RELIEF FROM EVICTION: REFUSING OR DELAYING AN EVICTION

INTERPRETATION GUIDELINE #7

Interpretation Guidelines are intended to assist the parties in understanding the Board’s usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making.  However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case.

Even though a landlord proves their case in an application to evict a tenant, the Board must review and consider the circumstances of each case to determine whether or not the eviction should be refused or delayed.  In some cases, the Board must refuse the eviction. These powers are referred to as “relief from eviction”.

Legislation

Section 83 of the Residential Tenancies Act, 2006 (the “RTA”) states:

(1)  Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a)  refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b)  order that the enforcement of the order of eviction be postponed for a period of time.

(2)  If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).

(3)  Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that:

(a)  the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(b)  the reason for the application being brought is that the tenant has complained to a government authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;

(c)  the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d)  the reason for the application being brought is that the tenant is a member of a tenant’s association or is attempting to organize such an association; or

(e)  the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

General Principles

Section 83 provides relief to tenants where the Member determines that appropriate circumstances so require.  It allows the Board to refuse an eviction in a case which involves a breach of the landlord-tenant relationship.  It gives the Member who hears the case the authority to weigh the unfairness to one party against the unfairness to another party.  Further, it provides mandatory relief from eviction as protection for tenants in certain situations. 

The Board has a general discretion to refuse or delay an eviction under subsection 83(1), after considering all relevant circumstances.  Where a hearing is held on an application to evict a tenant, the Board must review and consider the circumstances to determine whether or not the eviction should be delayed or refused prior to granting an application.  These considerations must be made whether or not the issues are raised by the tenant.  These powers relate to any application to evict a tenant.

If the Member finds that any of clauses (a) to (e) of subsection 83(3) applies, it is mandatory to refuse the eviction.

Discretionary Refusal of an Eviction

The Board must review and consider all the circumstances to determine whether or not to exercise its discretion to refuse an eviction.  For example:

• in a case involving an allegation of tenant “fault” (such as eviction for arrears or illegal act), consider whether the reason is serious enough to justify an eviction,
• in a case not involving any allegation of tenant “fault” (such as eviction for the landlord's own use), consider whether the eviction is for reasons other than those alleged by the landlord,
• in a case involving a landlord’s allegation of interference with reasonable enjoyment, consider whether refusing to evict the tenant would result in applications against the landlord by other tenants for interference with their reasonable enjoyment, or
• consider whether refusing to evict the tenant would result in an unreasonable financial hardship to the landlord.

The words “having regard to all the circumstances” mean that the situation of both the tenant and the landlord must be considered.  Therefore, if the tenant's request presents a possible reason for refusal, the landlord may then explain why the refusal to evict would be unfair to them.  This will usually involve explaining why the reason for the eviction application affects that landlord or other tenants in a serious way; for example, how the rent arrears affect the landlord's financial position or how the safety issue affects the personal safety of other tenants.  The landlord may also raise other serious concerns about the continuation of this tenancy.

The RTA gives little guidance as to when the discretion to refuse should be used.  Clearly, there must be a good reason to refuse the eviction.  Where the Board exercises its discretion to refuse to evict a tenant, the Board may attach conditions to such an order that one or both parties must follow. 

Circumstances Justifying Discretionary Refusal

The tenant's conduct has been an important consideration in many past decisions.  For example:

• If the tenant got far behind in their rent payments, but has recently made extra payments to catch up, and owes relatively little now, the discretion may be exercised in their favour.  (The tenant's conduct will be a more convincing factor if it was voluntary, in that it was done before the landlord gave a notice of termination.  However, each case must be decided on its own, considering all factors.)
• In a case of persistent late payment of rent, the tenant had financial problems when he became unemployed, but for months since he found another job, payment has been right on time.  The eviction may be refused despite the earlier months of late payments, due to the tenant's good conduct.
• Eviction may appear to be unfair if no other accommodation is available to the tenant (e.g., a social housing tenant).  By itself, a case in which the landlord is in a better financial position than the tenant does not justify refusal of the eviction.  A tenant is not excused from paying rent even if the landlord has greater financial resources (e.g., a public agency or large corporate landlord).  Ordinarily, the tenant's lack of resources will be considered as a reason to delay an eviction, not to refuse it.  However, all circumstances must be considered. Other relevant factors may include whether the current reason for eviction has been repeated, the impact this tenant is having on the landlord or other tenants, whether the tenant has taken positive steps to reduce or eliminate the reason for the eviction, and other indications of good faith on the part of either the landlord or the tenant.

Landlord actions or conduct which led to the eviction should also be considered.  For example, if the landlord prevented a tenant from repairing damage done by a guest or child, this would be relevant.  If the landlord has excused many other tenants from a minor breach, an arbitrary eviction of one tenant for the same breach may be refused, depending on all of the other circumstances.

Discretionary Delay of an Eviction

The Board must review and consider the circumstances to determine whether or not to exercise its discretion to delay an eviction.  The RTA provides little guidance as to when the Board should use this discretion.  Clause 83(1)(b) does not specify any factors that might be considered, or what period of time might be appropriate for the delay.

Generally, the Member would take into account the time that it will normally take the landlord to enforce the order through the Court Enforcement Office.

Even if “all of the circumstances” did not justify refusal of the eviction, the Member may look at the same issues of unfairness to each party, and decide whether or not to delay the eviction.

The following are some examples that illustrate situations in which a delay may be considered:

• The tenant asserts that the market conditions in the locality are unusually “tight” and that it will take some time to find suitable accommodation.
• The tenant shows that they are affected by a severe medical condition which makes it difficult to find other accommodation, and there are no persons who can help him or her search for a vacant unit.
• The tenant's family is very large and they require at least five bedroom accommodation, similar to their current unit.  There are very few such units in the local market, and none are in the current advertisements.

Mandatory Refusal of Eviction

Mandatory refusal applies to situations which the RTA provides are serious enough to justify refusal - regardless of any other circumstances.

If a tenant raises circumstances which might fall into subsection 83(3), the Member must decide whether it applies.[1]  Further, once it is found that subsection (3) applies, the Member must refuse the eviction.[2]

Serious Breach of Landlord Obligations

The Board must refuse an eviction if the landlord is in serious breach of the landlord's responsibilities under the RTA or the tenancy agreement.

Many claims are related to the landlord's maintenance obligations.  A health or safety concern due to lack of repair may be serious enough to justify refusal.  Conditions which deprive the tenant of the full use of the premises will usually be serious, particularly if it affects the kitchen, bathroom or sleeping areas.  Members must decide whether other repair problems constitute a “serious breach“ of obligations, considering the landlord's actions to resolve the problems as well.  Other factors such as how long the breach was on-going or the level of risk to the tenants may also be relevant.[3] 

In cases related to the obligation to repair, the tenant's conduct may also be relevant.  For example, if the tenant has never before complained to the landlord about a long-standing repair problem, they may have shown they did not consider it to be serious.  Further, if the landlord was not aware of the problem, the Member may not consider it to be a serious breach of obligation.  Further, the tenant should not have contributed to the problem, such as by obstructing the landlord's repair efforts.

The tenant may raise a breach of another obligation of the landlord under the RTA.  For example, the RTA imposes on landlords the obligation not to illegally enter a unit, nor to harass a tenant.  The Member must decide the issue and, if satisfied that the facts presented show a serious breach, they must refuse the eviction.

If the tenant raises a breach of the tenancy agreement, they must present facts to show that it was a serious breach and that it relates to a significant provision of the agreement.

Even if the breach is not found to be serious and there would be no mandatory refusal, the lack of repair or other breach of obligation may still be considered.  It would be one of the circumstances of unfairness to consider in deciding whether discretionary refusal is appropriate.

Retaliatory Actions by the Landlord

The Member must refuse the eviction if the reason the landlord applied for eviction is described in clause (b) to (e) of subsection 83(3) (these clauses are quoted on page 1).

The tenant would explain what actions they took which they believe caused the landlord to seek the eviction.  However, the tenant has a higher onus.  They must prove that the reason for the application is one of the above motivations[4]  It is difficult to prove another person's state of mind.  The landlord will assert that the reason stated in the application was the reason for the application.

The tenant may try to show from the landlord's conduct that the motivation was retaliatory. For example, the tenant may be able to show that the landlord has evicted other tenants who asserted their rights.  The tenant might also show that the landlord ignored the same issue that is the basis for this eviction, for other tenants.  A pattern of conduct may be considered by the Board, but it may also be explained by the landlord.

Even if the tenant does not establish to the Member's satisfaction that the reason for the application was retaliation and, thus refusal is not mandatory, the facts that supported the tenant's claim could be one of the circumstances considered in deciding whether there should be discretionary refusal of the eviction.

[1]  See Forgie v. Widdicombe Place [2002] O.J. No. 2956 (Div. Ct.)

[2]  See Chin v. Hunt (1986), 17 O.A.C. 267 (Divisional Court)

[3]  Sage v. Corporation of the County of Wellington (April 25, 2005), London Docket No. 1471 (Div. Ct.)

[4]  MacNeil et al. v. 976445 Ontario Ltd. (June 6, 2005), London Docket No. 04-1465 (Div. Ct.)

Released Date:  January 31, 2007