Friday, 23 November 2012

No eviction in winter in Ontario!

Is it the law that a tenant can not be evicted in the wintertime in Ontario?    There is a well ingrained urban myth that the Landlord and Tenant Act (more precisely the Residential Tenancies Act), prevents a landlord from evicting a person in the winter.  The thought is that it is fairly cruel to make someone homeless in the dead of winter with freezing temperatures.  This belief is so pervasive that notwithstanding clear guidance on the Ontario Landlord and Tenant Board website and the advice of lawyers and paralegals to the contrary people still think there is some kind of legal prohibition to a winter eviction.

The fact is that there is absolutely no bar or prohibition against a winter eviction.  The law allows a landlord to serve any of the available Notices of Termination at all times of the year.  Of course, the Notice of Termination must be valid. 

Will the Ontario Landlord and Tenant Board refuse to evict in the winter?  As you may know, if a tenant refuses to move out after being served with a Notice of Termination, a landlord must apply to the Ontario Landlord and Tenant Board for an order evicting the tenant.  The adjudicator may exercise some discretion to delay or deny eviction under section 83 of the Residential Tenancies Act.  The mere fact that it is "winter time" is not a recognized ground for refusing or delaying eviction.  Of course, if there are other extenuating circumstances that high-light a particular hardship and the fact of it being winter time is relevant to that hardship, then an adjudicator may indeed refuse or delay an eviction taking into account that it is "winter time".

Michael K. E. Thiele
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario

20 comments:

  1. I appreciate all of the information that you have shared. Thank you for the hard work!
    - eviction lawyer cambridge

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  2. Nice Bloh..Thank you for sharing such informative posts..
    eviction notice

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  3. My dads daughter is trying to kick us out after my adopter father died Dad died and the next dad she tells me I have to leave with my horses, how can I stop this as she gave only 3 days for us to be out,, its only cause she is jealous of me I was extreamly close to her dad I worked and lived with for him for 34 years a and his home was my home, what can I do also I have not been Payed for the last five years of his life?

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  4. My friend was told that she is being kicked out of her apartment when she hasn't been making any noise and it's been from the other tenants. What legal rights does she have in this case? Any help would be greatly appreciated.

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    Replies
    1. Hi:

      Your friend should wait to receive the formal Notice of Termination. She can then require the landlord to file an application to the Landlord and Tenant Board and she can fight the eviction at the Board. The landlord has the burden of proof to establish the allegations against her. Your friend may require the landlord to provide all of the evidence in advance and all of the details of the allegations in advance of the hearing so that there are no surprises at the hearing. With that information, your friend can build her defence--including an alibi defences (maybe she was out of town on some of the dates etc.).

      The landlord is not allowed to make your friend move without getting an eviction order from the landlord and tenant board.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  5. If a landlord decides the unit you are living needs a complete reno,can they terminate your tenancy? If so are they required to provide another unit at the same rent?

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    Replies
    1. Hi: If a landlord determines that the rental unit needs a complete renovation and that renovation requires a building permit then the landlord may serve a Notice of Termination in Form N13. That form has a lengthy notice period, compensation may have to be paid to the tenant, and the tenant may have the right to re-occupy the premises at the same rent and on the same terms after the renovations are done. If the tenant suspects that the renovations are an "excuse" to terminate the tenancy the tenant can fight the N13, require a hearing, raise the issues before an adjudicator, and force the landlord to be rather specific about the timeline and plan for completing the renovations. You can use that hearing process to get an order effectively supervising the renovation.

      All that being said, a landlord is not required to provide a temporary unit pending the renovation or a replacement unit at the same rent.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. My landlord is trying to kick my family out, as we are having trouble paying rent. If we have a baby and its is the middle of winter, may that be a liable reason for an adjudicator to delay an eviction? (PLEASE HELP)

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    Replies
    1. Hi: Under section 83 the Landlord and Tenant Board is required to take into consideration all relevant facts that would impact whether a termination of a tenancy should be refused, delayed, or even denied. Winter and having a baby is certainly a relevant factor. However, it is not significant enough to prevent eviction. A typical termination for non-payment of rent in Ontario has the following timing: at the hearing the adjudicator will give the tenant 11 days to pay the rent and void the eviction order. If the rent is not paid within that time the landlord can go and file the order with the sheriff. The sheriff in Ottawa typically gives the tenant another 7 days notice of eviction and posts a Notice to Vacate on the door indicating when the sheriff will return to enforce the eviction. The timing from the sheriff is different in throughout the province, often based on workload. I don't think there is any Court Enforcement office in the province that gives less than 7 days notice unless specifically directed by the Board in which case the notice is usually in the range of 3 days.

      The point is that eviction is not instantaneous. Even after the termination date specified in your notice of termination it will still take a few weeks to get a hearing from the Landlord and Tenant Board.

      The adjudicator has discretion to delay the eviction beyond the timelines set out above. But it is unlikely that there will be much additional delay beyond the timelines above based on solely on inability to pay, having a baby, and it being winter. If you can come up with a payment plan, or have some other way of showing how the rent will be paid the chances are better. If you need a few days simply to move or move into a new place that might be granted. But an extended delay for the reasons you describe is unlikely.

      Good luck to you. Please consider seeing a social worker or a local community legal clinic. There are community resources available and obviously you will need shelter if evicted. There are options in all communities and being homeless is not one of them in Ontario. If you can't find any resources at all please call my office to chat with me and I will find you someone in your community that can assist in finding housing and a place for you until that happens.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. I already have a court order to evacuate tenant after 11 days , i was actually talking to police and the officer told me that although you do have the order , but Sharif are unwilling to execute the orders in winters , and this may result in a longer unpaid occupancy of your property. My tenant , also mocked and taunted me that no matter what , i will not be able to evacuate him in winters .. My Tenant's confidence and a police officer's statement has made me worry a lot .. what course do i have in this situation ?

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  8. How how can someone expedite the process to evict a tenant. the building has been declared unsafe and the tenant refuse to leave despite notices. Visits from police and forms filed with landlord tennent board

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  9. My landlord is selling the house that me and my friends rent out. We just signed a 1 year lease agreement and he is possibly going to kick us out before the 1 year lease is even up. He is also doing this during the winter. Is this at all legal? What should I do?

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    Replies
    1. Hi: In Ontario, if you have a one year lease for your home your landlord is not permitted to terminate your lease and evict you just because he is selling. You have the right to occupy the home for at least the length of your lease subject to you doing things that are contrary to the lease (example: not paying rent, committing illegal acts, impairing safety etc.). Eviction for landlord's own use or for purchasers own use is not possible during the term of a lease. The earliest that you could be evicted for a purchaser's own use is at the end of your lease.

      If you landlord insists that you vacate or takes other steps give a call to the Investigations branch of the Ministry of Housing. They will communicate with your landlord and make it clear what he is and isn't allowed to do. If he continues they can lay charges against him. Aside from that, you can also file a Tenant's Rights application against your landlord through the Ontario Landlord and Tenant Board.

      Hope this helps

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  10. My landlord recently decided after us living here for over 2 years ; that we need to move so that they can move in . I am currently 5 mths pregnant and have 2 kids. I have been given 60 days notice. Meaning I would need to be out January 1st. Is this legal ?

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    Replies
    1. Hi: There is nothing inherently illegal about such a notice. If you are on a month to month tenancy then Ontario law allows the landlord to serve an N12 (Notice of Termination for Landlord's own use). The minimum notice period is 60 days to the end of term. While it may be legal to serve such a notice there are a number of defences. You don't say whether the notice is in good faith or not. Even presuming that the notice is in good faith, the Landlord and Tenant Board has discretion with respect to the termination date--this means the Board can make the date longer if it finds that the Notice is otherwise proper. Take a look around this blog, I have other articles that talk about the N12 notice and the considerations that apply.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  11. Hello Michael Thiele. I am a grade 9 student, and am currently working on a project regarding these issues between landlords and tenants, and your help would be appreciated. My group and I would like to get in contact with you through email so we can talk. We only need to know about the most important laws a tenant should know, and the most common illegal acts among these types of situations. We are working to help people who are vulnerable to being illegally evicted because they do not know their rights. Could you leave us an email to contact you, or anything of that sort? Thank you your help will be appreciated.

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    Replies
    1. Hi: I would be more than pleased to be helpful to you and your group. You may email me at my office email ( mthiele@pqtlaw.com ).

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  12. I was given a onder to pay on the 1st of every month based on "consistent late payments". I defaulted only once, last month on Feb 1. My bank said they would allow me have overdraft protection, but then did not allow the payment to go through. The 1st fell on the 1st. My bank did not reflect the payment coming out until the 2nd. But by the Saturday (4th) the payment defaulted. I let my property management know and begged her not to penalize me, but she went and filed the order anyway. I filed a request to stay the order and served the Sheriffs office and now have a date for a hearing. I am not in default and March has been paid on the 1st. What are the chances that a adjudicator will cancel the stay and proceed with the eviction order?

    Tired and weary,
    JJ

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    Replies
    1. Hi Jennifer:

      I feel really bad for you as the "tired and weary" is coming through loud and clear in your comment to me. Hopefully this answer can help you get a better perspective on this process.

      I presume the following. At some point the landlord served you with an N8 form for persistent late payment of rent. That went to a hearing and you either agreed through mediation or it was imposed by an order that you would not be evicted if you paid the rent in full and on time for a 12 months period. This is a fairly typical order for this type of application.

      The Order will have provided that if you breach the landlord may file an application under section 78 for eviction. This application is done without notice to you and you simply get an eviction order from the Board in the mail and possibly a Notice to Vacate on the door from the sheriff.

      Your next step then is to file a Motion to Set Aside. You must do this within 10 days of the date of the order. It sounds like you have already done this if you have a hearing date scheduled and a stay is in place.

      So what is likely to happen at the hearing?

      Good things can happen and I can assure you that I have won a great many second and third chances for tenants at the type of hearing you have just scheduled. The reason is that "discretion" and "fairness" are still a part of the system and decision making process. It is not just about whether the breach happened or not.

      The power for the adjudicator to give you a further chance is contained in section 78(11)(b). That section provides that the Board is to consider and be satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6);

      As you can see from the wording of this section--the adjudicator has the power to give you another chance--you just need to convince him or her that you should be given that chance. If you don't convince the adjudicator of that, well then there are sections that allow the adjudicator to dismiss your motion, lift the stay, and allow the sheriff to come and evict.

      So, how do you convince the adjudicator? Be creative and think about your best arguments. I can suggest the following--but because I don't know all of your facts there may be more things you could argue or evidence you could present. So, don't rely on just what I say here---use it as a guideline.

      To think about what to present consider the whole point of the N8 order that was made. The Landlord clearly wanted his rent on time. The Board agreed that rent should be paid on time. It is critical for you to recognize this and accept that this is the goal. You should therefore gather proof that you did every reasonable thing to put into place a system that would allow the rent to be paid on time. You did this by arranging an overdraft protection with your bank. This is a reasonable and responsible thing to do to ensure that your rent would be paid. You need to collect evidence from the bank--copies of the forms that you filled out to arrange over-draft protection from the bank. You need to demonstrate that it should have been in place and available for the February rent. Then you need to show that the bank messed up by not allowing the charge to clear--or you need to show that the bank misled you--or show whatever it is that reflects the over-draft screw up. You can prove this by--especially if it is the banks fault--by asking the bank manager to write you a letter confirming what happened. Demonstrate that you did every reasonable thing to arrange for your rent to be paid on time.

      You can also show the hardship of eviction--and demonstrate if you can, that you have taken even further or additional steps to ensure that rent will be paid on time in the future. If you're in a financial spot to pay a month ahead (I know a very tough proposition), you could do that even. You need to be showing the steps you are taking to solve this issue of persistent late payment of rent.

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    2. If you are successful, and the landlord has gone to the sheriff, then you might hear that the landlord wants you to pay the sheriff fee (around $300). If the facts really are that the bank screwed up and it is very clear and this is what you told the landlord when you begged them not to seek an eviction order based on the Feb 1 late payment then I don't think you should be responsible for the sheriff fee. You have a strong argument as I don't think the landlord was reasonable in seeking your eviction. The landlord, if they doubted you, could always have asked for proof that your bank screwed up before incurring the significant eviction expense.

      I hope that help somewhat, good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.