The Alberta Residential Tenancies Act (RTA) allows landlords to evict tenants who assault or threaten to assault their landlord or other tenants. But what constitutes assault for the purpose of the RTA? Is it the same as the test for the tort of assault? Or the same as the test for assault under the Criminal Code?
In tort law, assault and battery are independent causes of action. Battery is the direct, intentional and physical interference with another person that is either harmful or offensive to a reasonable person. Assault, on the other hand, is any direct and intentional act that causes someone to apprehend immediate harmful or offensive bodily contact.
Section 265 of the Criminal Code defines “assault” as the intentional application of force to a person without their consent, or threats by act or gesture to apply force to a person. Technically, any intentional touch may constitute an intentional application of force. However, the common law principle of de minimis non curat lex (the law does not concern itself with trifles) can be applied to dismiss very minor assault charges.
Alberta’s Provincial Court has not expressly adopted either of those tests in the residential tenancy context, but has used language and principles applicable to both.
The relevant legislation is section 30 of the RTA:
Termination of tenancy for damage or assault
30(1) Notwithstanding section 29, if a tenant has
- done or permitted significant damage to the residential premises, the common areas or the property of which they form a part, or
- physically assaulted or threatened to physically assault the landlord or another tenant,
the landlord may apply to a court to terminate the tenancy or may terminate the tenancy by serving the tenant with a notice at least 24 hours before the time that the tenancy is to terminate.
The question of what constitutes physical assault for the purposes of the RTA was answered in the 2005 Alberta Provincial Court case, Stubicar v Popilchak. In that case, the landlord (Stubicar) applied for an order to terminate a tenancy alleging the tenant (Popilchak) had committed a substantial breach of the tenancy agreement by assaulting her. The basis for this claim was that, during an argument, Popilchak grabbed Stubicar’s arm. Judge Hess dismissed the application, finding that the incident in question did not meet the definition of assault under the RTA:
The other complaint made by Stubicar is that Popilchak touched her arm. Given the purpose of the Act, I am not of the view that a mere touching in an apparent attempt to get someone’s attention is an assault. I am of the opinion that the legislature contemplated an assault which had some consequence. There is no consequence from the incidental touching [sic] which Stubicar has complained.
Thus, in order for contact to constitute physical assault for the purposes of the RTA, it must be more than mere touching; it must be “consequential” and result in some degree of harm. The intention of the touch is also relevant. In this case, the touch was merely incidental as Popilchak’s intention was to hand a letter to Stubicar; an inconsequential and accidental touch did not constitute physical assault.
Threatening Physical Assault
A tenant can also be evicted for threatening to assault the landlord or another tenant. This rule was applied in the 2012 Alberta Queen’s Bench case, Grewal v Selim, in which a landlord applied to terminate a tenancy on the grounds that the tenant had threatened to assault him. The court agreed and terminated the tenancy, stating at paragraph 6:
Second, Mr. Selim denies assaulting Mr. Grewal. The only evidence he has filed does not contain a clear denial of an assault. He says, “How I do assault him and same time my hands tied with camera and phone to phone 911 for assault me and ambulance came to see me.” Assaultive behaviour includes physically threatening behaviour. That, in my view, answers Mr. Selim’s question.
This decision suggests that not only can a tenant be evicted for making verbal threats to a fellow tenant or landlord, but also for making threatening physical gestures. It seems likely then that a tenant physically touching a tenant or landlord in an inconsequential way could result in eviction if it were done in a threatening manner.
A tenant can also be found to have threatened physical assault via written communication. This happened in the 2016 Alberta Provincial Court case of Devonshire Properties Inc. v Tran, in which the tenant wrote a letter to his landlord saying, “You and Sutherland owe us blood and Scheurer needs to be taught a lesson.” The Court concluded, at paragraph 28:
Unfortunate for the Defendant is his statement that these comments in Exhibit 5 were written out of frustration and anger lending credence to the suggestion that these were not harmless comments but rather in the nature of a threat. Viewed by an objective reasonable person I cannot see how these comments can be seen as anything but a threat. Consequently I am satisfied that the literal wording of the comments in Exhibit 5 was clearly a threat to the Plaintiff and its employees. It is a clear contravention of section 30(1)(b) of the RTA.
As with the physical touching, the determination of whether section 30(1)(b) had been breached by a written communication required not only a review of what the tenant said or did, but also, importantly, their intention. In this case, the court decided that the written comments constituted a threat of assault because the writer intended them to be threatening.
I therefore propose that the test for whether a tenant has assaulted or threatened to assault a landlord so as to have violated section 30 of the RTA can be stated as follows:
- Did the tenant touch the landlord or another tenant in a consequential way?
- Was the touch intended to threaten or assault? (If yes to both of these questions, assault is found. If no to either, it is likely that no assault will be found although it is possible that a highly consequential touch might still be found to constitute assault even without intent to assault).
- If there was no touch, did the tenant threaten, through any method of communication, to touch the landlord or another tenant in a consequential way?
- Did the tenant intend their communication to be threatening? (If no to question one, but yes to both questions three and four, threat of assault found).
 Ibid, at para 14.