An interesting feature of estate law is that it has the potential to overlap or interact with many other areas of the law. The recent Ontario Court of Appeal (“ONCA”) case of Miller Estate v. Arguelles (“Miller”) demonstrates the intersection of estate law with questions relating to landlord and tenants and specifically, issues respecting eviction.
In Miller, the appellant was served in March and then in June 2022 with N12 Notices to End Your Tenancy (the “Notices”). The Notices were served by the owner of the unit, Ann Miller, and her son, John Miller (who managed the unit for his mother). The Notices indicated that the unit was required for occupation by Ann Miller’s daughter. While his mother was still alive, John Miller alone filed an eviction application, but Ann Miller died before the hearing.
Ultimately, the appellant refused to vacate the unit; she took the position that the Notices were invalid because Ann Miller (i.e. the landlord) was the only person who had standing to evict the landlord for the appellant’s own use and she died before the application was heard. The appellant also maintained that the eviction application failed to disclose details of all notices that the landlord had previously served. This blog will focus on the former objection.
The eviction application had been successful. The Landlord and Tenant Board (the “LTB”) replaced Ann Miller’s name on the eviction application with the name of her estate (and amended the application to disclose the missing details), thereby terminating the appellant’s tenancy. The appellant’s review of that decision by the LTB and subsequent appeal to the Divisional Court were dismissed. The appellant then appealed to the ONCA.
The ONCA held that the LTB and Divisional Court erred by considering only whether the landlord had met the statutory criteria under s. 48(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17, on the date of the June 2022 N12 notice. Specifically, “The death of Ms. Miller prior to the termination of the tenancy invalidated the June 2022 N12 notice and the eviction application. Neither Ms. Miller’s son nor her Estate had the requisite standing under s. 48(1) to continue the application and terminate the tenancy for Ms. Miller’s daughter’s occupation of the Unit.” The ONCA noted that the LTB referenced Ms. Miller’s last will and testament but that the estate had not been settled. The ONCA found that there was no evidence that the will had been probated or otherwise “proved”, nor that a personal representative had been appointed.
Further, notably, the ONCA commented at paragraph 42 of the decision:
Control over property changes with the death of its owner. As stipulated by s. 2(1) of the Estates Administration Act, R.S.O. 1990, c. E.22 (“EAA”), all real and personal property that is vested in the deceased devolves to and becomes vested in the deceased’s personal representative as trustee for the persons by law beneficially entitled to the deceased’s property. This vesting is subject to the payment of the deceased’s debts, including claims for dependant support, and other persons’ rights to take by survivorship, among other claims: EAA, ss. 2(1) and 4; Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 58(1). Importantly for the present case, it is the deceased’s personal representative that has the power to dispose of and otherwise deal with the real property vested in the personal representative… Accordingly, the Board and the Divisional Court erred by treating the addition of the Estate as a mere procedural matter. There was no jurisdiction to make the substantive amendment to cure the substantive flaws of the June 2022 N12 notice and the eviction application… Until the legal representative of the Estate is appointed or the legal owner of the Unit is known, it is impossible to ascertain who the individual landlord is for the purpose of determining whether that individual has standing to invoke s. 48(1) of the RTA.
As a result in part, the ONCA found that it was an error for the LTB to allow the eviction application and terminate the tenancy.
This decision underscores the importance of formalizing the appointment of an estate trustee. While it is true that the estate trustee’s authority stems from the will, it is clear that such authority needs to be confirmed by the appropriate processes and procedures before actions can be taken on behalf of an estate. This case is particularly unique given that the eviction process was first initiated while the landlord, Ann Miller, was alive; nonetheless, it takes more than simply amending a document (or a ‘notice’, in this case), to confer proper authority to act on behalf of an estate.
Interestingly, the ONCA concluded that the dismissal of the appeal was no impediment to the delivery of a proper N12 notice by an individual entitled to do so, and a properly constituted eviction application.
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