Could a Person Be Charged For Lying In a Tenancy Application?
A Person Who Knowingly Provides False Information When Applying For a Tenancy May Be Criminal Charged. Additionally, Other Persons Who Knowingly Assist In Providing False Information May Also Be Criminal Charged.
Understanding That Giving False Information While Applying For a Tenancy Is Illegal and May Result in Criminal Charges
When a tenant applies for housing, the common law, the Criminal Code of Canada, R.S.C. 1985, c. C-46, and the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, expect and require that the tenant is providing accurate information so to avoid misleading the landlord that will be reviewing and considering the risks of accepting the tenant. Generally, the landlord will be interested in capacity to pay the rent on time; and accordingly, information related to creditworthiness, among other things, will be requested or required. Where a prospective tenant provides false information with intent to mislead the landlord in hopes of obtaining a tenancy, such conduct is wrongful and perhaps even criminal.
There are various sections of the Criminal Code where the providing of false information for a fraudulent or deceptive purpose may constitute a criminal act and thereby apply to, and criminalize, a prospective tenant that knowingly provides false information to a landlord. These sections include:
361 (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
380 (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars
Interestingly, other than a multitude of cases heard at the Landlord Tenant Board with findings of providing false income information where rent is geared to income per the Housing Services Act, 2011, S.O. 2011, Chapter 6, Schedule 1, and thereby a proceeding outside the realm of a criminal proceeding, there appears few, if any, cases available for citing as sources of criminal conviction for providing misleading information to a landlord during the application for tenancy. With this said, and despite the lack of cases appearing within the Canadian Legal Information Institute (CanLII) website, the case of James Regan, referred to as "Toronto's Professional Tenant" is highly referenced example of a fraud conviction against a tenant. For more information, see:
Improper Third Party Conduct
Sometimes a third party, meaning a person other than the tenant or landlord, will offer false information on behalf of a tenant (and the same would apply if done by the landlord) for the purpose of misleading and inducing. Typically, this situation may arise when a friend of the tenant provides false information to a landlord by acting as a reference and providing information contrary to actual truth such as stating that the tenant is employed, the tenant makes a certain level of income, the friend is a former landlord, among other falsieties.
Criminality, third party
As above, providing false information may constitute as "False Pretences" in violation of section 361 of the Criminal Code as well as "Fraud" contrary to section 380 of the Criminal Code. Additionally, when persons collude to breach a section of the Criminal Code, among other laws, such conduct may constitute as "Conspiracy" contrary to section 465(1) of the Criminal Code wherein it is stated:
465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that they did not commit that offence, is guilty of
(i) an indictable offence and liable to imprisonment for a term of not more than 10 years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term of not more than 14 years, or
(ii) an indictable offence and liable to imprisonment for a term of not more than five years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than 14 years;
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.
Accordingly, a friend of a prospective tenant who knowingly provides incorrect information on behalf of the prospective tenant for the purpose of inducing a landlord to enter into a tenancy relationship with the prospective tenant may, and likely is, engaging in criminal conduct and may be charged for doing so.
Tortiousness, third party
In addition to the risks of a criminal charge, a friend of a tenant who knowingly provides misleading information may also be found civilly liable for the tort of deceit. Although civil litigation for the tort of deceit is more commonly brought against the person with whom dealings were directly engaged, civil litigation for the tort of deceit may also be brought against a third party as a person outside of the contractual relations such as a friend of a tenant when the friend provided false information to a landlord on behalf of the tenant. This third party deceit form of civil litigation first occurred within the English case of Pasley v. Freeman (1789), 100 E.R. 450 and was referenced and cited into the common law of Ontario within the case of Toronto-Dominion Bank v. Mapleleaf Furniture Manufacturing Ltd., 2003 CanLII 22203 where it was said:
 Quite apart from the allegations of conspiracy and the allegations of “knowing assistance” of the fraud of the DeLucas, the Pastore defendants are liable to the plaintiff by virtue of their having acting in ways constituting the tort of deceit, which is sometimes referred to as fraud or fraudulent misrepresentation. In that regard I adopt the following statements from Klar: Tort Law (3d ed.), 2003, Thomson Canada Limited:
Deceit, as an independent tort, must be distinguished from deceitful or fraudulent conduct, as a type of dishonest behaviour. Its existence as an independent tort, not linked to a contractual relationship between two parties, was confirmed in the case of Pasley v. Freeman. This case decided that an individual could be held liable for a fraudulent misrepresentation made by that person to another, even though the representor had no direct interest in the matter at hand, nor was in collusion with the party who had an interest. The tort is based on a false representation made by one person to another, knowingly, whereby damage is caused to the other. (2.(1789) 100 E.R.)
To succeed in deceit, a plaintiff must prove that (1) a false representation or statement was made by the defendant, (2) which was knowingly false, (3) was made with the intention to deceive the plaintiff, and (4) which materially induced the plaintiff to act, resulting in damage.
Additionally, although perhaps redundant and unnecessary, where the friend of a prospective tenant agreed to assist the prospective tenant by providing false information to a landlord, the friend may also be civilly liable for the tort of conspiracy. Of course, if the the tort of deceit is proven, as would be required in proving the tort of conspiracy, then there is likely little, if anything, gained from alleging the tort of conspiracy in addition to alleging the tort of deceit within the litigation as proof of the deceit would be enough to create a civil liability; however, there may be circumstances where including both the tort allegation of deceit as well as the tort allegation of conspiracy are helpful to the litigation.
There are many misunderstandings and common false beliefs among both landlords and tenants regarding the criminality and other unlawfulness involving intentionally made false statements. As referenced above, criminality and tortiousness may occur when false information is used to induce or coerce others to enter into contractual relations, including tenancy agreements.
A source of misperception appears to arise from the inaccurate presumption that if the police fail to investigate and lay a charge then the conduct is therefore legal. Instead, it should be appreciated that the police may have discretion to determine what matters to pursue. Furthermore, it may actually be that where the police improperly choose to refrain from investigating potentially criminal conduct, the police may be acting wrongfully. One need only to remain aware that the police commonly turn an eye to unlawful conduct. As a plain and obvious example, the police routinely ignore speeding drivers until the severity of the speeding is significant whereas a driver exceeding the speed limit by five (5) kilometers per hour is ignored while a driver exceeding the speed limit by fifty (50) kilometers is chased down and charged despite that the driver exceeding the speed limit by five (5) kilometers per hour was, technically, breaking the law. Even more simply put, it should be remembered that getting away with breaking the law fails to mean that the conduct may be interpreted as legal.
Another source of misperception is the inaccurate belief that the Residential Tenancies Act, 2006, is the only law that governs landlord and tenant relationships and that only the Landlord Tenant Board may adjudicate where a dispute arises between a landlord and tenant. This misperception appears to arise from misunderstanding of section 168(2) of the Residential Tenancies Act, 2006, and the lack of attention or understanding of section 17 of the Residential Tenancies Act, 2006 whereas these sections state:
17 Except as otherwise provided in this Act, the common law rules respecting the effect of a serious, substantial or fundamental breach of a material covenant by one party to a contract on the obligation to perform of the other party apply with respect to tenancy agreements.
168(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
Despite the rarity of criminal charges, among other legal action, for false representations made during the tenancy application process, such action remains unlawful. Furthermore, in addition to the potential of criminal charges against a prospective tenant, a friend of a prospective tenant that participates in the misleading of a landlord may also be charged criminally or sued civilly.