This week’s blog is written by Lyann Ordenes, second year law student and NSRLP research assistant.
In our July blog post, “Navigating the Ontario Eviction Moratorium During the COVID-19 Pandemic,” we took a look at how the courts are applying the Ontario Eviction Moratorium. This Moratorium is no longer in place. In that earlier blog, we echoed concerns expressed by tenant advocates about Bill 184, particularly the changes regarding the collection of rent arrears. Now that Bill 184 is law, the Residential Tenancies Act, or RTA, of 2006, has been amended to reflect the proposed changes. Accordingly, tenants should be aware that there is an important change in the law (Bill 184) in relation to eviction proceedings for unpaid rent, or “rental arrears”.
Please note: even though Bill 184 went into effect July 23rd, 2020, there are portions of the Bill that are not yet in force. Provisions that are not yet in effect are not law, and therefore not currently of concern. To avoid confusion, we encourage you to refer to the updated RTA on CanLII’s website. CanLII has a helpful feature where the portions of the Bill 184 changes that are not yet in effect are “greyed out”. For example, under section 57 (3) of the RTA, CanLII has given certain text a grey highlight, where they explain that a limitation period under Bill 184 is not in effect yet.
How Bill 184 affects rent repayment agreements
Tenants who cannot pay their rent, or owe their landlord rent from previous months, should be aware of the way their rights are affected by a rental repayment agreement, or RRA.
RRAs set out a timeline for the tenant to pay back the rent owed. Both tenants and landlords are able to propose RRAs (see below for some helpful RRA templates). A tenant is never forced to sign such an agreement, especially if they are not sure that they can meet their obligations under the agreement (in other words, pay on time).
Tenants must identify which stage they are at in the eviction proceeding in order to determine the legal effects of an RRA with their landlord. The possible stages of an eviction proceeding are:
1) Before the landlord has given you an N4: Notice to End your Tenancy Early for Non-payment of rent. In other words, you have not been given any legal notice yet by your landlord.
2) You have received an N4 Notice (above), but your landlord has not filed an L1: Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenant Owes.
3) After the landlord has filed an L1 Application (above).
Look at the top of any legal notice you are given by your landlord to figure out what the notice is, and which stage you are at.
For tenants who are at stage 1 or 2, any RRA signed is unaffected by the changes in Bill 184. Tenants who signed an RRA at stage 1 or 2 will still be entitled to a hearing at the Landlord and Tenant Board (LTB). However, we caution tenants at stage 1 or 2 to be careful about signing an N-9 or N-11 form if their landlord provides one, as they both require that the tenant move out before a hearing.
Bill 184 affects tenants whose landlord has served them with an application to evict (L1)
Due to the changes in Bill 184, a landlord and tenant at stage 3 are able to enter into an RRA privately, without mediation at the LTB. This agreement does not require approval from the LTB, nor does it require oversight from an LTB-appointed mediator. The onus is on the tenant to understand and comply with the terms of an RRA they choose to sign. Tenants should read the terms of an RRA, which set out what will happen if they fail to meet any of their obligations under the agreement (for example, late payment of rent), very carefully.
Specifically, tenants should be on the lookout for a term in an RRA that allows for the landlord to make an application under section 78 (1) of the Residential Tenancy Act. If such a term is included in the RRA, it allows the landlord to evict the tenant without a hearing and without notice to the tenant. This means that if the tenant misses a payment, even by one day, the landlord can get an eviction order from Landlord and Tenant Board without either a hearing or notice – in effect, automatically.
Other resources for tenants
We recommend that tenants should seek advice from a local community legal clinic or Tenant Duty Counsel in order to ensure that they understand the terms and consequences of an RRA.
Tenants should also be aware that using the Landlord and Tenant Board’s own special form for an RRA is not mandatory. Steps to Justice has broken this form down here. As well, Steps to Justice has made available a form of their own that can also be used to create an RRA.
We encourage tenants to stay up-to-date with the changes to the RTA, since certain Bill 184 provisions are not yet in effect. In the meantime, tenants should generally exercise caution when signing any agreement, and make sure they have read carefully and understand the terms that they agree to.
Finally, given the complexity of eviction proceedings and the legal effects of rental repayment agreements, we definitely encourage tenants to seek assistance (see above) before signing an RRA, wherever possible. At the NSRLP, we had a hard time clarifying the legal effects of the Bill 184 changes to make sure we set them out clearly in this blog – and we have lots of legal training among us!