Residential Evictions in Ontario: What Landlords and Tenants Need to Know about Bill 184 and the End of the Eviction Moratorium

Published in MONDAQ Aug 03, 2020

As Ontario begins to re-open with Phase 3, there is a renewed focus on the plight of residential renters who are in arrears. To date, these renters have been shielded from evictions through an evictions moratorium, but the moratorium is about to end. There is uncertainty about what happens next. There is also an additional source of anxiety – Ontario passed Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020  (the “Act”) and there is a lot of differing opinions on the impact this Bill will have on evictions. 

A recent Toronto Foundation report suggested that around 8-13% of residential tenants were in arrears in April and May 2020; this is significantly up from usual 1% rate and all due to COVID-19. In Ontario, that equates to more than 50,000 households, or ballpark 130,000 people.

This article attempts to provide some clarity for landlords and tenants on the current state of the law and provides commentary on the impact of Bill 184 on residential evictions.

Ontario’s Eviction Moratorium Ends

Beginning on August 1, 2020, residential evictions in Ontario will no longer be suspended.[1] Back on March 19, 2020, the Ontario Superior Court issued an Order suspending the eviction of residents from their homes until the end of the calendar month in which the provincial State of Emergency is terminated (the “Eviction Moratorium”).

In addition to the Court’s Order, the Landlord and Tenant Board (the “LTB”) announced the suspension of eviction orders and all hearings related to eviction applications unless the matter relates to an urgent issue such as an illegal act or a serious impairment of safety. This meant that the LTB suspended all in-person hearings until further notice as a result of COVID-19. Notwithstanding the Eviction Moratorium, landlords were still able to serve eviction notices for non-payment of rent and subsequently file an eviction application if the tenant did not remedy the issue.

On July 24, 2020, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 became law. Section 17 of this statute terminates the state of emergency, although many “Emergency Orders” will remain in effect. As a result, starting on August 1, 2020, residential evictions will no longer be suspended.

The LTB is the tribunal responsible for resolving disputes between residential landlords and tenants in Ontario. Despite the incoming end to the Eviction Moratorium in Ontario, the LTB has not indicated whether it will hear eviction applications or issue eviction orders, unless the matter relates to an urgent issue such as an illegal act or a serious impairment of safety. According to the LTB’s website in respect of COVID-19 Updates on LTB Operations,

Until further notice, the LTB is not hearing eviction applications and is not issuing eviction orders unless the matter is urgent because there is a serious and ongoing health or safety issue at the residential complex or a serious illegal act that occurred at the residential complex.

If the LTB were to issue an eviction order, the Court Enforcement Office (Sheriff’s Office) will not enforce it unless the landlord brings an urgent motion to the Ontario Superior Court of Justice seeking permission to enforce the order.[2]

If the LTB is not scheduling any eviction hearings, subject to the urgent exception, then what are the practical implications of the end of the Eviction Moratorium? Theoretically, eviction orders issued by the LTB prior to March 19, 2020, could be enforced on or after August 1, 2020, but there is still uncertainty.

Will landlords get their time before the LTB to evict a non-paying tenant now that the Eviction Moratorium is lifted? With no statement or procedure from the LTB in this respect, it is difficult to assume how it will proceed with eviction hearings, if at all.

Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020

On July 21, 2020, the Act received Royal Assent, which amended, among other things, parts of the Residential Tenancies Act, 2006.[3] The Act has recently received mass public attention and province-wide protests as critics state that the Act would lead to mass evictions in Ontario. On July 29, 2020, Toronto’s City Council also voted in favour of a motion to commence a legal challenge to the Act. Below are three provisions of the Act that have received the most attention.

Ex Parte Evictions

A major criticism of the Act is that landlords would be permitted, without notice to the tenant, to apply to the LTB for an eviction order if the tenant did not comply with the terms of an agreement made between a landlord and tenant for issues in an eviction application (i.e. non-payment of rent).

An application without notice is referred to as an ex parte application. Prior to the enactment of the Act, landlords were permitted to bring an ex parte application to the LTB for an order terminating a tenancy or evicting the tenant if the tenant failed to comply with the terms of a mediated agreement, facilitated by a Dispute Resolution Officer (“DRO”) at the LTB.[4] The Act now provides that a landlord and tenant can also agree to a repayment agreement on their own (i.e. without the assistance of a DRO). Moreover, the Act now allows the landlord to also bring an ex parte application for an eviction order where there was an agreement without the assistance of a DRO.[5]

Some potential issues arising out of these amendments involve power imbalances and sophistication between landlords and tenants in respect of any settlement or agreement between the parties. For example, the tenant may not have fully appreciated the consequences of non-compliance when they entered into a repayment of rent agreement with the landlord. Notwithstanding these concerns, there are existing safeguards to protect the tenant.

Firstly, the ex parte application must include an affidavit from the landlord that specifies the provisions of the repayment agreement that were breached. Lying on an affidavit is perjury, thus a criminal offence. Secondly, the Act does not repeal a tenant’s rights to set aside or stay eviction orders.[6] Upon receiving the eviction order, the tenant can still go to the LTB to set aside the original ex parte order.

Raising New Issues at LTB

Previously, if a tenant is being evicted for arrears at the LTB, the tenant could raise any pertinent issues at the hearing as to why the tenant did not pay the rent.[7] The Act now requires tenants to inform the landlord ahead of time that they are raising the issue or provide the LTB with a satisfactory explanation of why the issue was not raised ahead of time.[8]

The risk with this change is that unsophisticated or uninformed tenants may not raise issues ahead of time, and thus will be shut out of raising legitimate issues at the hearing.

This amendment is still subject to changes to the LTB’s Rules, which have not yet been amended. At a minimum, LTB notices and forms would have to be revised to ensure that all tenants are well informed of the requirement to raise issues within the prescribed timelines.

Forced ADR

 The Act allows the LTB to attempt to mediate any matter through mediation or another dispute resolution process.[9] The criticism is that this attempt can presumably be made without the consent of the parties.

At this time it is unclear what new manner of dispute resolution process the LTB may try and what the potential benefits of a different process may be. Practically speaking, aside from mediation and adjudication, there are not that many other options available to resolve issues in a timely manner. Nevertheless, if a new process is employed, the process must ensure that the procedural rights of landlords and tenants are respected.

If you have any questions about how these changes affect your rights, please contact us.