Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff mortgagee sought leave to issue a writ of possession to recover a mortgaged residential property following default.

• Claimed that the Residential Tenancies Act (RTA) did not apply due to a statutory exemption under section 5(i).

• Evidence regarding occupancy and living arrangements was conflicting, outdated, and insufficient to support the exemption.

• Associate Justice Kamal found that determining whether the RTA applied required proper notice to tenants and the defendant.

• The court emphasized that such a finding would significantly affect tenant and owner rights and required procedural fairness.

• Motion was adjourned for oral submissions and further evidence from all affected parties.

Facts and procedural background

Michael Croskery, the plaintiff and second mortgagee, brought a motion in writing under Rules 60.03 and 60.10 of the Rules of Civil Procedure seeking leave to issue a writ of possession for a property located at 513 Lyon Street North, Ottawa. The property had been mortgaged to the plaintiff, and the defendant, Graham Stanley Pomeroy, had defaulted under that mortgage. A judgment had previously been obtained in July 2024 for the balance owing and possession.

However, several individuals were living at the property who claimed to be tenants. The plaintiff argued that the Residential Tenancies Act, 2006 (RTA) did not apply due to section 5(i), which exempts shared accommodation where the owner resides in the building and shares bathroom or kitchen facilities with the tenants. If the RTA did not apply, the plaintiff could obtain a writ of possession without involving the Landlord and Tenant Board (LTB).

Conflicting evidence and procedural concerns

The motion materials included inconsistent statements about occupancy. An occupant initially stated the mortgagor resided there part-time, then later that he no longer lived there. The mortgagor later emailed confirming he lived at the property and also had a cottage. The plaintiff relied on these statements to argue that section 5(i) applied, and that the RTA did not govern the property.

Associate Justice Kamal reviewed the statutory framework and relevant case law, including Cowie v. Bindlish, Fisher v. Michel, and Quin v. McCaughey. These cases highlight that whether the RTA applies—particularly section 5(i)—is highly fact-specific and depends on the nature of the living arrangements, including whether the owner lived in the property throughout the tenancy, whether facilities were truly shared, and whether the arrangement was staged to avoid the RTA.

The court found that it had jurisdiction to interpret section 5(i), but that the evidence on record was inadequate. The materials were outdated, incomplete, and raised unresolved factual issues. Importantly, making a determination that the RTA did not apply would potentially strip tenants and the owner of protections and recourse under the RTA. The court stressed that procedural fairness required notice to be given to the tenants and defendant.

Outcome and next steps

The court declined to grant the writ of possession or make a ruling under section 5(i) based on the current record. The motion was adjourned for oral submissions. The plaintiff was directed to serve the motion record on the defendant and the tenants. All parties were granted the opportunity to file evidence and submissions. The matter will return for a one-hour hearing once materials have been exchanged and a date scheduled with the Associate Judges’ office.

The decision underscores the importance of procedural fairness and evidentiary rigour when a party seeks to bypass tenant protections under the RTA, even in the context of mortgage enforcement. 

No party was declared the winner at this stage. The plaintiff's motion for a writ of possession was not granted due to insufficient and conflicting evidence, and failure to provide notice to affected parties.