Outside the law: the new shadow rental market with no protections for tenants

Family evicted and describe harassment by landlord to leave long-term Airbnb
Antoine Kernen and Tianning Ning outside the property they rented through Airbnb.

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Last week the Landlord and Tenant Board in Ontario expanded a legal gray area by allowing landlords to more easily push out tenants. Advocates warn this could potentially endanger the 16,000-plus unregulated long-term rentals on Airbnb, widening an already-existing loophole in Toronto.

The potential for exploitation is seen clearly in the case of a family from Switzerland that moved to Toronto in August last year so Antoine Kernen could pursue a 12-month contract as a visiting scholar at York University.

With few affordable rental options, the family decided to take a long-term Airbnb in Toronto’s mid-town for 10 months.

What came next was a groundless eviction notice served halfway through the agreed rental term. Then, a series of intimidation tactics were launched against the family that included locking the family out of the house. Now, a LTB ruling that acquitted the landlord of any wrongdoing.

“How can this be possible? How is this fair?” asks Ning, a mother of two children who attend a local school, who also works as a merger and acquisition advisor remotely with a firm in Montreal.

Geordie Dent, executive director of the Federation of Metro Tenants’ Association, said the ruling is a major upset for renters.

“Every lawyer I’ve talked to felt that this was a slam-dunk case,” Dent said, citing case law precedent. The ruling should have passed in favour of Ning, he said.

“The decision signals to landlords that they can use Airbnb if they don’t want to be responsible for their tenancy.”

The family is now appealing the decision.

Despite this, Fairbnb’s Thorben Wieditz said the LTB ruling sets a “dangerous” precedent. It calls into question whether mid-to-long term stays on sites such as Airbnb even qualify as tenancies under the Residential Tenancies Act and whether such guests would be entitled to the same rights as other tenants.

“The decision signals to landlords that they can use Airbnb if they don’t want to be responsible for their tenancy,” he said. With long-term listings increasing on Airbnb, the ruling could have a significant impact, creating an unregulated shadow rental market.

That potentially leaves all renters more vulnerable to renovictions or bad faith N12 notices, which is when landlords evict tenants claiming “own use,” frequently used as a pretense to raise the rent or put the unit on Airbnb. Advocates say the ruling could lead more landlords to consider this type of arrangement.

And, it still remains unclear why long-term rentals are allowed to be listed on a short-term rental platform at all. Calls to city officials have so far gone unanswered.

Media relations at the LTB “respectfully declined” to give comment on the decision.

Forced to take a long-term Airbnb

Kernen and Tianning Ning had an agreement with landlord Suzanne Porter to rent the house for 10 months between August 2022 and June 2023. Ning had initially sought out a place through more conventional options, including hiring a real estate agent and looking through a website for sabbatical homes, but because they did not have Canadian credit scores, they could not qualify.

The agreement was made in writing through Airbnb for 311 days. Airbnb service agreement regulations specify that guests and hosts are required to comply with any laws that apply to the listing or the host service, including local laws, which means the Rental Tenancies Act should have applied.

According to correspondence on Airbnb between Ning and Porter, Ning had asked about signing a traditional rental agreement, saying the children’s schools might ask for a rental contract. Porter told Ning that they preferred the Airbnb platform because they included insurance “and other protections.”

The home at 69 Walmsley Boulevard that Tianning Ning and Antoine Kernen rented as a long-term Airbnb before the family moved to Toronto from Switzerland for a teaching contract at York University.

On January 2 this year, Porter sent them an eviction notice demanding that they move out by the end of the month. The standard rental agreement in Ontario requires landlords to provide a 60 day notice.

“On January 4th, she unilaterally and arrogantly changed the term of our stay to 31st January 2023,” Ning said. That's when she wrote to her neighbours asking for help.

Ning said she had no idea about her rights as an Ontario resident when the family first moved from Switzerland. The landlord was the only person her family knew here.

Porter declined Ricochet’s requests for comment, referring us to a public relations firm that said the couple are resting after their LTB victory. “Since they won, they are taking a bit of a break from the ongoing attacks,” said Deborah Knight of dkpr public relations.

In an email to the NDP seen by Ricochet, Knight said the couple “suffered great reputational damage” and demanded that a media release be removed from the party's website.

When the family moved in, Ning said, Porter “was very very kind, providing help for our children’s school inscriptions. She was a very good person. That put me in a very comfortable and confident situation.”

Ning said she’d taken the time to speak to the landlord, do a basic background check, and was satisfied with what she had found. “I was happy.”

“Legally this should’ve been a slam-dunk case but it doesn’t always work that way if you’re a tenant at the landlord board.”

But by January, Porter had changed the terms of the stay in their agreement, which, according to correspondence Ning had with Airbnb, was not authorized by the platform. She had also relisted the house on Airbnb for double the price, Ning said. “I was so surprised and hopeless.”

This was just four months after the family’s arrival in Canada.

Ning said she was warned by her neighbours to “be careful.”

“One of the neighbours told me that the landlord did this before to other tenants in very shameful circumstances,” she said. “The neighbour told me she is not a good person. She is dangerous. She’s done this before. Then I panicked. Did she have the right?”

“I decided I have to fight because I have no other choice.”

Ning issued an appeal with the LTB seeking protection under the Residential Tenancy Act in late January, while Porter made her own appeal to the LTB in February.

According to Ning, Porter was able to get an expedited hearing through her paralegal by claiming that she was “harassed” by Ning because Ning sought out help from her neighbours and the media.

On June 7, at a press conference outside the property, Ning described what had occurred in the weeks preceding, including a campaign of harassment launched by the landlord that culminated in an illegal eviction.

“In the last week of May, the landlord moved into the house next door.” That property was owned by the landlord’s wife Sarah Gardener, and the couple had rented out the duplex both as a short term rental and a long term rental in the past. It had also recently been sold by the couple, and according to their neighbour Jacqueline Brady, the house is expected to close imminently.

After moving in, the landlords began to take actions that Ning said were very intimidating and interfered with the normal course of the family’s life.

“I feared for my personal safety. I did not know what to do. Our family had become homeless. All of our possessions were in the house.”

They entered Ning’s property through the backdoor and began removing their patio furniture, they parked their car in Ning’s driveway, she said, blocking it from being used and refused to remove it. They turned off the air conditioning and ventilation on the hottest day of May. Days later, the family drove off together in their car, only to receive a call from their neighbours informing them that the landlord couple had forcibly entered their property with a locksmith and changed the locks.

The family returned immediately to find a bogus eviction notice on the front window issued by APEX Property Management, a firm that was hired by the landlords. When Ning approached the property, the landlord started “aggressively shouting” at them to get away from the property. This was corroborated by Ning’s neighbour Christine Shea.

“I feared for my personal safety. I did not know what to do. Our family had become homeless. All of our possessions were in the house,” Ning said.

The police refused to get involved and referred the matter to the Landlord Tenant Board. Ning reported that all their belongings were inside the house, including personal clothing, their children’s medication, and their work laptops.

Tianning Ning scrambles to pull her family's belongings out of a truck.

The landlords hired contractors to pack up all of the family’s belongings in plastic bags and load them onto trucks to take them away. Video and photos show Ning and her neighbours scrambling to remove the items from the trucks and take them back in their possession. Ning is still missing some items.

That’s when the landlords moved back to the street. “That was their whole purpose,” Brady said.

The landlord couple owned two properties at 69 Walmsley Boulevard (where Ning was staying) and the property right next door at 71. That second house had been sold and was due to close. Brady said the landlord moved in with the intention to push the family out. “They did it on purpose.”

The landlord claims they were alerted that the house was left unlocked and there was a mess on the floor, CTV reports. Porter said she assumed the family had left and the house was empty, which is why she moved in. She told the Star that they took “peaceful possession” of the house, which neighbours told Ricochet is not true.

Ning told the Star she’d offered to pay Porter off the Airbnb platform, but was told by Porter that she believed this would establish a “traditional landlord-tenant relationship.”

Both Brady and Shea called Porter deceitful and expressed strong suspicions and disapproval over her behaviour.

“She is the master of spinning a story,” Brady said. “That house was not empty. That door was not unlocked. There was no mess inside. Those are all the reasons why they have said they went in. That's not true.

“They watched the family leave, they called a locksmith, they had the locks changed with all of their possessions inside.”

A history of suspect behaviour

The neighbours told Ricochet that the landlord’s grounds for returning to the house are suspicious. Porter told the LTB that the house is her principal residence and that they had to move back to “deal with the stress of the death of a loved one.”

According to Brady, who has lived on the street for 11 years, and Shea, who has lived there for 10 years, the couple moved out of the house about five years ago and have since used both properties to rent out as both short term and long term rentals.

“How can this be your principal residence if you haven’t lived here for five years?” asked Shea.

“Ning will be the fourth person that they’ve evicted, and the second person to get this sob story [that] we’re coming home and you need to leave,” said Brady. The previous family that was evicted in a similar manner out of the blue was a couple that rented the upstairs unit. “It came out of nowhere.” The tenant said she didn’t believe the landlord, but had no choice.

“They did exactly the same thing to them,” said Shea, adding that the landlord also claimed then that a loved one, whose death was cited as the reason for their return, had passed away in June 2022, long before Ning had arrived in Canada.

The neighbours also mentioned two other tenants who had previously rented 69 and 71 had also been evicted. “Neither spoke highly of them [the landlords]. They did not leave on good terms,” said Brady.

What’s more, another tenant, in the basement of 69, was living in what has since been declared an illegal unit by the City, because it was actually the garage. Porter had been renting it out for years, said Shea. The house at 69 is a single-dwelling home, and while Ning lived there, the garage was rented out to someone else.

Ontario NDP MPPs Jessica Bell and Jill Andrew join Fairbnb Canada's Thorben Wieditz, neighbours and supporters at a recent press conference outside the property where the family described a campaign of harassment launched by the landlord that culminated in an illegal eviction.
Anupriya Dasgupta

“Eventually Ning [said] I don’t feel safe. What’s going on down there? She called the City to ask. The building and fire inspector said it was illegal,” said Shea.

Wieditz said that the landlord has been renting the garage out as a short-term rental.

“This garage was converted into a short-term rental unit with the kitchen and bathroom, but no fire exits,” he said. “She has been operating this garage as a short-term rental unit for a number of years against the fire code, against the City’s bylaws. Now the city has inspected it and shut it down.”

“This puts everyone above in jeopardy. This whole situation is not safe. There are very good reasons to have a fire code and to follow the fire code. We have seen it in the past in Toronto where people have converted buildings with few apartments into multiple [units]. These buildings have no fire safety and have been shut down by fire services,” Wieditz said.

Brady said it’s all driven by greed. “Their reputation precedes them. They do shady things for money,” she said.

LTB rules Ning and her family were temporary travelers

According to the LTB ruling, the landlord was not beholden to the rules of the Residential Tenancies Act because Ning’s family were travelers living in a “temporary” dwelling, exempt from the Act.

The reasons provided were that the rental was booked on a short-term rental platform, Airbnb, and that Ning’s family could not prove they were not just staying temporarily.

“We are not travelers. Our status is clear. We have work permits, I pay tax in Canada, my children have study permits,” stated Ning.

Landlords Porter and Gardener both knew this. Ning was told to consider the house her home. “So I have considered this my home.”

In Ning’s appeal to the LTB, she has compiled copious evidence supporting her version of events.

“We are not travelers. Our status is clear. We have work permits, I pay tax in Canada, my children have study permits... So I have considered this my home.”

Shea said Ning is telling the truth. “She knew how long Ning was going to be here. They knew it was 311 days. They agreed that they do long term rentals. When it suits them they just flip it around.”

“They purposely use Airbnb so that at their convenience they could kick people out,” said Shea. “They did it to several tenants in 71, they did it to [the] tenant who was renting the illegal basement apartment in 69.”

Brady said Ning was creating a home for the family. “When I met Ning, we became neighbours. She was not out having a holiday. She was living here and working here and sending her kids to school. I would see her daughter every day walking home for lunch. They were not vacationing. They were renters in a home.”

Ning said she feels the LTB is more concerned with the needs and rights of Airbnb, rather than families like her’s. “The board considers the platform” rather than the people, she said. “This is very shocking,” she said.

The decision by the LTB, which falls under provincial law, contradicts with the City’s short-term rental bylaw here.

The house does not have a short-term rental license issued by the city. However, the LTB ruling now says it is a short-term rental. “So which is it? They’ve denied our rights here. This goes beyond just our case. It’s a really political one,” said Ning.

Wieditz explained the problem. “There’s a disproportionate impact that Airbnb now has on the long-term housing market and the RTA is meant to deal with that situation.

“Short term rules don’t apply to these rentals that are offered for 28 days or longer. Neither the city’s short-term rental rules that are meant to regulate Airbnb and platforms like it apply, nor in this member’s decision does the RTA apply,” Wieditz said.

“If neither does then how are tenants protected that live for several months who book through Airbnb?”

“It’s open season if you’re a tenant. If you’re a landlord, you’re going to be able to break both the Rental Tenancies Act and criminal law without any consequence.”

Landlord and tenant lawyer Benjamin Reis, president of the Association for Canadian Clinical Legal Education, used the example of a student living in a rental unit for nine months, whom the court determined was not a temporary resident. Based on that precedent, Ning should also be seen as a tenant, and not a traveler.

“‘Temporary’ for the purposes of this exemption means brief, or shorter than seasonal. Like the length of a hotel or resort stay,” he explained in a tweet. “Nor is it relevant that the booking was initiated on the Airbnb platform. We have 50 years of jurisprudence recognizing tenancies can be created in motel rooms when you stay long enough.”

Reis said the LTB ruling sends a message that it’s okay for a tenancy to be terminated on the landlord’s wishes.

FMTA’s Geordie Dent said he sees clear bias by the LTB adjudicator in favour of landlords.

“I don’t actually think there’s any confusion out there,” he said. “I think they’ve just had an adjudicator who is either not properly trained or showing just complete bias by ignoring the law.

“I think the law is pretty clear on this. Ning is a tenant, and there is wide degree of legal precedent setting that out. There’s a divisional court case that has been set out that says that if you’re renting for over nine months you’re not a temporary or vacationing rental. There’s decades of precedent on this with people renting hotels as rental units for example. Why the adjudicator ignored all that precedent in this case, I don’t know.”

Landlord Tenant Board “fundamentally failing” to provide justice

“The Board is fundamentally failing in its role of providing swift justice to those seeking resolution of residential landlord and tenant issues,” states the Ontario Ombudsman in a May report calling for a complete overhaul of the “moribund” LTB system.

“In doing so, it is denying justice to a significant segment of Ontarians.”

The LTB is “unequipped” to respond to the harm caused “to tenants stuck waiting while they endure harassment, unsafe living conditions, and improper attempts to force them from their homes.” The report also states that the LTB has a “shortage of qualified adjudicators.”

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Dent said the LTB is a challenging system to navigate for most tenants, especially newcomers like Ning.

“Tenant rights have been largely suspended at the courts. Tenants have talked about inabilities to give evidence, inabilities to bring up counter applications that the law allows, major problems with technical issues through zoom hearings, and adjudicators at the board essentially just suspending tenant rights, and ignoring the law, in many cases, to rule in favour of landlords.

“That’s what’s happened here in this case,” said Dent.

“Legally this should’ve been a slam-dunk case but it doesn’t always work that way if you’re a tenant at the landlord board.”

Ning said that’s certainly been her experience. “The Landlord Tenant Board doesn’t care about tenants at all.” The adjudicator did not take into account all of Ning’s evidence and testimonies of harassment before passing the ruling. “This was the landlord’s hearing, not my hearing. I have not been heard yet.”

“[The LTB decision] is going to have a horrible impact on the City of Toronto. You’re probably going to see thousands of illegal evictions, massive amounts of harassment, illegal charges from tenants that are renting on Airbnb because of this decision.”

Dent expressed confidence in Ning’s appeal, but worries about what could happen to other renters on Airbnb in the meantime. “These people have rights, but now there is a case out there saying they don’t.

“I think the number of landlords on the Airbnb platform are going to act in accordance with that, and you’re going to see mass violations of tenants’ rights due to this.

“Which is what we’ve been seeing for years vis-a-vis the Landlord Board, specifically with things like landlords “own use” applications. There are thousands of incidences of criminal fraud and courts not doing anything about it.”

What happens now?

With fewer and fewer restrictions on landlords, rents just keep going up. Across Ontario, average rents have risen almost 30 per cent from 2016 to 2021, according to the latest numbers from the Canadian Rental Housing Index, released this week. Ontario has the highest number of renters in the country, with more than 1.7 million renter households, up 10 per cent since 2016.

Advocates like Dent are deeply concerned. “[The LTB decision] is going to have a horrible impact on the City of Toronto. You’re probably going to see thousands of illegal evictions, massive amounts of harassment, illegal charges from tenants that are renting on Airbnb because of this decision.

“And this is completely in line with all the intense bias towards landlords that has been uncovered by the ombudsperson that we’ve been experiencing for the last couple of years,” said Dent. “It’s turning into a nightmare right now.”

University-Rosedale MPP and Ontario NDP housing critic Jessica Bell.

“It’s open season if you’re a tenant. If you’re a landlord, you’re going to be able to break both the Rental Tenancies Act and criminal law without any consequence.”

And police will only step in to help evict a tenant, but they will never step in to help when it’s a landlord harassing tenants, he said. “They’ll beat up on a poor tenant but they’ll never go after a landlord obviously committing eviction fraud.”

University-Rosedale MPP and Ontario NDP housing critic Jessica Bell said Ning deserves rights and protection.

“Ning should be able to call the Residential Housing Enforcement Unit. She should be able to call a bylaw officer to come out and investigate this issue, and charges should be laid if there is wrongdoing.

“Unfortunately the Landlord and Tenant Board is not working, there’s no police officer who is going to intervene, there’s no bylaw officer available to uphold the law, and so these strong RTA laws are not enforced.”

Dent said most tenants don’t have the time or money to go through a lengthy legal process.

“Most tenants don’t have the resources, the time, they’ve got kids and work. They usually have to cave to this illegal behaviour and have to find somewhere else to live,” said Dent. “It's a complete wild west — brazen illegality, criminal fraud, [and] no one taking any steps to stop it.”

Have you been renovicted from your apartment, then later found it on Airbnb? Are you a former employee of Airbnb and have information to share? Email our team at editor@ricochet.media

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