Thursday, 9 April 2020

CAN WE WALK THROUGH THE PARK? (COVID QUESTION)

Bruce Pit Dog Park, Ottawa, ON March 2020
Temporarily Closed under Regulations
An odd title for a blog post dealing with residential landlord and tenant questions in Ontario.  However, it comes up because Landlords are asking (because their tenants are asking), whether they can go for a walk, through the park, down the street, etc..   There are a few "scare" stories showing up in the news and in social media about tickets being handed out for seemingly innocuous activity (like "walking outside").  There is the story of the father who found a strip of land, with nobody on it, who allowed his autistic son to run and kick a ball, who got a large ticket from an apparently arrogant by-law officer.  Further stories of tickets and fines (exceeding $2000) being handed out to parents walking through a park and doing nothing but that (except there were others playing soccer).   The $2000 fine appears to have been a knee jerk reaction to even daring to object to being stopped and identification being demanded. Some, according to the stories, get tackled by officers for objecting.  Anyway, the stories are concerning as the vast majority of people want to simply comply with the law and fulfill the objectives of these restrictions.  That seems fair to me.

The problem is that the news stories and reporters writing them are unclear as to what is permitted under the law.  Perhaps a reasons is that the law is changing frequently and the COVID related restrictions are made "law" through short term legal documents called "Regulations".  The Regulations appear to be made to be valid for about 2 weeks and then they contain a clause causing them to expire unless extended.  And yes, there are Regulations being made that extend Regulations that have otherwise expired.  

So how do you know what you can legally do and what you can't?  The news media isn't helping as there are no unequivocal answers in the articles and the focus is more on the sensational aspects of the people being ticketed.  At most, reporters are giving you single line quotes from one official or another--but nothing clear and unequivocal.  This is particularly concerning to the dog walkers, exercise seekers, and others who only want to get some air without getting ticketed for doing so.  Tickets for "walking" has happened here in Ottawa and I imagine elsewhere around the Province. 

To get some solid answers I've searched for the published "law"and am a bit surprised to find that the usual online legal services (including canlii.org) are not current and that the sites themselves don't indicate the extent of the lag between actual current law and what is on the website.   The solution to this, I think, is to bypass the traditional online services and instead to use the Ontario Laws website.   If you are using this website, you will want to navigate to this LAW which is the Emergency Managment and Civil Protection Act.

Once you navigate to this statute, you will want to look at the tab that says Regulations under this Act.  There you will find (at the time of this writing) 25 different regulations impacting all manner of activity in the Province.  The Regulation that the dog walkers and exercise seeking tenants will be interested in is the one entitled EMERGENCY ORDER UNDER SUBSECTION 7.0.2 (4) OF THE ACT - CLOSURE OF OUTDOOR RECREATIONAL AMENITIES.

If you read this regulation (or any of the others), you're going to read "law" that reads like it was written in a very hurried way.  Clarity is lacking, there are clear "holes", and you could say that in some respects the Regulation is exceedingly vague. This is rather problematic given the massive fines being handed out and the clear restriction on otherwise lawful (and even laudable) activity.  That being said, we all know the "purpose" and perhaps the regulations will be interpreted purposely and not strictly by any Court.  That I don't know.

In any event, there are clear instructions and clear parts of the regulations.  On reading this regulation (Closure of Outdoor Recreational Amenities) it seems to me that many of the ticket stories reported in the paper are going to collapse when a Judge does hear the cases.

WHAT IS THE ANSWER?

If only it were that simple.  However, I think this sentence from the regulation is very useful:

(4) For greater certainty, nothing in this Order precludes individuals from walking through or using portions of park and recreational areas that are not otherwise closed and that do not contain an outdoor recreational amenity described in subsection (2). 

Based on this regulation, it seems clear to me that going for a walk is still legal.  Walking through a park is still "legal" in accordance with this regulation, if the park is not "closed" (one would expect a sign if it is closed).  I think the "walk" is legal if the walk isn't in that part of the park where there is a recreational amenity.  This means, I think, that you can walk through a park with your child, dog, spouse, etc., but you can't walk or loiter around or walk near to a recreational amenity.  The definition of recreation amenity is provided (these include, monkey bars, fitness equipment, sports fields, picnic areas, benches).  The logic I think is that you stay away from parts of a park that could invite loitering, playing, sitting, congregating--whether you actually are or not.  You can't expect a bylaw officer or police officer to stand there "watching" the recreational amenities and urging people to move on---hence just stay away from them.

Otherwise though, a walk in the park seems fine and it seems to be specifically authorized in the section set out above.  The trick now will be to monitor this regulation to see if it changes and whether it is extended or narrowed.  In theory, people could be confined to their homes so that is a possibility and worth checking for at the links provided above.

Michael K. E. Thiele
www.ottawalawyers.com


Thursday, 2 April 2020

Landlord and Tenant Board Emergency Process (COVID RELATED)


Steps to be taken in case of emergency issues (HEALTH AND SAFETY)

The Ontario Landlord and Tenant Board has issued a directive and created a motions process to allow the scheduling of eviction proceedings where there are serious issues arising in the context of "health and safety".

You can find the forms to ask for an urgent hearing on the LTB website, they are reproduced below.  Please note the exceptional nature of the motion and how the burden to prove the need for an urgent hearing is very very high.  The instructions form specifies the criteria.

One should also make note that the hearing process at the LTB will not get you an enforceable eviction Order (even if fully successful).  If you do get an Order terminating and evicting a tenant that Order is effectively unenforceable until you bring a motion/application to a Superior Court Judge as the enforcement process is through the Court Enforcement Office.  Whether that motion will result in immediate enforcement or not is not entirely clear to me at the moment.  Some of the Divisional Court decisions in recent days seem to suggest that the enforceability will only arise when the Sheriff starts enforcing again.  That being said, I wonder if given the Health and Safety nature of the Orders that the Court might not order/request the Sheriff to enforce the order notwithstanding the standstill on evictions (and then whether the sheriff would act with such a direction is another question).






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