Province says changes meant to encourage negotiated settlements between landlords and tenants
Newly passed changes to landlord/tenant law will permit ex parte eviction orders, allowing landlords to obtain an eviction order without appearing before the Landlord and Tenant Board.
With Bill 184, the Protecting Tenants and Strengthening Community Housing Act, when a tenant is behind on rent, they can now enter into an enforceable repayment agreement with their landlord without oversight from an LTB adjudicator, says Caryma Sa’d, a Toronto-based lawyer who practises criminal, landlord/tenant and cannabis law. If the tenant fails to meet the repayment agreement’s terms, they can be subject to an ex parte eviction, or eviction without a hearing, says Sa’d, who acts for both landlords and tenants.
“Major, major, major change compared to the past, where in order to be evicted, there has to be some sort of attendance at the tribunal,” she says.
Bill 184 has sparked protests from housing advocates who say the legislation will lead to mass evictions. Throughout July, activists have staged rallies at Queen’s Park, the home of Mayor John Tory, as well as the Landlord and Tenant Board office in Ottawa.
The Provincial Government said the Act encourages negotiated settlements by allowing landlords and tenants to make an agreement on outstanding rent, without needing to appear before the LTB.
Harry Fine is a paralegal who works for both landlords and tenants and was a former adjudicator at the LTB, from 2001 to 2005. In a blog Fine wrote on the Act, he details the process for an ex parte eviction. The landlord must first serve the tenant a Form N4 Notice to End a Tenancy Early for Non-payment of Rent, file a Form L1 Application to Evict a Tenant for Non-payment of Rent with the LTB, fill out another LTB form, which becomes the repayment agreement, with the tenant and then wait to receive the consent order from the board on that agreement. If the tenant breaches the agreement, the landlord can then file an L4 application for eviction and does not have to serve notice to the tenant, nor have a hearing with the LTB. The tenant has 10 days to file a set aside motion, to appear before the LTB to address the breach. The tenant can also file a request to review the eviction order until 30 days post-eviction order.
“It is a change that may result in some evictions. But not every eviction is an unfair eviction and most of them for rent are warranted. And tenants have had their way with landlords since 2007 [with the passage of the Residential Tenancies Act]. And so there's some small return to balance,” Fine told Law Times.
Sa’d notes that the idea of an ex parte eviction order is not new, but previously the parties would have already attended the LTB to deal with the initial non-payment of rent. She adds that the legislation also shifts the onus to the tenant to prove why they did not uphold the agreement, while at a typical non-payment of rent hearing, the landlord has the onus to prove rent was not paid, to which the board then applies an “equity reasoning” exploring whether there are circumstances that may justify delaying or refusing the eviction.
A problem with the repayment agreements lacking LTB oversight is that unsavvy tenants may have been bullied into signing an agreement they did not fully understand, or may have language comprehension difficulties, says Sa’d.
Natalia Czechowski, a lawyer for Mississauga Community Legal Services, says appearing before the LTB gives tenants the benefits of safeguards such as mediators, tenant duty counsel and the board members themselves.
“Tenants who are unaware of the changes may unknowingly enter into unrealistic agreements out of confusion, desperation or fear and landlords will be able to bypass the hearing process completely. This will inevitably lead to an increased risk of groundless evictions,” says Czechowski.
“Bill 184 further tilts the scales of the power imbalance already present in the landlord and tenant relationship in favour of the landlord by removing an opportunity for tenants to access much-needed assistance and protection at the Board.”