Friday, 8 March 2013

BEATING THE SLAM DUNK EVICTION!

For the purpose of this blog let me give you a couple of fact scenarios.  The first is a situation of a tenant who is four months in arrears of rent, lost his job, and is unable to pay the rent in full for another month.  The tenant states that he is a bricklayer, is in a slow time at work, but with the spring thaw he will be able to get back to full time work.  The tenant wants to make payments towards the arrears but also needs to be late with the upcoming month's rent--meaning he needs to go further into arrears before digging himself out--that is if his plans work out.

The second scenario is that of a young woman living in a subsidized rental unit.  She has a boyfriend who deals drugs.  Police raid the apartment, find debt lists, scales, baggies, cash, and quantities of drugs about the unit.  They state that the presence of this paraphernalia should be obvious to any occupant of the unit.  The tenant and the boyfriend are arrested for possession with the intent to traffic.

The third scenario is that of a family of 5, mother, dad, and three kids 15, 13, 10 years old.  The 13 year old gets into a fight in the park with the child of another tenant.  That child tells his father.  The father goes to the apartment of the tenant with the 13 year old to speak with the parents.  Only the 13 year is home when the parent knocks.  The 13 year old answers the door, points a gun at the tenant and tells him to go away in less than polite terms.  The parent calls police and a swat team responds.  The SWAT team seizes a replica handgun after searching the unit.

The fourth and final scenario is that of a parent who allows her child to wander around the apartment building.  The child, along with another child from the building, figure out how to open the door to the roof of the 14 story apartment building.  For an unknown reason they think it is fun to throw smallish pebbles from the roof onto cars parked in the parking lot below.  In doing so, they cause significant damage to the vehicles as well as a minor injury to a person who was in the parking lot who was struck by one of the pebbles/rocks skipping off of a vehicle.  The boys are caught by the superintendent red handed and police are called.  No charges are laid because of their age.

The foregoing scenarios are examples of fact situations that play out at the Ontario Landlord and Tenant Board every day.  Each of these scenarios are sufficient on the facts to cause the Board to order a termination of the tenancy and eviction of the tenant.  If a landlord applies to the Landlord and Tenant Board, having filed the requisite Notice of Termination for each of the above scenarios they would normally expect to win their case before the Board.  The question is whether cases such as these can be lost--or put another way, can the tenants described in the above fact scenarios beat these "slam dunk" evictions?

As you may imagine, the reason that I am writing this blog is that there is indeed a basis for maintaining a tenancy in the face of the above scenarios.  The legal authority for the Board Member to refuse to terminate a tenancy (as the ones described above), flows from section 83 of the Residential Tenancies Act.  Section 83 is a discretion section--it allows an adjudicator to consider the entirety of a situation--not just the facts making up the offending conduct--including things like job history, cooperation with police, disciplining a child, disabilities, human rights issues, and general circumstances that one could summarize as being "fairness".  It is important to look at the language of section 83 of the RTA.  There you will see that the adjudicator is forced to ask whether it would be "unfair to refuse the eviction".  In this context, consider the following statements in relation to each of the four above scenarios:

1) Is it unfair to refuse the eviction if the tenant has been forthright with the landlord about his money problems--non-payment because of work problems (i.e. he isn't hiding and forcing the landlord to chase him).  He has proposed a payment plan--that pays all of the rental arrears within 3 months--meaning the landlord gets all of his money.  He is waiting for a significant income tax refund due within 6 weeks. The tenant presents sincerely and there is little doubt that the tenant means to make the payments he details.  Further the tenant agrees to a section 78--meaning he can be evicted for missing any one of the payments set out in his payment plan.  In essence, the tenant can be fully up to date within 3 months, making incremental payments along the way.  Letting him do this means he has stable housing and isn't forced to spend money moving that he can ill afford spend and of course the landlord isn't out of pocket if the plan works.

2) Is it unfair to refuse the eviction of this young woman when you learn, see, and hear at the Hearing that she is not the highest functioning individual.  Her testimony reveals a limited understanding of what was happening and she convincingly describes being surprised by what happened in her unit.  After the arrest and at the first appearance the boyfriend pleaded guilty and the charges against the female tenant were dropped.  She realizes how she was used by her boyfriend and with the help of her mother she has broken off the relationship with the boyfriend and does not allow his friends to visit.  Neighbours confirm that since the night of the police raid everything has been quiet and that the female tenant is seen around the place behaving normally---in fact she has apologized to the neighbours for what happened.  The police officer who testifies at the hearing confirms that in reviewing all of the surveillance (undercover drug buys) that led to the raid that the young woman was never seen selling or using the drugs.

3) Is it unfair to refuse the eviction of this family when you learn that they are a relatively recent immigrants to Canada.  The father works at a restaurant upwards of 80 hours per week, the mother works almost the same number of hours in a convenience store.  The oldest and youngest child are excellent students as demonstrated by their report cards.  The oldest also works part time after school and volunteers at the community centre helping more recent immigrants from his cultural background.  The youngest is a "normal" kid in every sense.  The 13 year old has been a difficult child for the parents.  He suffers from some developmental delays and seems to make poor choices all of the time.  His grades are terrible but the family has gotten him a tutor.  They are following a plan set up by the school psychologist and are compliant with all suggestions made by the "professionals".  The 13 year old has never been in trouble with the law in this way.  He apparently saw the replica handgun at a yard-sale ---in fact it was a lighter.  He bought it for 75 cents and never told his parents about it.  The parents confirm never having seen the gun but if they had seen it they would have confiscated it.  Since the incident they have grounded the child, taken away numerous privileges and have made it very clear to the boy how his behaviour has shamed the family.  Until he proves to them that he can be trusted he now must attend the after school program and isn't allowed to come home alone.  The parents promise that there will be no illegal activity in their unit, they offer an abject apology to the neighbours and assure them that the 13 year old won't be allowed to be home alone.  The parents confirm that if they are forced to move that they likely couldn't afford anything in this neighbourhood and that the kids would have to move schools.  Moving schools would be particularly hard on the 13 year old who is set up to receive supports there.

4)  Is it unfair to refuse the eviction of this mother and her son when it is clear that the other child is the one who convinced the boy that throwing the rocks would be fun?  The boy, when caught, told the superintendent exactly what they were doing without any sort hesitation.  In fact he seemed surprised that he was in trouble.  It turns out they didn't go to the edge of the roof to throw the rocks/pebbles ad in fact they never saw what they were hitting.  It turns out that the boy is easily led and not so bright.  The boy says that he did not know that he wasn't allowed on the roof and that it was the other boy who knew how to giggle the lock to get the door to open.  When asked about the damage to the vehicles he lacked appreciation of the situation and offered to fix the damage himself.  While only nine years old, he did appreciate that he had hurt another tenant in the building and he cried when asked about this by police.  The child's mother has apologized to the injured person and has asked for an opportunity to pay for any damage caused by her son.  She has spoken with her son and has forbidden him from associating with the boy who encouraged him to do this.  The tenant also provided the Board with a letter from the school psychologist confirming this incident as an anomaly that is highly unlikely to be repeated.

DISCUSSION

Whether the context provided in the foregoing numbered paragraphs would cause an adjudicator to "refuse" eviction or not is dependent on the judgment of the adjudicator.  Judgment includes the adjudicator's sense of fairness and what is right in the circumstances.  The adjudicator will be very aware that an order terminating the tenancy will throw each of these families into turmoil.  It will not be lost on the adjudicator that each of these tenants are financially vulnerable and that an eviction would be a profound upheaval.  The adjudicator will ask himself/herself, is there anything that I can Order--short of eviction--that will allow the landlord to have a safe building, where risk is entirely or virtually eliminated and the landlord has a quick tool to evict if it all goes to hell in a hand-basket (i.e. the same kinds of things happen again).

The fact scenarios, as provided in the first instance are "slam dunks".  The Notices of Termination read like the scenarios as at the beginning of this blog.  To counter-act the slam dung, the lawyer's job in defending the tenant is to lead evidence of the circumstances.  Then the lawyer will lead evidence, through witnesses and through the testimony of the client/tenant that will seek to provide the comfort that the adjudicator needs to not terminate the tenancy.  The lawyer will think about collecting evidence from experts and perhaps ask the client if he/she has offered apologies and payment for losses.  The tenant will be looking for guidance from the lawyer about what to do to maintain the tenancy---a lawyer, in analyzing the powers of the Adjudicator under section 83 and 78, will make suggestions to the tenant that if adopted may encourage the adjudicator to give the tenant another chance.

I can tell you that each of the above scenarios resulted, in real life hearings, in the tenants getting another chance.  None of these tenants were evicted.

The landlords--as well as their representatives--were upset at the outcome of these hearings.  On another day I will write about what the landlord's could have done to counteract the Adjudicator's exercise of discretion under section 83.  Suffice it to say though, that a landlord in pursuing evictions should never "stop" at leading evidence only about the incident.  A landlord needs to be ready to lead evidence about the impact of the adjudicator exercising discretion and not terminating a tenancy.

Michael K. E. Thiele
Lawyer
QTMG LLP
Ottawa, Ontario, Canada


2 comments:

  1. Hi Michael
    I posted a comment or rather question earlier and never heard back from you,it was under the head line Frustrated,about getting a N5 and N7 on the same day about a anonymous letter under another tenants door.Just wondering why i never got a response Thank You

    ReplyDelete
    Replies
    1. Sorry---I get upwards of 125 questions a day now and I simply can't get to them all. I try to vet all of the questions for spam and if I allow it to post then I will answer it. Unfortunately, there are questions I never get to. If I haven't answered your question try posting it again--simply to get it noticed and to the top of the pile. Todays pile stands at 248 questions/comments so far. I deal with most recent and work down through the pile until I have no more time.

      Michael Thiele

      Delete

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.

Search This Blog

Follow by Email

About Michael Thiele

My photo

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.