Thursday, 27 March 2014

Terminating the Employment of a Superintendent and Eviction

The fact is that a great many apartment buildings have someone in the building who acts as a superintendent of the building.  The "super" is the person that other tenants go to with complaints, to get things fixed, to serve notices, to make noise complaints, to pay rent, and for anything else such as lockouts, extra keys etc..  The "super" is normally in a position to help tenants with whatever issue has come up but if not, it is the Super who raises the issue with the proper people to get the issue addressed.  Many superintendents provide basic property management services to the landlord which often includes maintenance and repair services for things like dripping taps, door issues, appliance problems, heating and cooling, and other things that fall into the general category of "handy man services".

After considering all of the things that the Superintendent does, for all of the tenants in the building, it becomes quite clear that having a good superintendent can go a long way to having a positive relationship with the landlord.  Unfortunately, the converse is also true and a bad superintendent can be a big problem for tenants and hence be a big problem for landlords.

How can a superintendent be bad?  Imagine a superintendent who fails to clean the building, fails to respond to complaints, loses rent cheques, puts all the elevators on service at the same time, doesn't deal with noise complaints or other anti-social behaviour (or worse contributes to anti-social behaviour), and is generally un-responsive to tenant issues and fails to actively manage the building.  Bad superintendents who are allowed to continue to manage buildings will often cause good tenants to give up in frustration and they hand in their notice of termination and move.  The building, in time will get a reputation, and as the good old tenants move out--less desirable new tenants will be allowed to move in---which causes more good tenants to move out.  The fact is that poor management and a bad superintendent can ruin a building for tenants who want a nice place to live and further, it can cause the building owner to suffer great financial losses in the investment in the building.  From this perspective, having a bad superintendent is not in the interests of the tenants or the building owner.

So what is the recourse for tenants and landlords when a "superintendent" is bad and fails to do their job properly?  In relation to tenants, the answer is to treat the actions of the superintendent as the actions of the landlord.  Hence, if the superintendent is the person to whom the tenants are directed to communicate, and that superintendent fails to do what is required, then the remedy includes applications to the Landlord and Tenant Board and any agencies that may have jurisdiction (i.e. Property Standards).  Interestingly, with respect to behaviours that that are contrary to the Residential Tenancies Act, tenants may indeed have recourse against the superintendent personally (more on that in another article at a later date).

The main point today is what can the landlord do if the superintendent is a bad superintendent.  The answer is not simple and more is involved than what one might first suppose.  As a superintendent is an employee, landlord's will have to ensure that they deal with the employee in accordance with employment standards legislation (and associated laws like WSIB).  Further, the employee's rights must be respected and it would be a mistake to disregard the employee's working conditions and applicable human rights codes (OHRC).  Employment relationships can be complicated, especially when the employee has been working for the employer for a longer period of time.  Accordingly, getting legal advice with respect to employment law matters is always helpful when dealing with problematic employees.  This article does not pretend to deal with employment law issues and I refer anyone with those questions to a good employment law lawyer.

The question then is what does the Residential Tenancies Act provide with respect to superintendents?  What little there is in the RTA, respecting superintendents, is set out in section 93 and 94 of the RTA.  Both of these sections deal with evicting a superintendent from a building after they have been terminated from their employment.

Section 93 of the RTA provides as follows: (1) If a landlord has entered into a tenancy agreement with respect to a superintendent's premises, unless otherwise agreed, the tenancy terminates on the day on which the employment of the tenant is terminated.  (2)  A tenant shall vacate a superintendent's premises within one week after his or her tenancy is terminated. (3) A landlord shall not charge a tenant rent or compensation or receive rent or compensation from a tenant with respec tot he one-week period mentioned in subsection (2).

Section 94 of the RTA provides:  The landlord may apply to the Board for an order terminating the tenancy of a tenant of superintendent's premises and evicting the tenant if the tenant does not vacate the rental unit within one week of the termination of his or her employment.

An of course, as you are reading these sections you are perhaps wondering--what is a superintendent's premises?  Fortunately, that is defined in section 2 of the RTA which provides:  "Superintendent's premises" means a rental unit used by a person employed as a janitor, manager, security guard, or superintendent and located in the residential complex with respect to which the person is so employed.


DISCUSSION

The general import of the provisions of the RTA (s. 93 & 94) is that superintendents, once fired from their job, have a week to vacate their apartment for which they do not have to pay rent for that week.  If the terminated superintendent does not move out, the landlord may apply to the landlord and tenant board for an eviction order.  In fact, the Landlord must apply to the Board to evict the superintendent if the superintendent does not move out.  Self-help evictions (i.e. changing the locks etc.) are not available against former superintendents.

On the surface, the RTA rules seem simple enough--once fired, a superintendent needs to get out quickly.  The fact is that it isn't quite this simple.  The termination of employment of a superintendent is often fraught with stress and unseemly allegations.  Often, where the landlord is wanting possession quickly it is because the superintendent was fired for misconduct or some other problem that precluded a long notice period where the superintendent worked out the notice and was given time to make alternate arrangements.  In the circumstances where a quick termination is sought, the fired superintendent often finds that the landlord is not paying any severance or notice and has taken a "for cause" position on termination.  Often enough, this comes as a bit of a surprise to the ex-superintendent.

The superintendent, freshly fired, is angry.  That superintendent wants to make employment law related claims against the landlord and wishes to do this in response to the landlord's demands for vacant possession in one week.  In these circumstances, freshly terminated superintendents will seek to assert a wrongful termination, want damages, possible reinstatement for human rights code violations and they will want to raise this before the landlord and tenant board.  Will the Board hear these arguments?  For the most part, the answer is "no" (see Onucki v. Fudge [1990] O.J. No 2175 (Ont. Div. Crt)).

The Landlord and Tenant Board, looking at how the provisions of section 93 and 94 are structured, considers its jurisdiction and scope of inquiry limited to whether the employment was terminated, and whether the formerly employed is in a superintendent's unit.  Beyond that, the Board does not adjudicate employment issues as it has no jurisdiction or authority to determine whether a termination is proper, whether proper notice was given under the Employment Standards Act or at common law, nor whether any other employment (contract) related issues were breached etc..  The Board can not engage at that level given that it's jurisdiction as set out in the RTA does not authorise it to adjudicate those disputes.

The result of this is that former superintendents get very frustrated at Board hearings as they try to explain how the landlord's actions are unfair etc..   The Board's consistent response is that they refuse to hear those issues.  Consequently, most hearings involving former superintendents don't last very long as the proof of terminated employment is easily established and an eviction Order follows.

IS THERE NOTHING THAT A FORMER SUPERINTENDENT CAN DO?

Aside from legal action in the employment context (which this article does not address), the Superintendent does have some recourse at the Landlord and Tenant Board.  It is not a rubber stamping eviction process and a former superintendent who focuses on those issues that the Board does have control over can indeed have some success at the Board.

Depending on one's perspective, I presume that the "one week" to vacate will strike many people as being a very short period of time.  Imagine being handed a pink slip on a Monday and being told to be packed and moved by the following Monday.  Who among us could really move that quickly?

With respect to this time period, the former superintendent may indeed ask the Board to delay the eviction beyond the 7 day period to a time that is more reasonable.  The authority to extend the time is under section 83 of the RTA--which is the general discretion section.  Will "discretion" be exercised?  That question is a factual question which will depend on the particular circumstances of each case.  Significant factors will include whether the former superintendent occupies a special supers unit that is needed for a new super (i.e. is it on the ground floor?), the extent of the superintendent's duties and how important those duties are to the operation of the building.  The more important it is for the operation of the building that that landlord regain possession of the unit the less likely it is that discretion will be exercised in favour of the former superintendent for any extended period of time.

As indicated above, the Board's inquiry into employment related issues is limited by the wording of section 93 and a lack of jurisdiction to adjudicate employment type issues.  However, does this mean that there is nothing in the employment relationship that matters to a determination by the Board?  In fact the answer is that some employment issues may indeed be relevant to the Board's determination.  An example is the case of Maystar [2000] O.R.H.T.D. No.127 (O.R.H.T), wherein eviction was refused because the Board viewed the landlord's reason for terminating the employment and hence seeking eviction as arising from the superintendents attempt to enforce his legal rights (albeit under legislation that was separate from the Tenant Protection Act (now the Residential Tenancies Act).   How does this logic flow?  The answer is in section 83(3)(c) where the Board is mandated to refuse eviction if the application is brought for the reason that the tenant has attempted to secure or enforce his or her legal rights.

I'm not confident in the reasoning of the Maystar decision, but nevertheless, it is interesting as the focus of the defence to the application speaks to the Board's jurisdiction.  With a sympathetic story, (and in Maystar there certainly was sympathy for the super) and the right focus on the Board's jurisdiction a former super may indeed have success in delaying eviction or even denying it.

Another interesting defence to former superintendent eviction matters is an inquiry into the timeline of a person becoming a superintendent in a building.  Often enough, a person becomes a superintendent after already having lived in the building as a tenant.  Where the status of the person changes from tenant to superintendent (and the rental unit does not change), it is arguable (and winnable) that the termination of employment results in the former superintendent becoming a "regular" tenant in the building again and hence no eviction.

SUMMARY

I do believe that in most instances, the termination of a superintendent will result in an eviction within a short period of time.  No notice of termination is required and the tenancy of the Superintendent terminates by operation of law.  The RTA presumes the eviction of former superintendents in short order and there is nothing in the case law that lends to a statutory interpretation favouring protection of these tenancies.  That being said, there are exceptions to every general rule in landlord and tenant law and the rules related to superintendents are no different.  When it comes to evicting superintendents it is worthwhile to try and negotiate a reasonable termination date (beyond the 7 days if possible), but at the same time to back up that negotiated date with an Order from the Board--perhaps obtained on consent.

Michael K. E. Thiele
Ottawa Lawyer

35 comments:

  1. Hi Michael, very good blog, I wonder if you could take a landlord & tenant case in toronto?

    Thanks!

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    1. Hello: Please feel free to contact me at mthiele@pqtlaw.com to discuss further. Michael K. E. Thiele

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  2. Great blog thanks for the information, very helpful in knowing tenant rights. Thanks Michael!

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  3. Hi Michael, very good information. I'm wondering what the laws are regarding a superintendent who wishes to terminate the employment. Do the same regulations apply re: 7 days notice? I'm especially interested in a case where no employment paperwork has been signed nor has any official tenancy agreement been signed.

    Thanks!

    CA

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    1. Hi and thanks for this question. After so many years I think I've heard every question from every angle but then questions like yours pop up and there is something new to think about. A quick search on www.canlii.com for case law on point didn't yield anything helpful so it may take a little more time to find out if this question has been decided before. My gut reaction to the question is to look at section 93 of the RTA. I'll confess that my memory of the section presumed that it spoke from the perspective of a superintendent's employment being terminated by the employer. Reading it again, but for having your question in my mind, I still read it as referring to a situation where the employer does the terminating of the tenancy. I think this turns on how the word "terminated" is used:

      s. 93 If a landlord has entered into a tenancy agreement with respect to a superintendent’s premises, unless otherwise agreed, the tenancy terminates on the day on which the employment of the tenant is terminated.

      When I read this section I don't think of it applying to a circumstance where the superintendent quits or resigns. However, as I think about it I suspect that this is exactly the way that the Board would interpret the section--meaning the Board will say that section 93 also covers a circumstance where the superintendent quits their job. If the section is not interpreted in this way it may result in a superintendent occupying a supers apartment with no way for the Landlord to regain possession of that unit. A building could be made to suffer without a superintendent in the supers unit, there may be no other vacancies, the prejudice to the landlord could be quite significant. In such circumstances I think you can read section 93 and 94 as applying to circumstances where a super quits their job.

      Now, whether you have other defences--whether there is or isn't a supers job--whether the tenancy pre-exists the employment as a superintendent, these are other issues and other grounds to defend an application to evict.

      Michael K. E. Thiele

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    2. Thanks a lot for the information, Michael. I completely agree. I think it's entirely possible that the word "terminated" can be used from either angle. It's definitely not a word often used when I person resigns from an employment position ("Honey, I couldn't take it anymore. I terminated my employment today"). Nevertheless, as you say, it could be interpreted that way and technically makes sense in both situations.

      Thanks again!

      CA

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  4. Hello Michael, I first want to commend you for the huge help you do the public by making this blog available and answering these questions, it looks like a lot of effort and I'm sure you've helped a lot of people.

    My question is of a very sensitive nature, from the perspective of a landlord, rather than a renter. I have had a hard time finding much information to help us on this matter, as most of the info available has been geared towards tenants. My parents own a house in Ontario, and they have agreed to rent it to my sister. They only ever had a verbal agreement with regards to the rental, as it was within the family and they didn't feel they needed more than that. Since renting it to my sister, her boyfriend moved in, who is now her common-law husband.

    Recently, the relationship has become both physically and emotionally abusive, and my sister has asked him to move out, but he has refused. She is afraid to push the matter, because when she does he gets angry and aggressive towards her. My parents feel certain that they are within their rights to evict him, but they don't want to evict her. We're looking into ways to get rid of him, but they have to get him out as quickly as possible, with as little notice as possible, because once he knows he is being evicted he may become violent. So we know we can evict him, we just need to handle it as delicately as possible. We can give her a place to stay while this matter is solved, but the longer he has free reign of the house the more my parents worry about him damaging the property out of revenge.

    Obviously I wouldn't expect you to comment on personal and family matters, I just need to know what are our options for legal eviction. We have a few matters in our favour. For one, a couple of months ago he sent an email to my parents ranting about a number of things, in which he declared his intention to move out, but he didn't give a set date for that. He since has changed his mind and refused to go. Can we use this email as evidence of an agreement to vacate the premises that has been violated, in order to expedite the eviction? In my research, I found references to an "ex parte eviction" which could hopefully get him out in 10 days on these grounds, but I'm not too clear on how it would work. Could we still call for an ex parte eviction in the absence of a written lease and without a set move-out date agreed upon? For another thing, he has done significant damage to the property, when he gets angry he tends to break things around the house, and I've found references to an expedited eviction on the grounds of potential property damage- how long would this take, and what kind of evidence could we use to prove it? We also have cell phone recordings of him storming around and throwing things, as evidence of how unbalanced he is. He doesn't know these recordings exist, and didn't consent to them being made. Could they be legally admissible in Ontario as proof that he is potentially violent and a danger to the other tenant (my sister) and speed up the eviction that way? The other thing is that I don't believe my parents ever agreed to rent to him, per se -- they rent to my sister, and she, not the landlords, invited him to move in. I don't know if that helps at all.

    The sooner we can get him out of the house and change the locks, the better for her safety. She can move out temporarily for her safety as we work through the eviction, but we are quite literally afraid that he will take a crowbar to the walls if he doesn't get his way. I was hoping you might be able to provide a bit of information as we wait to hear back from a tenancy lawyer. It might be a matter that we should bypass tenancy law for and go directly to family law - but we want to know our options so we can make a plan to get him out as quickly and as safely as possible.

    Thanks so much,
    Anon.

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    1. Hi and thanks for the comment. This is a very difficult topic to deal with thoroughly in an answer on a blog. It is the type of problem that truly is best addressed in a face to face meeting with a lawyer where there can be questions and answers and an exchange of information that allows a customized plan of action. That being said, here you are asking me to comment. I don't mind commenting but I do strongly encourage you to seek legal advice from a lawyer who will be in a much better position to devise a plan that will work.

      In reviewing your comment I am not sure that I accept the premise that your sister's relationship with your parents is indeed a landlord and tenant relationship covered by the Residential Tenancies Act. As your comment indicates, the relationship is imbued with family considerations. There are enough cases before the Board where it has been held that in some circumstances where a child is "renting" from parents that it is not a tenancy covered by the Resdiential Tenancies Act. If this is your situation (or at least the nature of the relationship between your sister and your parents) the answer may simply be to change the locks and exclude him from the home. Proceeding in this way, I'd have a chat in advance with the local police, explain what you intend to do, and ask them to be present. If boyfriend loses control they can arrest him. At the same time, in the presence of the police officers serve him with a Notice of Trespass under the Trespass to Property Act. He can be arrested for trespassing if the police find him on the property again.

      If, by chance, this tenancy is covered by the Residential Tenancies Act, then the only way to deal with it under the Act is to terminate the entire tenancy. Of course, nothing stops your parents from re-renting to your sister. Nothing in what you've said indicates to me that boyfriend is a tenant (rather he is at most a roommate). Unfortunately, the damage to the premsies that you fear, and the desire to get an ex parte order to prevent it, is simply not possible under the Residential Tenancies Act. All tenancies under the RTA can only be terminated with Notice of Termination. The shortest notice period is 10 days and then there is still the need to file an application to the Board, get a hearing, get an eviction order, and have the Sheriff enforce it on even more notice. It seems to me that the Landlord and Tenant Board route is not a practical solution for your parents.

      The next alternative, and like the best one, is for your sister to obtain a restraining order against boyfriend. You would need a family law lawyer or perhaps a criminal lawyer (s. 810 Criminal Code) to get a restraining order. The restraining order should be able to include a term that he not return to the property in breach of which he can be arrested. I do believe, though you will need to check with your family law lawyer that the restraining order could be obtained on an exparte basis. Given the evidence you have--especially the recordings--I suspect a Judge would grant such a restraining order. I think that this might be the better solution as property damage is the lesser concern when compared to your sister's safety. Having a restraining order, I think, protects the person (your sister) and the property.

      Hope that assists you in dealing with these difficult circumstances. Good luck.

      Michael K. E. Thiele

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    2. Hi Michael, thanks so much for your reply. We will be talking to a lawyer to confirm what you have said to our situation, but this was very encouraging and helpful. Thanks so much.

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  5. Hi there, I have a question regarding whether an eviction can take place if there is no designated caretaker suite and the landlord let the caretaker move into a random suite of their choosing.

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    1. Hi: The definition of a "superintendent's premises" in the Residential Tenancies Act (section 2) is as follows: “superintendent’s premises” means a rental unit used by a person employed as a janitor, manager, security guard or superintendent and located in the residential complex with respect to which the person is so employed; (“logement de concierge”.

      The RTA does allow a person to be evicted from a unit so described upon termination of employment. Take a look at the wording in section 93 of the Act and you will see that the tenant living in a such a unit may be evicted (unless there is a deal to the contrary) upon the termination of employment.

      Michael K. E. Thiele

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  6. would like to ask in case of selling the building,is that a problem that the owner will let his super to stay in the super apartment and pay rent as a tenant, and the new super of the building that the new owners will hire, will get a different vacant unit?does the new owner can sue the old owner if a lease agreement was issued for the super before the sale was complete?

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  7. Hello there.
    Thank you very much for all the info. Very interesting. I just went over the Employment Standard Act Ontario. I could not believe that Superintendents have no protection at all.
    I use to work for condominium complex in Mississauga Ontario that was manage by one of the biggest management company in Ontario. The manager was the biggest a……… that I ever known.
    I was threatened by him every day that Employment Standard Act does no protecting Superintendents and he can make me work 24 hours a day 7 days a week.
    He installed a camera outside of my apartment door and monitor me and my quests 24 hours a day.
    He even have an internet connection to this camera in his house. Constantly questioning me about my visitors. ETC ETC. I complained to Board of Directors and the property management company. Nothing was done about it. It got to the point that I had to change my job.
    I got a job in the building in DT Toronto that was managed by the same property management but different manager. It was great. Great residents, great board of directors, great management.
    They offered me set hours with free weekends. Every time I had to work longer I was paid overtime. That was approved and documented by Board of Directors. My paycheque showed my regular hours and overtime hours.
    Last March the board changed and the Property Management changed. For some time everything was the same. My paycheque shown my hours (80 by weekly) but no overtime. When I ask for my overtime pay they ask me for a prove that I was paid overtime and they ask me for my pay stops from previous management company. I did provide them with all that info. Still no overtime pay and on my paycheque instant my working hours it shows “salaries “. Is there anything I can do about it?
    Second question.
    I may have to go for surgery on my spine. It is not work related. My doctor told me that the recovery time may take up to 3 months. I’m wondering how that will affect my employment and my accommodation. I’m living in superintendent.
    I would really appreciate for some information.
    Thank you.

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    1. Hi:

      The fact scenario you describe raises a significant number of employment law issues. The Employment Standards Act 2000 is certainly relevant. I would also think that your employment contract as well as common law would be relevant and perhaps even the Ontario Human Rights Code. This mix of law, with your facts, is something that calls for a lawyer with experience in Employment Law to advise you on. From what you describe my gut reaction is that you are not being treated properly and you likely have remedies. What exactly those are, and how you most easily get them, is something that I don't know and is something that you are well advised to contact an Employment Lawyer about.

      My legal knowledge rests significantly in the world of Residential Tenancies Law. In that context I can tell you that the Residential Tenancies Act gives you virtually no security and certainly no job security. The applicable sections of the RTA to superintendents is section 93 and 94 of the RTA. Certainly look up the sections, but in summary, section 93 states that your tenancy is terminated upon termination of your job; that you have one week to vacate the premises and that the landlord can't charge you rent for that one week. Section 94 allows the landlord to bring an application to the Board for an eviction order if you don't vacate after one week. That being said, there are some arguments that can be made and the Board retains a residual power to extend the termination date to a different and more reasonable date taking into account all of the circumstances. However, the Board will generally not listen to arguments about the circumstances of termination nor will it adjudicate employment related issues.

      For your employment rights you should consult an employment law lawyer or perhaps attend a local legal clinic to get advice about your employment law rights. I think if you are fired because of your impending surgery you may also have a Human Rights Code claim so getting advice from a lawyer (or local legal clinic) with experience in Human Rights law is also advisable. If your employer should terminate your employment and demands that you vacate the rental unit then you would benefit from some landlord and tenant law legal advice---there are some (though limited) ways to fight superintendent eviction cases. I have always been able to extend the move out date from the 7 days allowed under the RTA to a more reasonable timeframe.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  8. Hi micheal k.
    My problem is me and my husband was under the impression of taking over the job of the super position,if something was to happen to my grandfather again. First time he went under foot surgery and had my husband take care of the building for three months and the landlord knew and told my grandfather rge super that he would be considered for the job. We left florida and stayed with my grandpa for not only that reason but he needed our help. Now we left the house we was renting to buy and my husband left his job with sanitation department in florida,to find out two yrs later which is now,that he is giving my grandpa a studio up stairs and want us to leave the apartment,i asked my grandfather to speak to the landlord but he won't let me. I don't understand why im becoming homeless with two children and one has open heart surgery. Thats why i don't work. I have to be available 24/7 ,pls what can we do? Is it legal to speak with the landlord?

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    1. Hi Serina:

      I've read what you've written a couple of times and think that there must be a whole lot to this story that isn't in what you've written. I have to presume of course that you left Florida to come to Ontario to live with your grandfather? I only comment on matters that are in Ontario because the laws of other provinces and states can be totally different than Ontario.

      In any event, I understand your situation to be a "contract" question. Did you and your husband enter into a contract with the landlord or not. Contracts don't have to be written, but certainly it is better if they are as that makes the terms clear and everyone knows where they stand.

      If you are "not" the superintendents right now, but are living in the apartment building in a unit now and have been for what sounds like a great many months, is it possible that you have become tenants in the building? Have you paid rent to the landlord? Just because your grandfather is going to move into a different unit does not mean that you are not tenants. It will be important to analyze your status in the building. If you are tenants then at least you have the right to stay in the building so long as the rent is paid etc.. If you are deemed to be just guests of your grandfather (you stayed in same unit as him I think from your comment) or perhaps deemed to be occupants but not tenants then your rights under the Residential Tenancies Act are far more limited and you will not have the right to stay after your grandfather, the tenant, moves out.

      With respect to getting the Supers Job. I don't have enough information here to comment very much. If you, or your husband, has a contract with the landlord and that contract is breached then you have the right to damages. However, what you describe sounds to me not like a contract but just a promising discussion. Note that from a housing perspective, even if the landlord did hire you as the Super, the landlord could fire you as the Super as well and then you would have very little right to continue to live in the building unless you were tenants before you became Supers.

      So, to your last question. There is absolutely no reason why you can't politely speak with the landlord to explore your options.

      Good luck
      MIchael K. E. Thiele
      www.ottawalawyers.com

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  9. Hi Michael, in Ontario, can a superintendent be unionized, if so what happens to his apartment incase of a strike.

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    1. Hi: This is an interesting question in a big picture sense. I know absolutely nothing about labour law--especially in the union context. I have a hard time seeing how supers would unionize as the employers would be different. How do you enter into a collective agreement on behalf of supers who work for a very large number of different landlords? It strikes me as impractical. Whether labour law provisions could over-ride the statutory provisions in the RTA is, I think, doubtful. Hence, I think the RTA would still have to be respected. However, the terms of the employment relationship that is outside of the scope of the RTA could deal with the terms of employment and all of the issues that are not specifically dealt with in the RTA.

      Michael K. E. Thiele

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  10. Hello Michael
    I am the chairman of the board of directors of a church camp. It had been operating as a year round camp and conference centre but due to financial constraints we had to change our focus away from year-round operation and unfortunately terminate the employment of all our employees including the Executive Director (ED). We offered the ED a fair severance package including the option for him and his family to stay in the ED residence up to a certain date as noted in the letter of termination (over 120 days from the date of termination and over 60 days if you consider 2 weeks notice, vacation time and extra severance). The board intentionally set the "stay until date" with best of intentions to afford him and his family ample time to find other accommodations, but also to ensure the residence would be vacated in enough time for us to prepare it for our use for summer camp . The "stay-until-date" was 7 days ago.
    Can we consider the ED to be a "superintendent" under the law and take immediate action to have him evicted from the residence? Or would it be better to apply to the LTB for an ex parte order indicating that by accepting the severance the ED agreed to vacate the residence on or before the published date?
    Summer Camp begins in a few weeks and unfortunately we now need to take action that will make the residence available to us ASAP.

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    1. Hi: An interesting question. I'm going to presume that you are satisfied that the RTA applies to the circumstances you discuss and that indeed you are correct. If the RTA applies then I think it is fair to say that the ED is not a tenant as defined in section 2 of the RTA. Hence the normal RTA notice provisions would not apply to the ED. However, where there RTA does apply to the circumstances of the residential complex and the landlord provided staff with housing as a part of their duties respecting the residential complex in which they lived, then the RTA can be recognized as applying to the living accommodations of that staff. That type of rental unit is often referred to as "superintendent's premises". Is your ED a "superintendent" as contemplated under the RTA? The definition of superintendent premises is as follows (s. 2): "superintendent premises means a rental unit used by a person employed as a janitor, manager, security guard or superintendent and located in the residential complex with respect to which the person is so employed". The ED seems to fit into the "manager" role. The eviction authority for superintendents premises is in section 93 and 94 of the RTA. It is a direct application to the Board to get an eviction Order. Note that you need to proceed very quickly with an application as there are institutional delays and enforcement delays that will stretch this matter out for several weeks if the ED chooses to fight you over this.

      A possible alternate procedure would be to file an application to the Superior Court of Justice for a Writ of Possession. Depending on where you are in the province, you should be able to get an urgent hearing date that should result in an Order being made quite quickly. This process will require a lawyer (you really can not do it on your own), and it will be significantly more expensive than going to the Landlord and Tenant Board. However, it may result in you getting possession of the premises much quicker than going through the LTB processes (I think, on the very limited facts that you have provided, that it is arguable that the RTA does not apply).

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  11. Hi Michael,
    I've enjoyed reading your answers and comments. Been learning some things.
    I started working as Assistant Superintendent June 2008 to Nov. 2013 at which time I was promoted to Superintendent. My son, 29 yrs old now, was hired as Assistant Superintendent at the same time Nov. 2013 and chose to continue living with me instead of having his own apt. He has been living with me since birth. He is planning to quit this job and we wanted to know if he quits, does that mean we have to move or can he continue living with me. I am not planning to quit at this time. Can you please give some advise on this issue?
    CMOB

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    Replies
    1. Hi: If your took possession of your unit as an assistant superintendent and then as a superintendent then the Residential Tenancies Act has limited protection for you. Your rental unit is then available to you as a part of your employment. Whether or not you continue to reside in the unit is a part of the terms of your employment and the RTA will have very little to say about it. If your son quits you don't have to vacate unless your boss requires it--which presumably will mean that he terminates your employment.

      Remember that while the RTA has very little to say about the loss of rental units for superintendents, this does not mean that employers can do whatever they want to a superintendent. Employment law (including the Employment Standards Act) will provide rights and remedies to employees who are not treated properly by their landlord employers.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  12. Thank you Michael, you have been very helpful.

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  13. hi Michael is law you pay rent for your unit being super or the landlord says i will pay you the extra rent in your salary

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    Replies
    1. Hi: The residential tenancies act does not deal with how a superintendent is paid. Because the housing comes with the job, it is up to you to negotiate how rent is paid (and whether any is paid at all). The Residential Tenancies Act only deals with Superintendent Units and termination upon job loss. It does not get into the details of the job, salary, working conditions, etc..

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  14. Hi Michael,
    I have been working as a property Manger for the same company in Toronto for 15 years. I live in one of the units, of one of the properties I manage for them ; I currently manage 3 properties.
    I resided in the building as a tenant prior to obtaining employment.
    I have recently found out that the owners are selling 2 of the properties. One is the one that I reside in.
    I have no employment contract.
    Am I classified as a common law employee, or do regular employment standards apply in my case?
    Would I be entitled to any severance package with the sale of a property, and what would be my rights surrounding staying in the unit?
    Any information you could provide me is appreciated. Thanks for your time and assistance.

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    Replies
    1. Hi: The Residential Tenancies Act does not deal with your employment related rights. The RTA does deal with the termination of superintendents premises and exemptions from the RTA where the housing is associated with employment. I trust that you are aware of those exemptions and I suspect from your statement that you were a tenant prior to obtaining employment that you are aware that having been a tenant before employment commenced likely gives you RTA protection in relation to your unit--especially if it is the same unit that you had been living in at the time of taking up the employment. If you moved during the course of your employment it is less likely that you have RTA rights.

      With respect to your employment rights I am unable to offer you any real guidance. Without an employment contract you are still an employee. I haven't heard of it referred to as a common law employee--you're just a regular employee. What you may be referring to is the distinction between Notice under the Employment Standards Act and notice as awarded by a Court. Court awarded pay in lieu of notice may be considered as more generous than the statutory notice provided under the ESA. Often enough, if people sign an actual employment contract that contract has a clause limiting notice to the ESA periods (because they are less). This is legal.

      Sorry that I can't help you with the details of the employment issues. Consider retaining an employment law lawyer to help you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  15. Hi Michael,

    I realize that superintendent's rights are basically not existent ,however we were employed 11 years ago as janitors for a building and have retained this position during the full period. The building was purchased 3 years ago nd we kept on with the same conditions. We have a lease which itself which sates "the following supersedes article 23 because of janitors duties of ours 90 days notice will be required for termination of tenancy and if your contract is not renewed. You will have to vacate the unit granted as compensation of
    your duties". .there is also contract that states "In case agreement is not renewed for another term you will need to vacate the rented apartment and a ninety days written notice will be needed. My question is would the LTB take the 90 day notice into consideration as we have a termination letter for end of month and must vacate same day. Please note termination was not for just cause the landlord wants to turn unit into revenue and our first choice is to remain as paying tenants e went to community legal services but had no faith in his advice long story but never met a more incompetent paralegal. thanks for your help

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    Replies
    1. Hi: This is interesting and I'd be intrigued to read the exact language of your contract. Normally, a superintendent's tenancy is terminated upon termination of the employment. The superintendent then has 7 days to vacate the apartment and the landlord may not charge for that one week. In your case, the landlord has by contract agreed that you will have 90 days notice of termination of your tenancy (this is the part that it would be great to have the exact language of the entire contract).

      The 90 days versus 7 days seems to be in an apparent conflict. We know that where the terms of a contract contradict the Residential Tenancies Act the term in the contract is deemed to be void and unenforceable (section 4 RTA). In one sense, it would be arguable that the 90 days granted to you is contrary to the RTA (even though it is a benefit to you) and hence it is void.

      HOWEVER--and this is a very BIG however, I think you may be saved by the wording of section 93. That is the section that deals with Superintendents. Note the specific wording:

      93 TERMINATION OF TENANCY---(1) If a landlord has entered into a tenancy agreement with respect to a superintendent's premises, UNLESS OTHERWISE AGREED, the tenancy terminates on the day on which the employment of the tenant is terminated.

      The contract you refer to, assuming the wording is what you say, is the "unless otherwise agreed". Hence, the wording of your contract is important and I take from what you've said that you have an agreement with the landlord that your tenancy and employment requires 90 days of notice for termination. The key is to highlight the language that reflects the "otherwise agreed" portion of your contract.

      When you don't move out in accordance with the landlord's demands the landlord will be required to apply to the Landlord and Tenant Board for an eviction Order. At that time, (and again presuming that the paperwork supports the argument) you will be able to put the 90 days to the landlord and tenant board and certainly the Board will take notice of this point. Before you can be evicted your tenancy needs to be terminated. If your agreement supports a 90 day notice period then you can't be evicted before that time has elapsed.

      In case you are wondering whether your unit is a "superintendent's unit"--note the definition of superintendent's premises in section 2 of the RTA. Is specifically includes a rental unit that is used by a person employed as a janitor. Hence you're covered.

      Lastly, even if the language of the contract isn't in your favour the law still gives the adjudicator discretion to order a different eviction time period than the presumptive one week under the law. It would be a very rare case where the Board does not give the superintendent a bit more time to get organized and move. I've easily and successfully argued for 60 days from termination (without a contract) simply on the basis that moving is difficult and expensive. The counter argument is that it is imperative that the landlord get the superintendent's premises as this particular unit is critical to the operations of the building (easy to say, difficult to prove).

      I'm sorry that your discussion with the paralegal did not work out well. Perhaps try another one. If not, and you're in Ottawa (not sure where you are), give me a call and I will help you out pro bono (no charge) and review your paperwork.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. wow thanks so much will call you Monday

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    3. This is an update of our situation. First I would like to thank you for your excellent advice which we followed and has resulted in our maintaining our residence for the full 90 days as stipulated in both our contract and lease. We followed your advice and contacted all the agencies you suggested. We sent a letter to the owner who decided not to evict or go to the rental board as our cause was well stated in our letter sent by UPS. He did not ever respond directly to us but the cleaner who now comes to the building advised that we are here until the 90 days expired and we have also been given keys to house our Ebikes. Thanks once again for your help and great direction. PS for those of you planning to take on a part-time janitor or superintendent position a bit of advice get a separate lease not tied to the job pay rent and get reimbursed separately for the work.

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  16. Hi Michael , i have been managing the building were i reside for over 10 years but 2 mopnth ago the building was sold .due to this i was employed with the new company bur just today i recieved notice of termination being asked to move out asap or pay the proprated rent .what am i to do ? does the owner have to compensate me in anything or any way possible .I am not able to move at the time my some just recentky had a TBI and im struguling as far as money is concerned is there anything i can do?

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    Replies
    1. Hi: If you lived in the building, as a tenant, before being employed by the landlord then you perhaps have more substantial rights under the Residential Tenancies Act. However, if you moved into the building you are managing as part of your job then your rights under the Residential Tenancies Act are quite limited. I think that your question is more employment law related. While your employer has limited obligations towards you under the Residential Tenancies Act the obligations may indeed by much more extensive in the employment law context. You should see the assistance of an employment law lawyer as that area of the law is beyond the scope of this blog.

      Good luck to you

      Michael Thiele
      www.ottawalawyers.com

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  17. I was a tenant first with a signed leased and after a few years of living at my residence I was asked to be the "On-Site" Manager with the option to return to being a rent paying tenant if I choose to. After 10 years of being the On-site Manager and a couple of new owners of the property I decided to quit my position of On-Site Manager and go back to paying rent. Every year I was given a rent increase like ALL the tenants and so now the "new" owner is trying to evict me because I am no longer the On-Site Manager. Keep in mind there is NO Superintendent Suite on the property, the owner (Landlord) just moves the rent box to whatever tenant is going to collect rent now. Do I have a chance of winning this case and continue to live in my rental unit and pay rent???

    ReplyDelete
    Replies
    1. Hi: You should have no difficulty winning your case. If the Landlord tries to take you to the Board for an eviction Order speak with duty counsel in advance or pop into a local legal aid clinic and see if you can speak with a lawyer there about your case. There are lots of decisions dealing with situations like yours.

      While I don't necessarily agree with all of the legal reasoning in the decision, here is a link to a case that I think you will find rather similar to your own facts. (you will have to cut and paste it into your browser as I can't make links live in replies to comments)

      http://www.canlii.org/en/on/onltb/doc/2009/2009canlii92620/2009canlii92620.html?searchUrlHash=AAAAAQApc3VwZXJpbnRlbmRlbnQgdGVuYW50IGV2aWN0IHByaW9yIHRlbmFuY3kAAAAAAQ&resultIndex=1

      If you want to research other cases, you will find several on www.canlii.org (where the above link takes you). It is a legal database and it is free to search and use.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.