Foster v. Lewkowicz et al. (1993), 14 O.R. (3d) 339

The Windsor House rented rooms on a daily, weekly, or monthly basis. Foster resided there from August 1992 to January 1993. His room included a kitchen and bedclothes but no cleaning services. Pursuant to the Guest Registration agreement he signed, he was billed on a daily basis, could vacate without formal notice, agreed to the house rules, and agreed that his status was that of a guest in a hotel under the Innkeepers Act. In January 1993, he was evicted without notice. He brought an application seeking an order that he was a tenant and thus entitled to protection under the Landlord and Tenant Act. In finding that Foster was a tenant, the Court held that the status was to be determined without regard to what the parties called themselves but rather by using a predominant purpose test, which takes into account the following, among other, factors:

1. Is the occupation somewhat permanent? Has the occupant brought to the room personal items typically found in a home and not a hotel such as pictures?

2. Is cooking permitted in the unit?

3. Are typical hotel services such as room service available?

4. Does the occupant have control over the unit, or can the owner enter at will?

5. Who is responsible for cleaning the unit?

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