R.C. Mills QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 506 Date: 2009 12 23 Docket: Q. B. G. 1455 of 2009 Judicial Centre: Regina BETWEEN: SHEILA BUCH and NATHAN KOCH, JEFFERY DON VANIN and THE DIRECTOR OF RESIDENTIAL TENANCIES RESPONDENTS Appearing: Adam T. Ailsby for the appellant Nathan Koch appearing for himself Jeffery Vanin appearing for himself JUDGMENT GUNN J. December 23, 2009 [1] Sheila Buch appeals from a decision of the Hearing Officer of the Office of Residential Tenancies, dated August 27, 2009. The appeal is brought on the following questions of law: (a) The Hearing Officer erred in law by declaring that she did not have the jurisdiction to deal with the matter before her. (b) The Hearing Officer erred in law by determining that the tenant, Jeffery Vanin is entitled to the rights that the lease affords. (c) The Hearing Officer erred in law by failing to make an Order of Possession of the rental unit in favour of Ms. Buch and the respondent Nathan Buch. THE LEGISLATION [2] The following provisions of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001 have relevance: In this Act: ... (f) “landlord” means person who grants to another person the exclusive right of tenancy to rental unit and includes any of the following: (i) the owner of the rental unit, the owner’s agent or another person who, on behalf of the owner, grants to another person the exclusive right of tenancy to rental unit; ... (l) “rental unit” means living accommodation rented or intended to be rented to tenant; ... (q) “tenancy” means tenant’s right to possession of rental unit during tenancy agreement; (r) “tenancy agreement” means an agreement, whether written or oral, express or implied; (i) that is between landlord and tenant respecting possession of rental unit and use of any common areas and services and facilities that are the subject of the agreement; and (ii) pursuant to which the tenant...agrees to pay rent... 3(1) Notwithstanding any other Act but subject to section 5, this Act applies to tenancy agreements, rental units and other residential property. 9(1) For the purposes of this Act, the relationship of the landlord and tenant under tenancy agreement is one of contract only and does not create any interest in land in favour of the tenant. ... 10 Except as modified or varied by this Act or the regulations, the common law applies to tenancy agreements. 19(1) written tenancy agreement must comply with any prescribed requirements and must contain all of the following: (a) the standard conditions; (b) the correct legal names of the landlord and tenant; (c) the address of the rental unit; (d) the date the tenancy agreement is entered into; (e) the address for service and telephone number of the landlord or the landlord’s agent; (f) telephone number the tenant may contact in the case of emergencies, including emergency repairs, if that number is different from the number required by clause (e); (g) the agreed provisions respecting the following: (i) the date on which the tenancy commences; (ii) if the tenancy is periodic tenancy, whether it is on weekly, monthly or other periodic basis; (iii) if the tenancy is fixed term tenancy, the date the tenancy ends; (iv) the amount of rent payable for specified period, and, if the rent varies with the number of occupants, the amount by which it varies; (v) the day in the month, or in the other period on which the tenancy is based, on which the rent is due; (vi) provision that identifies whether the landlord or the tenant is to pay for utilities; (vii) provision setting out those services and facilities that are included in the rent; (viii) the amount of any security deposit and the date the security deposit was or must be paid. (2) Within 20 days after landlord and tenant enter into written tenancy agreement, the landlord must give the tenant copy of the signed agreement. (3) If tenancy agreement is not in writing, the landlord must nevertheless provide the information required by clauses (1)(e) and (f) to the tenant, in writing, within 20 days after the date that they enter into the tenancy agreement. (4) If the premises in or on which the residential property is situated contains more than one rental unit and the landlord retains possession of part of the premises for the common use of all tenants, the landlord shall post and maintain in conspicuous place in the premises or at or near the main entrance to the premises prominent notice containing: (a) the legal name of the landlord; and (b) the address for service and telephone number of the landlord or the landlord’s agent. (5) tenant’s obligation to pay rent is suspended if the landlord: (a) subject to subsection (6), in the case of written tenancy agreement, does not provide copy of the written tenancy agreement required by subsection (2);or (b) in the case of tenancy agreement that is not in writing, does not provide the information required by subsection (3). (6) landlord may apply for an order pursuant to section 70 that the tenant’s obligation to pay rent is not suspended pursuant to clause (5)(a) and that the tenant must continue to pay rent if: (a) tenant alleges that the landlord has not provided written agreement that fully complies with subsection (1); and (b) hearing officer is satisfied that: (i) the landlord has provided the tenant with written agreement that substantially complies with subsection (1); and (ii) the tenant is not prejudiced by any error or omission in the written agreement mentioned in subclause (i). (7) tenancy agreement is not invalid if landlord fails to provide the information required of the landlord pursuant to subsection (1) or (3) unless hearing officer, on an application by the tenant for an order pursuant to section 70, is satisfied that the failure is significant and the tenant is prejudiced by the failure. 20 To create fixed term tenancy of three months or longer, the landlord and tenant must enter into written tenancy agreement. 70(1) An application for an order respecting any residential tenancy dispute between landlord and tenant must be made in the form and manner that the director may direct. (2) Subject to subsection (14), if an application is made pursuant to subsection (1) and the prescribed application fee is paid to the director: (a) the director shall: (i) select hearing officer from the panel of hearing officers appointed pursuant to section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter; and (ii) issue to the applicant written notice of the date and place of hearing; and (b) the applicant shall serve that notice on those persons concerned with the matter that the director may direct and in the manner the director may direct. (3) The director shall issue written notice of the date and place of hearing and cause the notice to be served on all parties concerned with the matter if: (a) the director becomes aware of possible contravention of or failure to comply with this Act, the regulations, an order made pursuant to this Act or tenancy agreement; and (b) the director determines that it is in the public interest to hold hearing. (4) For the purposes of subsection (3), the director shall select hearing officer from the panel of hearing officers appointed pursuant to section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter. (5) On receiving an application pursuant to subsection (1) or determining pursuant to subsection (3) that hearing should be held, the director may direct an investigation into the matter. (6) After holding hearing pursuant to this section, hearing officer may make any order the hearing officer considers just and equitable in the circumstances, including all or any of the following: (a) an order directing any person found contravening or failing to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act to stop that contravention or failure and to so comply; (b) an order requiring tenant to pay to the director all or any part of any instalment of rent otherwise payable to the landlord; (c) an order requiring the payment of damages; (d) subject to section 68, an order granting possession of rental unit; (e) an order determining the disposition of security deposit and any accrued interest pursuant to section 33. (7) If an order is made pursuant to clause (6)(b), the hearing officer may direct that the moneys paid to the director be used to remedy the landlord’s contravention of or failure to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act. (8) For the purposes of hearing pursuant to this section: (a) submission may be made: (i) orally, including by telephone; or (ii) in writing; and (b) another party to the hearing is to be given an opportunity to rebut submission mentioned in clause (a) at the time of the hearing, or at later time, and in the manner the hearing officer considers appropriate. (9) On making an order pursuant to subsection (6), the director shall serve copy of the order and copy of section 72 on each party involved in the matter with respect to which the order was made. (10) The director may serve the copies mentioned in subsection (9): (a) by personal service; (b) by ordinary mail; or (c) in the case of service on the tenant, by causing copy of the order to be posted on the door of the tenant’s rental unit. (11) In any application by landlord for possession of rental unit, the tenant may also request an order of relief pursuant to this section and hearing officer may grant that relief if it appears to the hearing officer that: (a) notice to end the tenancy agreement was given to the tenant because of the tenant’s good faith complaint to the director or to any other agency of the Government of Saskatchewan, the Government of Canada or municipality alleging the contravention of any Act, bylaw or other law dealing with health or safety standards, including housing standards; (b) notice to end the tenancy agreement was given to the tenant because of the tenant’s attempt to secure or enforce the tenant’s rights pursuant to this Act; (c) the landlord has contravened provision of the tenancy agreement or has contravened any standard condition; or (d) notice to the end the tenancy agreement was given to the tenant for non-payment of rent pursuant to section 57 and the hearing officer is satisfied that: (i) the non-payment of rent relates to amounts that are the result of an increase to the rent and the landlord increased the rent for the purpose of enabling the landlord to end the tenancy; and (ii) it is just and equitable for the order to be made. (12) An order for relief pursuant to subsection (11) may include any of the following terms of any conditions the hearing officer considers appropriate having regard to the conduct of the parties and any other circumstances of the proceedings: (a) relief with respect to payment of rent or reasonable compensation; (b) an order to restrain any contravention as mentioned in clause 11(c). (13) If hearing officer decides that the landlord is entitled to possession of the rental unit, the hearing officer may make an order for possession and order writ of possession in the prescribed form directed to the sheriff acting at the judicial centre nearest to the place where the rental unit is situated commencing the sheriff to place the landlord in possession of the rental unit as soon as is reasonably possible. (14) The director may refuse to issue written notice of hearing to, and hearing officer may decline to make an order respecting, landlord who: (a) is in contravention of an order made pursuant to this Act; or (b) has failed to forward security deposit and any accrued interest to the director pursuant to section 33. 72(1) Any person who is aggrieved by decision or order of hearing officer may appeal the decision or order on question of law or of jurisdiction to judge of the Court of Queen’s Bench within 30 days after the date of the decision or order. THE DECISIONS OF THE HEARING OFFICER: 1. DECISION DATED JUNE 24, 2009 APPLICATION: The Tenant claims that the Landlord has breached the rights of the Tenant by serving notice to vacate. The Tenant seeks an Order that the Landlord withdraw the notice ot[sic] vacate. FACTS AND CONCLUSIONS: hearing was held on June 8, 2009 at Regina, Saskatchewan. The Landlord was properly served with the Notice of Hearing as it has come to the attention of the Landlord. The Landlord was not present. Evidence was presented or given by the following persons: Jeffery Vanin the Tenant. The Tenant signed year lease to rent room in the Landlord, Nathan Koch’s home. At the time the Tenant knew only that Mr. Koch was the Landlord. In May he was served with notice to vacate by Sheila Buch advising him to leave as of June 15th as she was moving into the premises. He then learned that Ms. Buch who is Mr. Koch’s Mother was co-owner of the property. While one of pair of joint owners can serve notice to vacate, the section that the Landlord relies upon is only available to periodic Tenancies and Mr. Vanin has year lease. Secondly, even if there wasn’t lease, the notice did not provide proper notice, having been served in May and requiring the Tenant to leave on June 15th which would not be full calendar month’s notice. Therefore the Landlords[sic] to vacate cannot stand. DECISION According to Section 70 of The Residential Tenancies Act, 2006t[sic] hereby Order that the Notice to Vacate dated May 7, 2009 is set aside. [3] new hearing was scheduled for July 30 as Ms. Buch advised the Hearing Officer that she had not received notice of the hearing. [4] letter dated August 7, 2009 to Ms. Buch, Mr. Vanin and Mr. Koch from the office of Residential Tenancies stated that ”... after the hearing on July 29, 2009 it came to the attention of the Hearing Officer that the Landlord, Sheila Buch had made an application for possession of the property. This was not heard on July 29th.” Therefore new hearing was scheduled for August 19, 2009. DECISION DATED AUGUST 27, 2009: APPLICATION: The Landlord seeks an Order of Possession pursuant to section 70 of The Residential Tenancies Act, 2006 of the rental unit based on the Tenant having disputed the termination notice. The Tenant also claims that the Landlord has breached the rights of the Tenant by serving notice to vacate and seeks an order that the Landlord withdraw the notice to vacate. FACTS AND CONCLUSIONS: hearing was held on June 8, 2009, July 30, 2009 and August 19, 2009 at Regina, Saskatchewan. The Notice of Hearing was properly served personally. Evidence was presented or given by the following persons: Jeffery Don Vanin on June and July 30, 2009; Sheila Buch by telephone on June 8, 2009 and in person July 30, 2009 and August 19, 2009; Nathan Koch on July 30, 2009. The Landlords are Mother and Son. Ms. Buch lived out of province for number of years, returning in summers to reside in the premises and then returning to her job in Alberta in September. This year she wanted to move back to her house in Riceton on permanent basis. She found that her son, the other Landlord, had rented out portion of the house to Tenant and had signed 3-year lease. She seeks an order that the Tenant vacate in order that she can move into her home. The Landlord, Mr. Koch said that he sometimes works out of town and there was [in] issue with the need for someone to be in the premises for insurance purposes. He stated that he felt the responsible thing to do was to get responsible person to live as roommate so that the house would be looked after. He acknowledged that his Mother usually came home for summer but did not know that she wanted to move back permanently. The Tenant states that he signed 3-year lease in good faith. When he signed the lease, he did not know that there was second Landlord living out of province and thought that Mr. Koch was the sole owner of the property. have no jurisdiction to deal with dispute between two Landlords. can only deal with the situation between the Landlords and this Tenant. The Tenant is not at fault in this situation. He signed lease in good faith and is entitled to the rights that the lease affords. Until such time as the issues are settled between the two Landlords, the Tenant has right to remain in the property. DECISION: For the reasons set out above, dismiss the Landlord’s claim for possession and hold that the Notice to Vacate served on the Tenant dated May 7, 2009 is set aside. 1. Does the Act apply? A. Is room in house rental unit capable of being the subject of tenancy? B. Was there tenancy agreement? 2. If the answer to #1 is yes has the Hearing Officer made an error in law in finding she had no jurisdiction? DISCUSSION: 1. Does the Act apply? A. Is room in house rental unit capable of being the subject of tenancy? [5] The Act applies to tenancy agreements, rental units and other residential property (see Section 3(1)). Section of the Act sets out what the Act does not apply to. This list does not include room in house. And lastly rental unit is defined in section to be living accommodation rented or intended to be rented to tenant. So, it would appear that room in house is rental unit capable of being the subject of tenancy. B. Was there tenancy agreement? [6] Section 20 of the Act provides that to create fixed term tenancy of three months or longer, the landlord and tenant must enter into written tenancy agreement. Mr. Vanin signed form entitled “Application/Lease Agreement” for period of 36 months commencing February 1, 2009 and ending January 31, 2012. [7] Section 19 of the Act outlines the requirements for written tenancy agreements. One of the requirements of the Act is that written tenancy agreement must contain the standard legal names of the landlord and tenant (see s. 19(1)(b)). The lease agreement that Mr. Vanin signed contains the name of Nathan Koch as landlord and does not contain the name of Sheila Buch. However s. 19(7) of the Act states that tenancy agreement is not invalid if landlord fails to provide the information required of landlord pursuant to ss. (1) or (3) unless hearing officer, on an application by the tenant for an order pursuant to s. 70, is satisfied that the failure is significant and the tenant is prejudiced by the failure. No such finding was made in this case. [8] That takes us to the ultimate question of whether Nathan Koch as only one of two joint owners can bind the other joint owner? [9] In the text, Sir Richard Edgar Megarry and Sir William Wade, The Law of Real Property, 4th ed. (London: Stevens Sons Limited, 1975) at p. 394 the Honourable Sir Robert Megarry and Professor H.W.R. Wade explain the principles of joint tenancy: Any legal act, eg., conveyance or lease of the land, or surrender of lease requires the participation of all the joint tenants; one cannot dispose of it by himself, for he by himself has not the whole estate in it. But exceptions to this rule are found in the cases of personal representatives and of the determination of periodic tenancies (eg., weekly or monthly tenancies), which are determinative on the usual notice given by one of joint landlords or one of joint tenants, since unanimity is required to continue such tenancy. Yet for one co-owner to give such notice without the consent of all persons beneficially entitled will, after 1925, usually be breach of the trusts now existing in the case of co-ownership. [10] In these circumstances, clearly there was no participation by both owners in entering into this lease agreement. The Act also defines landlord as “the owner’s agent or another person who, on behalf of the owner, grants to another person the exclusive right of tenancy to rental unit” (see s. 2(f)(i) supra). Agency is the relationship between one part (“the principal” and another “the agent”) whereby the agent is empowered to act on behalf of and to represent the principal. Agency emerges from the express or implied consent of principal and agent, or by subsequent ratification by the principal of the agent’s acts done on the principal’s behalf, or by estoppel, or by operation of the principles of law. (See Agency, C.E.D. (West 3rd) (looseleaf, (Rel. 2009-10)October 2009) at 137 and 145 paras and 15). [11] There was no evidence before the Hearing Officer that Nathan Koch was in any way acting as agent for Sheila Buch. In fact Mr. Koch’s evidence would lead to the opposite conclusion. There was no express consent of principal and agent. [12] In Crampsey et al. v. Deveney (1968), 1968 CanLII 34 (SCC), D.L.R. (3d) 161; [1969] S.C.R. 267 the Supreme Court considered whether an agency might arise by implication in certain circumstances. No agency relationship was found where one of the defendants Anna Crampsey who held property in joint tenancy with her three children, listed and attempted to sell property without consulting all of the children. In Crampsey, the children refused to sign and later refused to close the transaction. Judson, J. held at 163: ... In my view, no agency relationship existed between Anna and her children at the time of the sale. It is true that she had managed the property and collected the rents for many years. She always asserted her right to do this and that she alone had the right to sell and to sign the deed. No one in the family questioned her assertions. The fact that Anna had the property listed for sale in 1960 does not take the matter any further. She had no authority from the children to do so. Indeed she did not even notify them of what she intended to do and only two actually knew of the listing. [13] Brief consideration can be given to agency by estoppel. This can arise where one person has so acted so as to lead another to believe that he or she has authorized third person, without any actual authority, to act on his or her behalf, and that other person, in such belief, enters into transaction with that third person. (See Agency, C.E.D. (West 3rd) (looseleaf, (Rel. 2009-10) October 2009) at 157, para 44.) In that case the first person is estopped from denying the fact of the third person’s agency under the general law of estoppel, and it is immaterial whether the ostensible agent had no authority whatever in fact, or merely acted in excess of his actual authority. (See Hals., 3rd ed., pp. 158-159, quoted with approval in Crampsey, at 3). [14] To create agency by estoppel, there must be some positive statement or conduct by the principal that another person had authority to act for the “principal”. In Dogwood Drilling Ltd. V. Fitterer, 1977 CanLII 2197 (BC CC), [1977] W.W.R. 724 (B.C. County Court) the court found an agency relationship existed by the course of conduct that was adopted by the defendant and sufficient words evidencing an agency. Silence or inactivity will not suffice. (See Crampsey, supra at page 4) [15] Again the facts described by the Hearing Officer here do not support an agency by estoppel, since Mr. Vanin was not aware that Ms. Buch was an owner and Ms. Buch did not lead Mr. Vanin to believe that Nathan Koch was authorized to act on her behalf. Mr. Koch did not purport to act for his mother. He was acting for himself and asserting he had that right. [16] For all of the above reasons, I conclude that there was no valid tenancy agreement between Nathan Koch and Jeffrey Vanin. [17] The Act applies to tenancy agreements and to circumstances where rental units or residential property is validly rented by a landlord to a tenant. Those circumstances do not exist here and conclude that the Hearing Officer did not err in law in deciding she did not have jurisdiction to deal with this dispute. [18] However, the Hearing Officer did err in law in determining that Mr. Vanin was entitled to the rights that the lease affords. have come to this conclusion on the basis that the hearing officer did not have jurisdiction to deal with this matter in any respect. [19] There are other remedies available to Ms. Buch to obtain possession of the property in question. And without deciding the issue, Mr. Vanin may have remedies against Mr. Koch for any damages he has suffered as result of his dealings with Mr. Koch. [20] The appeal is dismissed.
The appellant landlord and mother appeals from a decision of the Hearing Officer of the Office of the Residential Tenancies dismissing her claim for possession. The landlords are mother and son. The mother lives out of province for a number of years. She returns in summers to reside in the premises. This year she wanted to return to her premises on a full time basis. She found that her son had rented out a portion of the house to a Tenant and had signed a 3 year lease. She sought an order that the Tenant vacate the premises. The Hearing Officer found he had no jurisdiction to deal with the dispute between the two landlords. He found he could only deal with the situation between the landlords and the tenant and found that the tenant had signed a lease in good faith and is entitled to the rights the lease affords and is entitled to remain in the premises. HELD: There was no valid tenancy agreement. The Act only applies to tenancy agreements and to circumstances where rental units or residential property is validly rented by a landlord to a tenant. In the circumstances, the Hearing Officer did not have jurisdiction to deal with this dispute. However, the Hearing Officer did err in law in determining that the tenant was entitled to the rights that the lease affords. 1) A room in a house is a rental unit capable of being the subject of a tenancy. 2) Clearly there was no participation by both owners in entering into this lease agreement. Mr. Koch's evidence would lead to the opposite conclusion. There was no express consent of principal and agent.  3) The facts as described by the Hearing Officer do not support an agency by estoppel. This can arise where one person has acted so as to lead another to believe that he or she has authorized a third person, without any actual authority, to act on his behalf and that other person, in such belief, enters into a transaction with that third person. The tenant here was not aware that the mother was an owner and the mother did not lead the tenant to believe that her son was authorized to act on her behalf.