Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Residential Tenancies Act, 2006 (RTA) in relation to a tenancy that originated in a “life lease” building and continued after conversion of the building into a condominium.
• Application of s. 51(1) RTA preventing a landlord from giving a s. 48 “own use” termination notice to a tenant who occupied the unit at the time of condominium conversion.
• Allocation of the burden of proof on the landlord to establish that the tenancy fell within an exemption under s. 5 RTA, and the Board’s finding that this burden was not met.
• Evidentiary gaps regarding the nature and terms of the “life lease” interest between the prior holder (Mr. Hui) and the original owner (ROS), and the legal effect of the receivership, vesting order, and condominium conversion on the tenancy.
• Characterization of the issues before the Landlord and Tenant Board (LTB) and on appeal as questions of mixed fact and law, limiting the Divisional Court’s jurisdiction under s. 210 RTA.
• Reliance on and interpretation of Bory v. Bory, 2016 ONSC 526, in distinguishing “life leases” from “leases for life” while affirming that lifetime tenancies are not exempt from the RTA.

Facts and procedural history

The dispute in Vanderhoof v. Sakhawat arose from a long-standing residential tenancy in a retirement building that underwent significant structural and legal changes over time. The tenant, Kazi Javed Sakhawat, began occupying the unit on April 1, 2011 under a written one-year residential tenancy agreement with an individual, Leon Hui, after which the tenancy continued uninterrupted on a month-to-month basis. At that time, the building was operated by Rose of Sharon (Ontario) Retirement Community (ROS) and was described as a “life lease” building. Mr. Hui was found by the Landlord and Tenant Board to have an “interest in the property as a life-lease holder,” though the exact terms of that interest were never put into evidence.
ROS later encountered financial difficulties and was placed into receivership. In the course of those receivership proceedings, the receiver caused the registration of a condominium corporation on May 18, 2022, converting what had been a retirement/life lease building into a condominium building. Following this conversion, individual units were sold to new owners pursuant to an approval and vesting order of the Superior Court of Justice dated July 27, 2022. One of the purchasers was the appellant, Evelyn Vanderhoof, who acquired the condominium unit that Mr. Sakhawat continued to occupy.
After the sale, the receiver sent notices to the tenant indicating that the landlord was assuming the tenant’s month-to-month lease and directing the tenant to make rent payments to the new landlord after the closing date. These communications did not purport to terminate the existing tenancy or to create a new, fundamentally different arrangement; they treated the tenancy as continuing, with only the identity of the landlord changing.

Application before the Landlord and Tenant Board

Following her purchase, Ms. Vanderhoof brought an application before the Landlord and Tenant Board seeking to terminate the tenancy on the basis that she, as landlord, in good faith required possession of the rental unit for the purpose of residential occupation for at least one year. This was a standard “own use” application under s. 48 of the Residential Tenancies Act, 2006 (RTA). The landlord’s key argument was that the special protection in s. 51(1) of the RTA—which prevents landlords from giving a s. 48 notice to a tenant who was a tenant at the time of a condominium conversion—did not apply.
The landlord’s core legal theory was that, because the building had been a “life lease” building before conversion, it was not a “residential complex” governed by the RTA at that earlier stage. On this view, the tenancy fell outside the RTA’s regime when first created, and the subsequent conversion to a condominium could not retroactively clothe the tenancy with the protections of s. 51(1). The landlord further contended that a “life lease” is a form of ownership interest rather than a tenancy, and therefore outside the ambit of the Act.
In assessing the application, the Board began from the statutory presumption in s. 3(1) RTA that the Act applies “to all rental units in residential complexes” subject only to specific exemptions, and that it prevails over conflicting legislation other than the Human Rights Code under s. 3(4). It is also remedial, tenant-protective legislation. The Board accepted that the parties were in a landlord-tenant relationship governed by a tenancy agreement and that the unit was a rental unit within a residential complex at the time of the application.
The Board then examined whether any exemption took the tenancy outside the Act and whether the landlord had established that s. 51(1) was inapplicable. It found the evidentiary record incomplete in several respects. There was no evidence of the actual contractual terms of the “life lease” between Mr. Hui and ROS or how that arrangement legally interacted with the tenant’s lease. The Board had only the standard residential tenancy agreement between Mr. Hui and the tenant. There was also no adequate evidence as to the precise legal effect of the receivership proceedings and the Superior Court’s approval and vesting order on the tenancy. The Board had requested further information about those court orders because it recognized that they could affect the legal status of the tenancy, but the landlord ultimately chose not to rely on the vesting order and did not supply the requested materials.
On this record, the Board concluded that it could not properly determine, in the abstract and “in a vacuum,” how any prior “life lease” interest might have altered what clearly appeared to be an ongoing residential tenancy in a residential complex at the time of the application. In the absence of concrete evidence to displace the statutory presumption of coverage under the RTA, the Board held that the Act applied and that s. 51(1) barred the landlord from serving a s. 48 “own use” termination notice on a tenant who had been in the unit when the building became subject to a registered condominium declaration and description.
In addition, the Board referred to Bory v. Bory, 2016 ONSC 526, a case involving a “lease for life.” That decision held that s. 48 could not be used by a landlord to recover possession during the tenant’s lifetime because the tenancy term itself was for the tenant’s lifetime; however, the tenancy remained subject to the RTA. The Board did not treat Bory as dispositive on the nature of “life leases” generally but cited it for the narrower proposition that even a lifetime tenancy is not exempt from the Act. Having found that the landlord had not established any statutory exemption or a basis to avoid s. 51(1), the Board dismissed the landlord’s termination application.
The landlord then sought a review of the Board’s initial decision. On review, the Board again rejected the landlord’s position, noting that there were no binding court decisions holding that life leases as a category are not governed by the RTA and confirming that the original member’s conclusion—that the tenancy did not fall within any exemption—was a viable interpretation of the Act. The landlord’s request for review was denied.

Appeal to the Divisional Court

The landlord appealed both the initial and review decisions of the Landlord and Tenant Board to the Divisional Court, as permitted by s. 210 of the RTA, which confines appeals to questions of law. The standard of review on such an appeal is correctness, but the court’s jurisdiction is limited: it cannot revisit questions of fact or mixed fact and law unless a pure, extricable error of law is shown.
On appeal, the landlord reframed the central issue as a threshold question of law: whether life lease arrangements, as a general category, fall outside the RTA, rendering s. 51(1) inapplicable in this context. She argued that the Board committed an error of law by failing to address and resolve this threshold question, by treating life leases as though they were governed by the RTA, and by improperly placing on her the burden of proving that the tenancy fell within an exemption from the Act. She also contended that the Board had conflated life leases with “leases for life” as discussed in Bory v. Bory.
The tenant responded that the issues actually determined by the Board were rooted in the particular evidentiary record before it and thus constituted questions of mixed fact and law, not pure questions of law. In the tenant’s view, the Board had not ruled that life leases in general are governed by the RTA; rather, it had simply found that, on the limited evidence before it regarding this specific tenancy and this specific building, the landlord had not displaced the Act’s presumptive application or established an exemption.

Court’s analysis and legal reasoning

Justice O’Brien began by confirming that the court’s appellate jurisdiction under s. 210 RTA is restricted to errors of law and that the standard of review on such questions is correctness. The reasons make clear that the court accepted the tenant’s characterization of the issues before the Board as involving mixed fact and law, thus largely insulating the Board’s conclusions from appellate intervention.
The court emphasized that the landlord herself had invoked the RTA by bringing a termination application under s. 48, which presupposes the existence of a “landlord,” “tenant” and “tenancy” as defined in s. 2 of the Act. Both parties accepted those characterizations. The Act, being remedial and tenant-protective legislation, must be interpreted purposively with a focus on tenant protection, as recognized in earlier appellate authority such as Elkins v. Van Wissen, 2023 ONCA 789. Within this framework, the starting point is that the RTA applies to all rental units in residential complexes, subject only to specified exemptions.
The definition of “residential complex” in s. 2 RTA includes “a building or related group of buildings in which one or more rental units is located.” It was undisputed that at least by the time of the Board hearing the building fit this definition and the unit was a rental unit. Section 3(1) expressly provides that the Act applies to all rental units in residential complexes despite any agreement or waiver to the contrary, and s. 3(4) further states that the Act prevails over other conflicting statutes except the Human Rights Code. Against this statutory backdrop, once the Board accepted that it was dealing with a rental unit in a residential complex, the onus fell on the landlord to establish some applicable exemption under s. 5 or otherwise to show that s. 51(1) did not apply.
Justice O’Brien held that the Board was entitled to find that this burden was not met. The crucial difficulty for the landlord was evidentiary. There was no detailed proof of the nature and terms of Mr. Hui’s “life lease” interest with ROS, no explanation of how that interest coexisted with or affected the tenant’s residential tenancy, and no adequate evidence as to the legal effect of the receivership, the Superior Court’s vesting order, and the conversion to condominium status on the tenancy. The Board had specifically asked for more information on the court proceedings because it recognized that the Superior Court’s orders might bear directly on the tenancy, but the landlord then chose not to rely on those orders and did not present the necessary materials.
In these circumstances, the Board concluded that it lacked a sufficient evidentiary foundation to decide, as an abstract legal matter, whether a prior life lease interest had taken the tenancy outside the RTA’s regime. It therefore treated the case as one in which the default presumption of coverage under s. 3 applied. Justice O’Brien agreed that this approach was grounded in the facts and the evidentiary record, not a general pronouncement about life leases as a class. As such, the Board’s conclusion that the Act applied, and that s. 51(1) barred a s. 48 “own use” notice in this case, was a determination of mixed fact and law that did not reveal any extricable error of law.
The court also addressed the Board’s use of Bory v. Bory. It held that the Board had not improperly conflated life leases with “leases for life.” Instead, Bory was cited for the more limited point that even a lifetime occupancy arrangement does not automatically fall outside the RTA and that such occupancies can still constitute tenancies subject to the Act. Given that the Board lacked evidence on how the parties’ pre-conversion interests differed from a lifetime tenancy or other arrangements previously considered by the courts, it was open to the Board to regard Bory as at least relevant background. Moreover, even if the reference to Bory were set aside, the Board’s core conclusion—that the landlord had not established any exemption from the Act—would remain unchanged.
Justice O’Brien ultimately held that the Board had not erred in finding that the Act applied to this tenancy and in placing the onus on the landlord to prove an exemption. Because no reviewable error of law was identified, the court declined to interfere with the Board’s decisions.

Outcome and monetary orders

In the result, the Divisional Court dismissed the landlord’s appeal and upheld both the initial and review decisions of the Landlord and Tenant Board. The tenant’s statutory protection under s. 51(1) RTA was left intact, and the landlord was not permitted to terminate the tenancy on the basis of her asserted good-faith intention to occupy the unit for her own residential use.
On the issue of costs, the court recorded that the parties had agreed on a costs figure if the appeal were dismissed. Consistent with that agreement, Justice O’Brien ordered the appellant, Evelyn Vanderhoof, to pay the respondent, Kazi Javed Sakhawat, costs in the amount of $3,500 including HST, plus the disbursements claimed in the respondent’s costs outline. The decision does not quantify the amount of those disbursements, so the total monetary recovery in favour of the successful party cannot be precisely determined from the judgment text alone. The successful party in the proceeding was therefore the respondent tenant, who succeeded in maintaining his tenancy and obtained a quantified costs award of $3,500 inclusive of HST, together with additional, unspecified disbursements.