By Adriel N. Clayton and Nancy E. Claridge

Transitional housing programs may be exempt from the requirements under Ontario’s Residential Tenancies Act, 2006 (the “RTA”), according to the Court of Appeal for Ontario’s April 25, 2022 decision, Smith v Youthlink Youth Services. In this case, the court considered an appeal of a Landlord and Tenant Board (“LTB”) and Divisional Court decision that found that s 5(k) of the RTA exempted a transitional housing program (the “Program”) operated by a registered charity, YouthLink Youth Services (“YouthLink”), from its application.

By way of background, the appellant had been admitted to the Program for a one-year period, but was discharged by YouthLink after approximately one month. To participate in the Program, residents first sign an intake agreement, which requires them to abide by all rules, including YouthLink’s COVID-19 protocol. After the appellant had failed to comply with the COVID-19 protocol, YouthLink determined that she “posed a risk to the health and safety of other residents, as well as YouthLink staff”, and was asked not to return until she completed a period of self-isolation. When the appellant returned early, YouthLink staff called the police and she was removed from the premises. YouthLink subsequently formally discharged the appellant from the Program with no notice or mechanism for her to contest the discharge. The appellant brought the matter before the LTB, and subsequently before the court, to determine whether her residence pursuant to the Program was subject to the RTA and the protection it affords tenants.

The court considered two sections of the RTA – subsection 5(k) and section 5.1. Subsection 5(k) provides that the RTA does not apply to:

living accommodation occupied by a person for the purpose of receiving rehabilitative or therapeutic services agreed upon by the person and the provider of the living accommodation, where,

      (i) the parties have agreed that,

                  (A) the period of occupancy will be of a specified duration, or

(B) the occupancy will terminate when the objectives of the services have been met or will not be met, and

(ii) the living accommodation is intended to be provided for no more than a one-year period.

Section 5.1 similarly exempts from the RTA’s application living accommodations provided through a program for rehabilitative and therapeutic services, among other purposes, but includes programs longer than one year in duration.

Both the LTB and the two courts found that the appellant’s occupancy was “intended for therapeutic and rehabilitative purposes and was not to exceed one year”. Further, citing a previous LTB decision, it was found that “rehabilitative services” under s 5(k) “do not have to be related to healthcare or specifically rehabilitative but may include other supports such as counseling or case management”.

While the Court of Appeal found that “transitional housing” was not defined in the RTA, it held that it “is concerned with the provision of short-term accommodation for the purpose of receiving rehabilitative or therapeutic services”. On this basis, the s 5(k) exemption applied to accommodation provided under the Program. It further added that a narrow interpretation of the subsection “risks undermining the social programs it is intended to protect” and that “the requirement that social programs comply with tenancy protections intended to regulate traditional housing relationships might frustrate or even preclude the achievement of a program’s goals.” Although the section 5.1 exemption did not apply, as it is intended for longer-term accommodation, the court stated that exemption under one section did not preclude exemption under the other section, despite some overlap between the provisions.

​Read the May 2022 Charity & NFP Law Update