Canadian Employment Law Today

Fired superintendents can stay in apartment: Board Employment contract allowed superintendents the option of staying and becoming regular tenants if employment was terminated BY BRAM LECKER IT IS not uncommon for an apartment building or condominium to employ at least one superintendent. It is also not un- common for a superintendent to receive a free or discounted apartment in the build- ing where she works as a component of her remuneration, on the condition that she remain employed as the building's superin- tendent. What happens if the superintendent is suddenly no longer employed with the build- ing owner or manager either by resignation or dismissal? Is the superintendent obligated to vacate the apartment? In Ontario, the answer rests on the proper interpretation of the wording of ss. 93(1) and (2) of the Residential Tenancies Act, 2006, which states the following: "(1) If a landlord has entered into a ten- ancy agreement with respect to a super- intendent'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 superinten- dent's premises within one week after his or her tenancy is terminated." e act provides that a superintendent whose employment has been terminated, must vacate the premises within seven days; however, the right for the building owner to evict is not absolute. e act allows for an al- ternate agreement to supersede s. 93 where- by it states "unless otherwise agreed." In the recent decision of Ramgoolam and 1815212 Ontario Inc., a dispute arose after the employment of the co-superintendents, Rookmatie Ramgoolam and Gowcharan Rooplal, were suddenly terminated without cause. At the time of the termination, Ram- goolam and Rooplal were cohabitating as common law spouses. As part of their com- pensation, they received a rent-free apart- ment at the building in which they were em- ployed. By way of the termination letter, the em- ployer demanded that Ramgoolam and Rooplal vacate the premises within 13 days. However, the couple refused to leave. e employer applied to the Landlord and Ten- ant Board for an eviction order. At the hearing, counsel for Ramgoolam and Rooplal argued that the employees had entered into an employment agreement at the time of hire. Of particular interest was the first paragraph of the employment agreement which stated: "Should this agreement be terminated by any reason by either party the employee hereby agree that they shall vacate their as- signed apartment and parking spot within two weeks or the employee may elect to ap- ply and become a tenant of their assigned apartment subject to the standard review, and agree to pay full rent at the then current market rate." e central factual dispute between the parties was whether or not the employees elected to apply for their unit. e employer unsuccessfully argued that no formal written request had been submitted. Counsel for the employees argued that through their actions, Ramgoolam and Rooplal had demonstrated that they wanted to stay in the building as regular tenants. For example, the employees refused to leave the apartment when demanded by the employer to do so, they submitted cheques to the landlord to pay for two months of rent, and the employees communicated to the board their desire to stay in the apartment. e board decided that a formal written request for an application was not necessary. Furthermore, it was not even necessary to use the phrase "can we have an application form." e board found that the actions of the employees were sufficient to conclude that they wished to remain in the rental unit as regular tenants. e contract satisfied the requirements for "unless otherwise agreed" pursuant to ss. 93(1) of the act and so the employer was not entitled to evict the former superintendents, subject to the standard of review which the board decided was nothing more than a credit check. e board ruled that the employer had essentially agreed through the employment contract that the former superintendents could remain in the rental unit even if their employment was terminated, provided they wanted to and were able to pay market rent. In other words, the wording of the employ- ment contract eliminated the employer's ability to exercise its right to evict the former superintendents. erefore, the employer's legal rights pursuant to s. 93 of the act are not absolute and can be contracted out. Accordingly, the board dismissed the employer's application and allowed the former superintendents to remain in their apartment as regular tenants. For more information see: • Ramgoolam and 1815212 Ontario Inc. (Jan. 5, 2016), File No. TEL-63065-15-AM (Ont. Landlord and Tenant Bd.). Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends ABOUT THE AUTHOR Bram A. Lecker Bram A. Lecker is principal of Lecker and Associates, an employment and disability law firm in Toronto. He can be reached at (416) 223-5391 or equalizer@leckerslaw.com. The former superintendents paid two months' rent, refused to leave, and informed the board they wanted to stay. This was sufficient to demonstrate that they wanted to remain tenants.

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