Kohen v. Warner: Court Upholds LTB Decision on Personal Use Eviction
Court rules intermittent use doesn't justify personal use eviction, upholding tenant's right to stay
Summarized by RentZenLast updated: August 16, 2024
Case Summary
882 Broadview Avenue, Toronto, ON
Decision in favor of
tenant
Balance Owed
-
Dispute Categories
Notices Sent
Agree with the ruling?
Timeline
Application Date
Nov 2016
Hearing Date
Jun 2018
Order Date
Jun 20, 2018
Dispute Summary
The Landlord appealed the Landlord and Tenant Board's decision to dismiss their application to evict the Tenant for personal use of the rental unit. The Landlord intended for his son, a university student, to occupy the unit on weekends and during summers for 5 years. The Board ruled that this occasional use did not constitute 'residential occupation' under s. 48(1) of the Residential Tenancies Act.
Determinations
- The Board Member did not misstate the law in MacDonald v. Richard
- The Member correctly stated and applied s. 48(1) of the Residential Tenancies Act
- The proposed intermittent use of the unit did not constitute 'residential occupation' under s. 48(1)
- The Member's interpretation and application of s. 48(1) was reasonable
Case Study
The court found that the Board Member did not err in law in interpreting s. 48(1) of the Residential Tenancies Act. The Member correctly applied the principles from relevant case law to conclude that the proposed intermittent use of the unit by the Landlord's son did not meet the requirements for terminating the tenancy under s. 48(1). The court viewed the issue as a question of mixed fact and law, and found the Member's interpretation and application of s. 48(1) to be reasonable given the remedial nature and purpose of the Act.
Arguments and Actions
Landlord
Arguments
The Landlord argued that the Member erred in law by considering himself bound by the MacDonald v. Richard case, which involved temporary occupancy, unlike the present case of indefinite part-time occupancy.
Actions
The Landlord applied to terminate the tenancy, intending to have his son Sedat Kohen occupy the unit on weekends during the school year and full-time during summers for 5 years.
Tenant
Actions
The Tenant did not appear at the hearing before the Board but did attend the Divisional Court hearing.
Decision Summary
The Divisional Court dismissed the Landlord's appeal of the Landlord and Tenant Board's decision. The court found that the Board Member's interpretation and application of s. 48(1) of the Residential Tenancies Act was reasonable. The proposed intermittent use of the rental unit by the Landlord's son for weekends and summers over 5 years did not constitute 'residential occupation' as required by the Act to terminate the tenancy.
Adjudicator Details
Divisional Court
Total Orders
6
Landlord Favorable
66.7%
Tenant Favorable
33.3%
Mutual Agreement
0.0%
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