The outcome of an eviction order will result in serious consequences for tenants. The tenant will lose the right to occupy the rental unit. Sometimes, the tenant will also have to pay costs to the landlord. Therefore, the Residential Tenancies Act, 2006 (RTA) provides special rules when dealing with eviction applications.
One of the rules (subsection 81(1)) grants the LTB power to refuse or delay an eviction on a discretion. The other rules (subsection 81(3)) require that the LTB must refuse an eviction under certain circumstances.
If you are a landlord and wish to apply for eviction, you shall ensure that not only your grounds for eviction are legitimate but also the eviction is justified. On the other hand, if you are a tenant, you shall respond to the application, ensure your attendance of all LTB hearings and mediations, and present your arguments.
Discretionary refusal and delay
Generally, the LTB has a discretionary power to refuse or delay an eviction from the time when the application of eviction is received, provided that the LTB has considered all circumstances around the application.
If a hearing has been completed, the LTB must determine, after having considered all circumstances around the application, whether or not it will exercise the discretionary power. In other words, if the LTB does not carry on this step of determination, the LTB shall not grant eviction.
If the LTB opts to exercise its discretionary power, the refusal or delay has to be justified. Discretionary refusal or delay is highly circumstantial and usually is decided on a case-by-case basis. When deciding whether the refusal or delay is justified, the tenant’s conduct plays an important factor. For example, a tenant has been late in rent payment due to his or her financial difficulties. If the tenant tries to catch up with the arrears by gradually adding up the payment, the LTB might refuse eviction, or delay it if it is more appropriate. On the other hand, if the refusal of eviction will cause the landlord’s financial hardship, the eviction will more likely to be allowed.
Mandatory refusal means the LTB must refuse the application of eviction when certain circumstances occur. Those circumstances are usually serious.
Section 83(3) of the RTA provides the following circumstances that will justify refusal:
- the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
- the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
- the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
- the reason for the application being brought is that the tenant is a member of a tenants association or is attempting to organize such an association; or
- 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.
Serious breach of the landlord’s responsibilities
This is the most common reason for mandatory refusal. Under the RTA, the landlord has numerous responsibilities to the rental unit and the tenant. Some of the responsibilities include:
- Maintenance and repair,
- No illegal entry,
- No interference of reasonable enjoyment,
- No harassment
If the landlord is found in serious breach of any responsibilities, the LTB must refuse the eviction, even the landlord has a legitimate ground to evict the tenant. However, what is a serious breach?
The determination of serious breach is also highly circumstantial. Case law¹ has provided that a health or safety concern as a result of breach and the period of the breach may contribute to seriousness. In other cases, the LTB may also consider the landlord’s intention when determining the seriousness.
The information covered in the post is critical for the landlord and tenant who are involved in an eviction application. For the landlord, you want to evict your tenant successfully. Therefore, you need to ensure that none of the conditions discussed above apply to you. If you are a tenant, and you do not want to lose your rental unit, you have an opportunity to argue your case if you apply the above circumstances.
1. Sage v. Corporation of the County of Wellington (April 25, 2005), London Docket No. 1471 (Div. Ct.)