The Ontario Court of Appeal's decision in Van Decker Estate v Van Decker, 2022 ONCA 712 serves as a reminder that not every type of eviction case is restricted to a hearing in the Landlord and Tenant Board ("LTB").
In that case, an estate trustee brought a motion for directions after one of the estate's beneficiaries and his spouse refused to vacate a property the deceased owned at the time of his death. The motions judge had granted the estate trustee's request for an order declaring that the property's occupants were not tenants of and had no interest in the property, that they vacate the property, and that they pay occupation rent arrears at fair market value to the estate. Although not framed in this way, the estate trustee essentially sought what is commonly referred to as an order for vacant possession of the house.
At first glance, it may seem as though the LTB should have determined the issues in this case, but the Superior Court of Justice has jurisdiction over certain situations that would otherwise seem to be restricted to the LTB. This is because the LTB derives its jurisdiction from the Residential Tenancies Act (the "Act"), which, at section 3, states that it "applies with respect to rental units in residential complexes", among other types of living arrangements. There are also several exemptions in section 5 of the Act.
There are therefore several situations where the Act does not apply and the Superior Court has jurisdiction to determine what would otherwise appear to be an LTB matter. In cases where there is no rental agreement, the Superior Court typically has jurisdiction to evict and order any occupants to pay occupation rent at fair market value. This situation often arises when an adult child who is living with their elderly parent refuses to move out of their parent's property after they pass away, such as in the Van Decker decision.
The Van Decker case also serves as a reminder that an estate trustee can seek occupation rent from individuals residing rent-free in the deceased's property. It is unclear from the appellate decision precisely how the motions judge determined that fair market value for the property was $2,500.00 per month, but an appraisal of the rental market for similar properties is likely a good starting point.
Given the months-long backlog being reported at the LTB, assessing the proper forum for your eviction proceeding could help you avoid unnecessary delays. At GSPC, we can help you determine where to bring your eviction matter and answer the question of whether you should evict or apply for vacant possession.
Note: while this blog and the information above provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. Please contact our office for a consultation with one of our lawyers if you would like to discuss your potential eviction or estate litigation matters.