tenant may also enforce against the landlord any of the landlord's obligations under the tenancy agreement or the RTA if the landlord's obligation relates to the period before the date of the assignment. In the event that the assignee (current tenant) breaches any obligation to the landlord after the date of the assignment, the former tenant has no liability to either the landlord or to the current tenant in proceedings at the LTB.
Pursuant to clause 95(8)(c) of the RTA, where the original tenant has commenced a proceeding under the RTA before the effective date of the assignment of the tenancy, and the benefits or obligations of the new tenant (the assignee) may be affected in the proceeding started by the original tenant, the new tenant has the option of joining in that application or continuing with the proceeding.
In considering whether a landlord has arbitrarily or unreasonably withheld consent to an assignment or sublet of a rental unit, the LTB will have regard to whether, in withholding consent to the proposed assignment or sublet, a landlord has acted in a manner that contravenes the landlord's obligation to comply with the requirements of the Human Rights Code. See also: Interpretation Guideline 17 - Human Rights.
1 Section 100 of the RTA permits a landlord to apply to the LTB for an order terminating the tenancy of a tenant and evicting the person to whom the tenant transferred occupancy of the rental unit if the tenant transferred occupancy other than by way of an authorized sublet or assignment.
2 Pursuant to section 67 of the RTA, a landlord may give a tenant notice of termination of the tenancy if the number of persons occupying the rental unit on a continuing basis results in a contravention of health, safety or housing standards required by law.