You may have heard that there are amendments coming to the Residential Tenancies Act and that these amendments are making significant changes to important parts of the RTA. The bill that does this is Bill 184 and it passed first reading on March 12, 2020. The proposed legislation can be reviewed (not reproduced below) though the final form remains unknown.
What I personally like is the explanation of the intended changes and a bit of discussion of the reasons for the change even if just implied from the language. Below is schedule 4 from Bill 184. It provides an outline of the changes that are coming (presuming the Bill becomes law).
Many will recognize that the jurisdiction of the LTB is about to be expanded to allow for post tenancy and post "vacating" applications to be brought to the LTB by landlords against former tenants. This is, in my view, an unfortunate change for many reasons. Firstly, the nature of post tenancy claims by landlords tend to involve complicated questions of damage, repair of damage, betterment, replacement value and lease breach losses. The work required to prove these claims is not insignificant. Further, these kinds of claims are typically for significant sums of money (often approaching the jurisdictional cap) and as such the impact of the case, I think, deserves more than the rather relaxed evidence rules of the LTB and the relaxed procedural rules of the LTB. In my view, the Small Claims Court rules and the reliance on formal rules of evidence (comparatively) provide greater protection to tenants against inflated claims. On the landlord side of the equation, with the work required to prove the claim, at least at the Small Claims Court you could recover legal costs for the effort involved. Nothing here seems to contemplate legal costs being awarded to the winner at the LTB.
Anyway, lots of changes are coming, and it is interesting (I think) to see legislative changes that appear to be focused on overturning Appellate authority. I wonder if the pre-Turnbull's Grove clarity is finally returning?
SCHEDULE 4
RESIDENTIAL TENANCIES ACT, 2006
The Schedule amends the Residential Tenancies Act, 2006. The amendments include the following:
New exemption from Act
Under new section 5.2 of the Act, a rental unit that is a site on which a land lease home is located is exempt from the Act if the unit is owned by an employer and is provided to an employee in connection with their employment.
Compensation for tenant
Under new section 49.1, a landlord who gives a notice of termination of the tenancy to a tenant on behalf of a purchaser under section 49 is required to compensate the tenant in an amount equal to one month’s rent or to offer the tenant another rental unit acceptable to the tenant.
Currently, under section 52 and subsections 54 (1) and (2), a landlord is required to compensate a tenant if the landlord gives a notice of termination of the tenancy for the purposes of demolition or conversion to non-residential use or for the purpose of repairs or renovations, provided that the residential complex in which the rental unit is located contains at least five residential units. Subsections 52 (2) and 54 (3) and (4) are added to also impose an obligation to compensate the tenant if the residential complex contains fewer than five residential units.
Currently, under section 57, the Board may make various orders if, on application by a former tenant, the Board determines that a landlord has given a notice of termination in bad faith. The section is amended to permit the Board to make an order requiring the landlord to pay a specified sum to the former tenant as general compensation in an amount not exceeding the equivalent of 12 months of the last rent charged to the former tenant.
Applications for order terminating tenancy under s. 69
New section 71.1 sets out requirements a landlord must comply with when filing an application under section 69 for an order terminating a tenancy and evicting a tenant that is based on a notice of termination given under certain sections. Under new subsection 71.1 (1), the affidavit required in respect of an application based on a notice under section 48 (Notice, landlord personally, etc., requires unit) or section 49 (Notice, purchaser personally requires unit) must be filed at the same time as the application. Under new subsection 71.1 (3), the landlord must indicate in the application whether or not the landlord has, within two years prior to filing the application, given any other notice of termination under section 48, 49 or 50 (Notice, demolition, conversion or repairs) and must, with respect to each notice, set out the specified information in the application.
Under new subsections 72 (3) and 73 (2), the Landlord and Tenant Board, in determining the good faith of the landlord or the purchaser in an application under section 69 that is based on a notice of termination given under section 48, 49 or 50, may consider any evidence the Board considers relevant that relates to the landlord’s or purchaser’s previous use of notices of termination under those sections.
Tenant issues in s. 69 application for non-payment of rent
Currently, under subsection 82 (1), at a hearing of an application under section 69 that is based on a notice of termination under section 59 (non-payment of rent), the tenant may raise any issue that could be the subject of an application made by the tenant under the Act. Under section 82, as re-enacted, a tenant may do so if the tenant complies with specified requirements (including giving of advance written notice of intent to raise the issue) or provides an explanation satisfactory to the Board explaining why the requirements could not be met.
Applications by landlord for compensation
Currently, under sections 87 and 89, an application for arrears of rent, for compensation for the use and occupation of a rental unit by an overholding tenant or for compensation for damage to the rental unit may be made only if the tenant is in possession of the unit. Sections 87 and 89 are amended to provide that such applications may be made while the tenant is in possession of the unit or no later than one year after the tenant or former tenant ceased to be in possession of the unit.
Under new section 88.1, a landlord may make an application for compensation for interference with the reasonable enjoyment of the residential complex or with another lawful right, privilege or interest of the landlord and, under new section 88.2, a landlord may make an application for compensation for failure to pay utility costs that a tenant or former tenant was required to pay. Such applications may be made while the tenant is in possession of the unit or no later than one year after the tenant or former tenant ceased to be in possession of the unit.
Section 189.0.1 is added to provide that if, at the time a landlord makes any of the applications described above, the tenant or former tenant is no longer in possession, the landlord must give the tenant or former tenant a copy of the application and a copy of any notice of hearing issued by the Board and must, in specified circumstances, file with the Board a certificate of service on the tenant or former tenant.
Rent increase deemed not void
New section 135.1 deals with increases in rent that would otherwise be void as a result of a landlord’s failure to give at least 90 days’ written notice of the landlord’s intention to increase the rent. Under subsections 135.1 (1) and (2), the increase in rent is deemed not to be void if the tenant has paid the increased rent in respect of each rental period for at least 12 consecutive months, provided the tenant has not, within one year after the date the increase is first charged, made an application in which the validity of the rent increase is in issue.
Mobile home parks and land lease communities
Under new section 165.1, if a landlord of a mobile home park or land lease community charges a tenant under the terms of a written agreement for any prescribed services and facilities, and if the prescribed circumstances apply, the prescribed services and facilities shall not be considered services and facilities that fall within the definition of “rent” that applies for the purposes of the Act. Current section 167 sets out a special rule for above guideline rent increases in mobile home parks and land lease communities relating to capital expenditures for infrastructure work required by a government. Section 167 is amended to provide that the special rule applies regardless of whether the infrastructure work is required by a government. Section 167 is also amended to provide that any determination by the Board of how the increase may be taken must be done in accordance with the prescribed rules.
Mediation or other dispute resolution process
Currently, under subsection 194 (1), the Board may attempt to mediate a settlement of any matter that is the subject of an application or agreed upon by the parties if the parties consent to the mediation. Subsection 194 (1), as re-enacted, provides that the Board may attempt to settle any such matter through mediation or another dispute resolution process if the parties consent to participating in the mediation or other dispute resolution process.
Agreement to settle matter
Subsection 206 (3) is re-enacted and subsection 206 (3.1) is added to allow the Board to include in an order under subsection 206 (1) a provision allowing a landlord to make an application under section 78 if the tenant fails to comply with one or more of the terms specified in the order.
Production order
Under new section 231.1, a provincial judge or a justice of the peace may, if the specified requirements are met, issue a production order to a person, other than a person under investigation for an offence, requiring the person to produce documents, copies of documents or data or prepare a document based on documents or data already in existence and produce it.
Penalties
The maximum fines of $25,000 (in the case of a person other than a corporation) and $100,000 (in the case of a corporation) set out in subsections 238 (1) and (2) are increased to $50,000 and $250,000, respectively.
Transitional provisions and regulation-making powers
Several amendments are made to the regulation-making powers set out in sections 241 and 241.1. In addition to various transitional provisions added to the Act, section 241.3 is added to give the Lieutenant Governor in Council the power to make
Hi Michael!
ReplyDeleteI have a question.
I signed a lease before moving in to my Mississauga home, and on the lease the landlord had a rule written down that guests are only allowed for one night per week.
I have done research and because my basement property has a separate kitchen, washroom and laundry facilities I am led to believe that I am covered under the RTA. The landlord lives upstairs with his family, but we have a separate entrance.
I have two flatmates as the basement has 3 bedrooms. They signed a similar lease to me, and have the same rules.
Even though I am covered under the RTA (I think) I am worried that I may be evicted if I ask for my girlfriend to be able to stay over for 2 nights a week as opposed to one as the original and only lease I signed had a written rule about one night only. Does this make me exempt from the RTA under that regard?
Hi Declan:
DeleteWhether you are covered by the RTA or not requires a look at the circumstances of your rental situation and then looking to the exemptions under the RTA. In the facts you bring up (kitchen and bath) you are referencing one of the most common RTA exemptions--that being section 5(i) required sharing of kitchen and/or bath with owner or owners family. There are other exemptions in the RTA as well. I can't give you a live link in a reply comment so you will need to cut and paste this one:
https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html?autocompleteStr=res&autocompletePos=1#sec5
The above link will take you to an online legal resource (free) and specifically take you to section 5 of the Residential Tenancies Act. Do any of the other exemptions apply?
If not you can be reasonably certain that the RTA applies to your living arrangement. Nothing about what you write makes me doubt the applicability of the RTA. It sounds to me like you are living in a makeshift rooming house where the landlord has rented out each room as a separate tenancy. You likely share the common spaces with the other tenants. It is likely, therefore, that your rental unit is defined as your bedroom and the rest is shared space except for the other bedrooms.
The Residential Tenancies Act certainly applies to rooming houses--it specifically says that it does (see the definition of rental unit in section 1). Hence, you have the usual rights and protections afforded to all tenants in RTA protected tenancies. There is no "second class" tenancy based on the nature of the living arrangement.
Presuming that the RTA does apply to your situation the landlord could object to your girlfriend staying over. The landlord would have to allege (assuming you refused to send your girlfriend away), that having her sleep over either substantially interfered with the reasonable enjoyment of the premises by other tenants or the landlord, OR alternatively, that having your girlfriend stay over constituted an interference with a lawful right interest or privilege of the landlord. Both of these grounds would be in a form N5 (a voidable notice of termination).
If the landlord wanted to rely exclusively on the "rule" about guests I think he will have an impossible time getting an eviction Order. Properly prepared, in my view the guest rule on its face is illegal and hence void. The guest rule is not a "lawful" right and hence an application on that basis would fail.
Somewhat more concerning is the possibility of a substantial interference allegation. In the context of a rooming house you can see how the presence of an extra person might indeed be a substantial interference. I'll guess that you have one bathroom, one shower, on kitchen, and limited space in the common area. Your girlfriends presence may restrict or reduce access to these amenities. Hence the "rule". It is possible, if your girlfriend stays over more than the rule permits that the other tenants may complain and allege that their enjoyment is diminished by the regular presence of your girlfriend. Depending on the specific circumstances I can see that argument working.
All that being said. If you have RTA coverage you will get an opportunity to argue against any attempts to terminate by the landlord. Presumptively you win the application as such Rules are prima facie illegal. The only caveat is the attitude of your roommates and whether they will complain etc..
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael. Great blog. Under the new section 88.1, where "a landlord may make an application for compensation for interference with the reasonable enjoyment of the residential complex or with another lawful right, privilege or interest of the landlord", what examples can you think of that this could be applied? Thanks!
ReplyDeleteHi: Thanks for this question though it requires speculation about a section that is NOT law (yet). Still a fund question.
DeleteThe section you are citing is in the current Bill and I will reproduce it below for anyone reading this (note again this is proposed legislation).
An immediate example that I can think (that this section would be useful for) is when a landlord has such an unruly tenant that it is necessary hire security guards for the building (to protect tenants and the property). Over the years I've seen this numerous times and it has been an unrecoverable cost of doing business. It seems to me that s. 88.1 could be useful in recovering these costs (presuming the tenant is not judgment proof).
Some tenants, by their antics cause the landlord to incur unnecessary costs. Another example is tenants who run the hot water continuously just to deplete it and drive up utility costs. Some just run water to drive up water costs (regardless if it is hot or not). Landlords, in chasing down this issue (initially) spend a lot on plumbers and inspections to try to determine what is happening. Intentional "waste" by some tenants does happen and I think s. 88.1 could be useful for such issues. (note that the idea of making tenants liable for "wasting resources" is not an uncommon feature in traditional residential leases--though I don't think such a clause is replicated in the new Ontario Standard Form lease).
I'm sure there will be many other things. Frankly, I really like this clause as I think it leads to accountability for misbehaviour which is something that is sorely needed. Another example (should have thought of this one right away)--are the costs a landlord incurs when a tenant does not prepare a unit for pest control sprays. These costs are enormous as the appointments need to be repeatedly rescheduled and landlords can end up with wasted pest control charges (no work was done because unit wasn't ready for treatment) of hundreds and sometimes thousands of dollars.
Michael K. E. Thiele
www.ottawalawyers.com
88.1 (1)Alandlord may apply to the Board for an order requiring a tenant or former tenant to pay costs described in subsection (4) if,
(a) while the tenant or former tenant is or was in possession of the rental unit, the conduct of the tenant or former tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant or former tenant is or was such that it substantially interferes or interfered with,
(i) the reasonable enjoyment of the residential complex for all usual purposes by the landlord, or (ii) another lawful right, privilege or interest of the landlord; and 25 26
(b) in the case of a tenant or former tenant no longer in possession of the rental unit, the tenant or former tenant ceased to be in possession on or after the day section 19 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force
Hi Michael,
ReplyDeleteI'm renting a room in a house with 4 other people, and we each have a separate lease with the landlord and a separate bedroom. We all share a living room, kitchen, and 1.5 bathrooms, and this is located in the City of Toronto. I understand that it should be licensed as a rooming-house, and the landlord must display the license to us, but I have never been given the license and I have not found my address on the list of licensed rooming-houses that the City of Toronto publishes. Is this (the rooming-house being unlicensed) sufficient grounds for breaking my lease?
Thanks!
Hi:
DeleteThe short answer is "no". The RTA doesn't recognize the legal problem you describe as a basis for termination of a tenancy. There is no Notice of Termination for a landlord's illegal behaviour under the RTA. In fact, the circumstances you describe are very similar to a case called Beach v. Moffatt 2005 CarswellOnt 1693, [2005] O.J. No. 1722, 138 A.C.W.S. (3d) 1163, 197 O.A.C. 113, 252 D.L.R. (4th) 1, 33 R.P.R. (4th) 193, 75 O.R. (3d) 383. You should be able to find the case on ontariocourts.ca. Unfortunately, I can't get it to pop up in Canlii.org, so it will be a bit of a hunt.
Of course, an illegal rooming house can cause all sorts of concern on the part of other governmental authorities. The City may investigate, may Order the premises shutdown, the Fire Marshall may have concerns about the safety of the building given its use and additional Orders may be made there. There can be a tremendous tension and while the landlord can't terminate the tenancy under the RTA other agencies will try to force the landlord to shut down the particular use of the premises (with the law not giving the landlord a lot of options on how to do that). Presuming such pressure, tenants may face offers of money to leave or threats that amount to coercion, intimidation and harassment (all prohibited under the RTA). Ultimately, a tenant, if forced out would be entitled to claim for damages against the landlord.
The foregoing being said, I am unfamiliar with what the City of Toronto may be providing in its bylaws to deal with illegal rooming houses. My experience here in Ottawa has been that the City, while displeased with landlords, is tuned into the plight of the tenants who often are the real victims and suffer the most if the building is shut down. Illegal rooming houses flourish because many people can't afford other forms of housing. If an illegal rooming house is shut down those tenants are often made homeless. As you are concerned about this it may be worthwhile to inquire with the City what programs and supports they have, if any, for the tenants of an illegal rooming house that is shut down.
Good luck
Michael Thiele
www.ottawalawyers.com