This week’s blog post is written by Lyann Ordenes, 2nd year law student, and NSRLP Research Assistant.
As COVID-19 restrictions begin to be rolled back, one worrisome consequence is the sudden rise in tenants faced with “urgent” eviction orders during the pandemic which were initially placed on hold during the “Eviction Moratorium” in Ontario and other parts of Canada (including Nova Scotia, BC and Alberta).
As we explain on our page “Urgent” Court Cases and Covid-19”, the Eviction Moratorium in Ontario remains in place. As a result of the July 6th amendment to Chief Justice Morawetz’s Court Order suspending residential evictions, the enforcement of suspended eviction orders will resume on August 1st unless the provincial government extends the State of Emergency past July 24th.
While the Eviction Moratorium remains in effect, tenants cannot be removed from their homes as a result of a prior eviction order from the Ontario Landlord and Tenant Board (LTB), unless the landlord applies to the court and obtains an “urgent” eviction order. There must be a valid eviction order from the LTB before a landlord can apply to a court to proceed with an eviction (Rabczak v. Dunford, 2020 ONSC 3031).
Currently, the LTB is not holding any hearings related to evictions unless they are deemed to be “urgent” as a result of “a serious and ongoing health or safety issue” at the residential complex, or an illegal act that has occurred at the residential complex.
In a recently decided case at the Ontario Superior Court, Nuemann v Anderson, 2020 ONSC 3518, more clarity is provided on how the courts have been qualifying the Eviction Moratorium in cases that are deemed “urgent”.
What happened in Nuemann v Anderson?
Prior to the Eviction Moratorium, the landlord in this case obtained an eviction order from the LTB for rental arrears (past unpaid rent). The LTB terminated the tenancy and ordered the tenant to vacate the unit.
The tenant appealed the eviction order to the Divisional Court. On March 18, 2020 the tenant’s appeal was dismissed, and the Court directed that the eviction order be enforced – but the very next day the Eviction Moratorium came into effect.
Prior to the decision, the tenant had sought out alternative living arrangements and signed a lease agreement with a new landlord. However, the new landlord informed the tenant that the unit would not be available because the current resident could not be evicted while the Eviction Moratorium was in place.
Why was an exception made here?
The landlord sought permission to proceed with the eviction, despite the province-wide suspension, due to the case’s “urgency”. The court decided in the landlord’s favor and found a basis to enforce the eviction despite the Eviction Moratorium. Notably, the landlord was a frontline health care worker who informed the Court that they needed the accommodation in order to self-isolate.
What did the judge say about the Eviction Moratorium?
The purpose of the province-wide suspension on evictions is to prevent the spread of COVID-19 during the pandemic. Accordingly, judges must balance this societal interest against possible financial difficulties for landlords (i.e. non-payment of rent). The landlord’s financial hardship by itself is not sufficient to merit an order to proceed with an eviction during the suspension. The onus is on the landlord to show that there are urgent and compelling circumstances that justify overriding the potential risk of spreading COVID-19.
Essentially, the judge enforced the eviction because they determined that the landlord’s job as a health care worker meant that they were at a greater risk of transmitting the virus, and were in greater need than the tenant was of the accommodation.
What does this mean for tenants facing eviction orders in Ontario?
In this case, the tenant was evicted due to the unique fact that the landlord is a frontline worker in a hospital, had nowhere else to stay, and required the accommodations in order to self-isolate. The judge found it significant that the tenant did not argue that they would be unable to find alternative accommodations, nor that they faced financial hardship. Tenants should keep in mind that even though it is the landlord’s responsibility to justify eviction enforcement during the pandemic, tenants should still notify the Court of any health or safety concerns that would arise should they be evicted. The societal objectives advanced by the Eviction Moratorium mean that the landlord’s health and safety must be balanced with the tenant’s.
How effectively does the Ontario Eviction Moratorium protect tenants?
This past month has seen an increase in the number of court cases enforcing eviction orders during the pandemic (Wilkinson v. Iyamu, 2020 ONSC 389, Desgranges v. McCluskey, 2020 ONSC 3754, Diaz v. Kubinec, 2020 ONSC 3706, and Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244). In these cases, which were are all examples of “urgent” evictions, two principles have emerged:
- When a tenant appeals an LTB decision, the court is not deciding on whether the eviction was fair (in other words, this is not an appeal of the eviction order), but rather whether the eviction is urgent enough to merit enforcement despite the Moratorium; and
- The eviction will not be considered urgent unless a serious illegal act is committed or there is an ongoing health or safety issue that puts other tenants at risk.
The climate is uncertain regarding the future of the Eviction Moratorium, considering the fact that all “urgent” eviction cases that have been heard by the Ontario Superior Court have been decided in the landlord’s favour. Taking note of this, it appears that the protections that have been put in place are gradually being relaxed, and the threshold for urgent and compelling circumstances is lowering.
What you should know about Bill 184
The next question is what will happen to tenants who owe arrears of rent as pandemic restrictions are raised? There are concerns that this could result in an epidemic of homelessness across Canada.
Ontario’s recently introduced “Protecting Tenants and Strengthening Community Housing Act” – otherwise known as Bill 184 – is criticized for favouring landlords and failing to adequately protect tenants in the aftermath of the pandemic.
One provision in the Bill gives significant power to landlords to manage debt collection enforcement in the aftermath of the pandemic. Whereas the LTB has long overseen the mediation of agreements for debt repayment between landlords and tenants, the Bill proposes private agreements between landlords and tenants to settle a dispute over rent arrears. Tenants who owe rent will be faced with two options: agreeing to a payment plan proposed by the landlord (which they will feel pressure to accept), or eviction. Eviction under these circumstances could be appealed to the LTB, but it seems likely that many tenants will either simply move on, or agree to payment plans to keep their homes, and then default.
Ontario tenants should stay tuned to both the progress of Bill 184, and the case law regarding “urgent” evictions. Should the State of Emergency not be extended by the provincial government, it is critical that tenants be aware and prepare for the impending enforcement of suspended eviction orders.