Covid Emergency Over: Evictions Resume

Can the Sheriff evict tenants again in Ontario?

Is the Covid Emergency over?

People are generally aware that since mid March 2020 tenant evictions have been suspended in Ontario.  Any legal evictions that did happen after March 19, 2020, happened as a result of an exceptional circumstance and a Judge of the Superior Court specifically making an exception to the suspension of eviction Orders.  Since March 19, 2020, evictions orders issued by the Ontario Landlord and Tenant Board and any Writs of Possession issued by the Superior Court of Justice have been suspended and unenforceable.

Technically speaking, how were evictions suspended?  

Evictions were suspended as a result of the Attorney General for Ontario (i.e. the government), bringing an application to a Judge of the Superior Court of Justice asking for an Order suspending evictions.  This application was brought without notice to anyone (i.e. landlords, the public, tenants, interested parties), and the Court issued the Order suspending evictions on March 19, 2020.

It is because of this Order dated March 19, 2020, that tenants have not been evicted regardless of whether an eviction Order is in place or not.  Further, the Court Order prevented the enforcement of any eviction  including evictions based on criminality or impaired safety.   Cases involving criminality and serious impaired safety could (and were) brought on an urgent basis to the Ontario Landlord and Tenant Board.  The Board, if convinced on motion that the case was about a serious illegal act or impaired safety, did agree to hear such cases even though the Superior Court ordered that the Board's eviction Orders could not be enforced.  

If the Board issued an "urgent" eviction Order the landlord then (because of this Superior Court of Justice Order dated March 19, 2020), had to bring a motion to the Superior Court asking a Judge to make an exception to the eviction suspension order to allow the eviction of a particular tenant.  If that was granted the Sheriff was then directed to enforce the eviction.   Over the last month (or so) there have been increasing numbers of such "exceptional orders" as landlords did bring cases forward on grounds of criminality and impaired safety.

To be clear, cases involving non-payment of rent, or landlord's own use, or purchaser's own use, or substantial interference with reasonable enjoyment, remained virtually impossible to bring and to enforce.  The eviction moratorium barred evictions based on these grounds.

Amendment of the March 19, 2020 Order

The Order that suspended the evictions was amended on July 6, 2020.  This amendment was done again on an ex parte basis (without notice).  The motion to amend the Order was brought by the Attorney General for Ontario (i.e. the government).   The Order was amended to now read that the suspension of evictions would terminate at the end of whichever month in which the Covid Sate of Emergency was declared over.  A copy of the July 6, 2020 Order is attached at the end of this article.  Take a look at paragraph 2 if you want to see the specific wording.

Is the COVID State of Emergency Over in Ontario?

The short (legal) answer is "yes".  The Ontario Government passed the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020, SO 2020, c17.  This Act was in force on July 27, 2020, (though it was introduced earlier and knowledge of it was known as of July 7, 2020, when Bill 195 was introduced in the legislature.

The part of the Reopening Ontario Act that determines that the Covid State of Emergency is over is section 17.  

Section 17 states:

    17  Unless it has been terminated before this section comes into force, the COVID-19 declared emergency is terminated and Ontario Regulation 50/20 (Declaration of Emergency) is revoked.

Why the suspension of evictions is over

The July 6, 2020, Order of the Superior Court of Justice provides that the suspension of evictions (created by the Order) ends at the end of the month in which the State of Emergency is declared terminated.  The Covid State of Emergency was terminated in July 2020 as per the Reopening Ontario Act (section 17).  

Therefore the suspension of evictions continues until the end of July 2020 (in accordance with the Order) and starting August 4, 2020, evictions may again be enforced in Ontario.  Of course, this is subject to other procedural rights and legal process.  Landlords must still get Orders from the Ontario Landlord and Tenant Board and the procedural aspects of serving Notices of Termination, waiting the required time, filling out an application and filing it, and getting a hearing date, having a hearing, and waiting for an Order must still be followed.  Nothing in the lifting of the suspension of eviction has created a fast track for evictions or over-ridden the application process under the Residential Tenancies Act.

Special Note 

At the time of writing this article, the Advocacy Centre of Tenants Ontario (ACTO) has filed an urgent motion to the Superior Court asking for the amended Order that allows the suspension of evictions to resume to be set aside.  The relief that ACTO is seeking is complicated but we should know very shortly what comes of this motion.

Michael K. E. Thiele

Bill 184: Royal Assent: New Amendments

NEW AMENDMENTS TO THE RESIDENTIAL TENANCIES ACT

Ontario Legislature, By abdallahh

The Residential Tenancies Act has been amended and the Bill doing so is Bill 184.   The legislative history is as follows: 

1st Reading March 12, 2020 

2nd Reading  May 27, 2020

3rd Reading July 21, 2020

Royal Assent  July 21, 2020 

So when do the amendments take effect?  Now?  

Take a look at section 41 (scroll to the end of this article), it appears that the law takes effect on a day to be named by proclamation of the Lieutenant Governor. (i.e. some future date).  ** please note that it appears that parts of the Protecting Tenants and Strengthening Community Housing Act, 2020, is in force immediately and other parts are not in force until they are proclaimed.  Hence, as you will see that the Landlord and Tenant Board is treating some forms as immediately void and needing replacement (i.e. the N12), and other parts of the legislation that do not yet have forms have also not yet been proclaimed.  To figure out the parts in force immediately you have to compare the Act with section 41 (end of this article).

Below is a handy summary of the changes and new requirements arising from this Bill  (kindly provided by the legislature).  

Below the summary is the text of the law which shows the wording of the new sections of the RTA.  As of this morning, Canlii does not yet have the amendments to the RTA up on the site but I imagine they will be there soon (usually in grey until proclaimed in force). 

The amendments of course will be keeping the lawyers busy!  I will be commenting on the amendments in due course.  At present, the summary is probably as useful as anything I can say.  What will really change and be significant is when Regulations are finally made and the LTB updates its Rules--and therefore all of the new forms that are going to be needed to allow all of these changes to be implemented.   It seems pretty clear that the Board's powers are dramatically expanded and the Board will be hearing many more cases and dealing with entirely "new" things that typically were in the small claims court.   As the Regs, Rules, Forms, Guidelines, roll out we will begin to see how this new version of the RTA and the expanded LTB will hope to function. 

Michael K. E. Thiele
www.ottawalawyers.com  



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.

Power of Board re eviction

Section 83 is amended to provide that in determining whether to grant an application to evict a tenant based on arrears in rent arising during the period beginning on March 17, 2020 and ending on the prescribed date, the Board shall consider whether the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant’s arrears.

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.

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 regulations governing transitional matters.

SCHEDULE 4 RESIDENTIAL TENANCIES ACT, 2006

1 The Residential Tenancies Act, 2006 is amended by adding the following section: Other exemption from Act, site for land lease home

5.2 (1) This Act does not apply with respect to a rental unit that is a site on which a land lease home is located, if all of the following requirements are met:

1. Therentalunitisownedbyanemployerandisprovidedtoanemployee,ortoanemployeeandtheemployee’sspouse, in connection with the employee’s employment.
2. Therentalunitissubjecttoatenancyinrespectofwhichatenancyagreementisfirstenteredintoonorafterthedaythe Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent between,
   
   1. the employer, as landlord, and the employee, as tenant, or
   2. the employer, as landlord, and the employee and the employee’s spouse, as joint tenants.

Application of exemption
(2) The exemption under subsection (1) applies with respect to a rental unit until the tenancy is terminated.
Same
(3) Subsection (2) applies with respect to a rental unit even if,

1. (a)  the employee ceases to be employed before the tenancy is terminated; or
2. (b)  the employee dies before the tenancy is terminated, provided the employee’s spouse is a tenant of the rental unit.

2 Subsection 6 (1) of the Act is amended by striking out “48.1, 51” in the portion before clause (a) and substituting “48.1, 49.1, 51”.

3(1) Subsection7(1)oftheActisamendedbystrikingout“48.1,51”intheportionbeforeparagraph1andsubstituting “48.1, 49.1, 51”.

(2) The French version of subsection 7 (5) of the Act is amended by striking out “qui relève”. 4 Section 11 of the Act is amended by adding the following subsections:

Non-application

(3) This section does not apply with respect to a tenancy if,

1. (a)  the tenancy begins on or after the day the Protecting Tenants and Strengthening Community Housing Act ,2020 receives Royal Assent; and
2. (b)  section 12.1 applies with respect to the tenancy agreement entered into in respect of the tenancy.

Transition, subs. (3)

(4) Subsection (3) applies with respect to a tenancy agreement referred to in that subsection even if the agreement was entered into before the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent.

5 The Act is amended by adding the following section: Compensation, notice under s. 49 (1) or (2)

49.1 (1) A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if,

1. (a)  the landlord gives the tenant a notice of termination of the tenancy on behalf of a purchaser under subsection 49 (1) or (2); and
2. (b)  thenoticeofterminationisgivenonorafterthedaytheProtectingTenantsandStrengtheningCommunityHousingAct, 2020 receives Royal Assent.

Obligation under subs. (1)

(2) Despite section 18, the obligation to compensate the tenant under subsection (1) remains an obligation of the landlord who gives the notice of termination of the tenancy on behalf of the purchaser and does not become an obligation of the purchaser.

6  Section 52 of the Act is amended by adding the following subsection:

Same, fewer than five residential units

(2) A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if, 21 22

1. (a)  the tenant receives notice of termination of the tenancy for the purposes of demolition or conversion to non-residential use;
2. (b)  the notice of termination is given on or after the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent;
3. (c)  the residential complex in which the rental unit is located contains fewer than five residential units; and
4. (d)  in the case of a demolition, it was not ordered to be carried out under the authority of any other Act.

7 Section 54 of the Act is amended by adding the following subsections:
Same, fewer than five residential units

(3) A landlord shall compensate a tenant who receives notice of termination of a tenancy under section 50 for the purpose of repairs or renovations in an amount equal to one month’s rent or shall offer the tenant another rental unit acceptable to the tenant if,

1. (a)  the tenant does not give the landlord notice under subsection 53 (2) with respect to the rental unit;
2. (b)  thenoticeofterminationisgivenonorafterthedaytheProtectingTenantsandStrengtheningCommunityHousingAct,
   2020 receives Royal Assent and section 55 does not apply;
3. (c)  the residential complex in which the rental unit is located contains fewer than five residential units; and
4. (d)  the repair or renovation was not ordered to be carried out under the authority of this or any other Act.

Same

(4) A landlord shall compensate a tenant who receives notice of termination of a tenancy under section 50 for the purpose of repairs or renovations in an amount equal to the rent for the lesser of one month and the period the unit is under repair or renovation if,

1. (a)  the tenant gives the landlord notice under subsection 53 (2) with respect to the rental unit;
2. (b)  the notice of termination is given on or after the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent and section 55 does not apply;
3. (c)  the residential complex in which the rental unit is located contains fewer than five residential units; and
4. (d)  the repair or renovation was not ordered to be carried out under the authority of this or any other Act.

8 Section 55.1 of the Act is amended,

1. (a)  by striking out “48.1, 52” and substituting “48.1, 49.1, 52”; and
2. (b)  by striking out “48 or 50” at the end and substituting “48, 49 or 50”.

9 (1) Paragraph 1 of subsection 57 (3) of the Act is repealed and the following substituted:
1. An order that the landlord pay a specified sum to the former tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit.

1. 1.1  An order that the landlord 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. An order under this paragraph may be made regardless of whether the former tenant has incurred any actual expenses or whether an order is made under paragraph 2.
2. 1.2  An order that the landlord pay a specified sum to the former tenant for reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur.

(2) Section 57 of the Act is amended by adding the following subsection:

Transition

(8) This section, as it read immediately before subsection 9 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, continues to apply with respect to an application under subsection (1) that is made before that day and has not been finally determined before that day, even if the hearing of the application is on or after that day.

10 (1) Subsection 57.1 (2) of the Act is amended by striking out “more than one year” and substituting “more than two years”.

(2) Section 57.1 of the Act is amended by adding the following subsections:

Transition, application pending

(2.1) An application that was made under subsection (1) before the day subsection 10 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force and was not finally determined before that day is deemed to comply with subsection (2), as it reads on that day, if the application was made more than one year, but not more than two years, after the former tenant vacated the rental unit.

Transition, previous application dismissed

(2.2) If a previous application made by the former tenant was dismissed before the day subsection 10 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force for failure to comply with subsection (2), as it read before that day, the former tenant may make another application under subsection (1) more than one year, but not more than two years, after the former tenant vacated the rental unit.

11 (1) The Act is amended by adding the following section: Application based on certain notice
Affidavit under s. 72 (1)

71.1 (1) A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed.

Non-compliance with subs. (1)

(2) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1).

(2) Section 71.1 of the Act, as enacted by subsection (1), is amended by adding the following subsections:
Previous use of notices under s. 48, 49 or 50

(3) A landlord who, on or after the day subsection 11(2) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48, 49 or 50 shall, in the application,

1. (a)  indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different rental unit; and
   
   
2. (b)  set out, with respect to each previous notice described in clause (a),
   
   
   1. (i)  thedatethenoticewasgiven,
   2. (ii)  the address of the rental unit in respect of which the notice was given,
   3. (iii)  theidentityoftheintendedoccupantinrespectofwhomthenoticewasgivenifthenoticewasgivenundersection 48 or 49, and
   4. (iv)  suchotherinformationasmayberequiredbytheRules.

Non-compliance with subs. (3)

(4) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3).

12 Section 72 of the Act is amended by adding the following subsections:

Determination of good faith

(3) In determining the good faith of the landlord or the purchaser, as applicable, in an application described in subsection (1), (1.1) or (2), the Board may consider any evidence the Board considers relevant that relates to the landlord’s or purchaser’s previous use of notices of termination under section 48, 49 or 50 in respect of the same or a different rental unit.

Application of subs. (3)

(4) Subsection (3) applies with respect to any application described in subsection (1), (1.1) or (2) that,

1. (a)  is made on or after the day section 12 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing
   Act, 2020 comes into force; or
2. (b)  was made before that day and was not finally determined before that day.

13 Section 73 of the Act is amended by adding the following subsections:

Determination of good faith

(2) In determining the good faith of the landlord in an application described in subsection (1), the Board may consider any evidence the Board considers relevant that relates to the landlord’s previous use of notices of termination under section 48, 49 or 50 in respect of the same or a different rental unit.

23

24

Application of subs. (2)

(3) Subsection (2) applies with respect to any application described in subsection (1) that,

1. (a)  is made on or after the day section 13 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing
   Act, 2020 comes into force; or
2. (b)  wasmadebeforethatdayandwasnotfinallydeterminedbeforethatday.

14 Subsection 73.1 (1) of the Act is amended,

1. (a)  by striking out “48.1, 52” and substituting “48.1, 49.1, 52”; and
2. (b)  by striking out “48 or 50” and substituting “48, 49 or 50”.

15 (1) Paragraph 2 of subsection 78 (1) of the Act is amended by striking out “A settlement mediated under section 194” at the beginning and substituting “A settlement agreed to under section 194”.
(2) Paragraph 2 of subsection 78 (3) of the Act is amended by striking out “A settlement mediated under section 194” at the beginning and substituting “A settlement agreed to under section 194”.
(3) Paragraph 4 of subsection 78 (4) of the Act is amended by striking out “If a settlement was mediated under section 194” at the beginning and substituting “If a settlement was agreed to under section 194”.
(4) Paragraph 5 of subsection 78 (7) of the Act is amended by striking out “If a settlement was mediated under section 194” at the beginning and substituting “If a settlement was agreed to under section 194”.
(5) Subsection78(12)oftheActisamendedbystrikingout“asettlementmediatedundersection194”andsubstituting “a settlement agreed to under section 194”.

16 Section 82 of the Act is repealed and the following substituted:

Tenant issues

82 (1) At a hearing of an application by a landlord under section 69 for an order terminating a tenancy and evicting a tenant based on a notice of termination under section 59, the Board shall permit the tenant to raise any issue that could be the subject of an application made by the tenant under this Act if the tenant,

1. (a)  complies with the requirements set out in subsection (2); or
2. (b)  provides an explanation satisfactory to the Board explaining why the tenant could not comply with the requirements set out in subsection (2).

Requirements to be met by tenant

(2) The requirements referred to in subsection (1) are the following:

1. The tenant shall give advance notice to the landlord of the tenant’s intent to raise the issue at the hearing.
2. The notice shall be given within the time set out in the Rules.
3. ThenoticeshallbegiveninwritingandshallcomplywiththeRules.

Orders
(3) If a tenant raises an issue under subsection (1), the Board may make any order in respect of the issue that it could have made had the tenant made an application under this Act.

Transition
(4) This section, as it reads on the day section 16 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, applies to any hearing held after that day that relates to an application that was filed before that day.

17 (1) Subsection 83 (4) of the Act is amended by striking out “48.1, 52” and substituting “48.1, 49.1, 52”. (2) Subsection 83 (5) of the Act is amended,

1. (a)  by striking out “subsection 54 (2) applies” and substituting “subsection 54 (2) or (4) applies; and
2. (b)  by striking out “subsection 54 (2)” at the end and substituting “subsection 54 (2) or (4), as applicable.

(3) Section 83 of the Act is amended by adding the following subsections:

Refusal for certain arrears of rent

(6) Without restricting the generality of subsections (1) and (2), if a hearing is held in respect of an application under section 69 for an order evicting a tenant based on arrears of rent arising in whole or in part during the period beginning on March 17, 2020 and ending on the prescribed date, in determining whether to exercise its powers under subsection (1) the Board shall consider whether the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant’s arrears.

Application of subs. (6)

(7) Subsection (6) applies with respect to any application described in that subsection that,

1. (a)  is made on or after the day subsection 17 (3) of Schedule 4 to the Protecting Tenants and Strengthening Community
   Housing Act, 2020 comes into force; or
2. (b)  wasmadebeforethatdayandwasnotfinallydeterminedbeforethatday.

Same

(8) For greater certainty, subsection (6) applies whether or not a date has been prescribed for the purposes of that subsection.

18 (1) Subsections 87 (1) and (3) of the Act are repealed and the following substituted:

Applications

Application for arrears of rent

(1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay arrears of rent if,
(a) the tenant or former tenant did not pay rent lawfully required under the tenancy agreement; and
(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 subsection 18 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force.

Application under subs. (1)

(1.1) An application under subsection (1) may be made,

1. (a)  while the tenant is in possession of the rental unit; or
2. (b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit.
   .....

Application for compensation for use and occupation of unit

(3) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay compensation for the use and occupation of the rental unit after a notice of termination or an agreement to terminate the tenancy has taken effect if,

1. (a)  the tenant or former tenant is or was in possession of the rental unit after the termination of the tenancy; and
2. (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 subsection 18 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force.

Application under subs. (3)

(3.1) An application under subsection (3) may be made,

1. (a)  while the tenant or former tenant is in possession of the rental unit; or
2. (b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit.

(2) Subsection 87 (4) of the Act is amended by striking out “both owing” and substituting “both owing by a tenant”. (3) Subsection 87 (5) of the Act is amended,

1. (a)  by striking out “tenant” in the portion before paragraph 1 and substituting “tenant or former tenant”; and
2. (b)  by striking out “tenant” in paragraph 1 and substituting “tenant or former tenant”.

(4) Section 87 of the Act is amended by adding the following subsections: Application

(6) This section applies with respect to,

1. (a)  arrears of rent described in subsection (1), even if the arrears accrued before the day subsection 18(1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force;
2. (b)  the use and occupation of the rental unit described in subsection (3), even if the use and occupation occurred before that day; and
3. (c)  charges described in subsection (5), even if the charges were incurred before that day.

25

26

Transition, court proceedings not affected

(7) Despitesubsection168(2),there-enactmentofsubsections(1)and(3)bysubsection18(1)ofSchedule4totheProtecting Tenants and Strengthening Community Housing Act, 2020 does not affect any court proceeding for an order for the payment of arrears of rent or compensation for the use and occupation of the rental unit, or for the payment of both, that is commenced before the day that subsection comes into force and has not been finally determined before that day.

19 The Act is amended by adding the following section:

Application for compensation for interference with reasonable enjoyment, etc.

88.1 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay costs described in subsection (4) if,

1. (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,
   
   1. (i)  the reasonable enjoyment of the residential complex for all usual purposes by the landlord, or
   2. (ii)  another lawful right, privilege or interest of the landlord; and
2. (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.

Application under subs. (1)

(2) An application under subsection (1) may be made,

1. (a)  while the tenant is in possession of the rental unit; or
2. (b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit.

Same

(3) If the Board makes an order requiring payment under subsection (1) and for the termination of the tenancy, the Board shall set off against the amount required to be paid by the tenant the amount of any rent deposit or interest on a rent deposit that would be owing to the tenant on termination.

Compensation for interference with reasonable enjoyment, etc.

(4) The costs referred to in subsection (1) are reasonable out-of-pocket expenses that the landlord has incurred or will incur as a result of an interference described in clause (1) (a) and do not include costs that the landlord may recover in an application under section 88.2 or 89.

Application

(5) This section applies with respect to,
(a) an interference described in clause (1) (a), even if the interference occurred before the day section 19 of Schedule 4 to
the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force; and

Transition, court proceedings not affected

(6) Despite subsection 168 (2), the enactment of this section by section 19 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 does not affect any court proceeding for an order for the payment of compensation for an interference described in clause (1) (a) that is commenced before the day that section comes into force and has not been finally determined before that day.

20 The Act is amended by adding the following section: Application for compensation for failure to pay utility costs

88.2 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay costs described in subsection (4) if,

1. (a)  while the tenant or former tenant is or was in possession of the rental unit, the tenant or former tenant failed to pay utility costs that they were required to pay under the terms of the tenancy agreement; and
2. (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 20 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force.

Application under subs. (1)

(2) An application under subsection (1) may be made,

1. (a)  while the tenant is in possession of the rental unit; or
2. (b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit.

Same
(3) If the Board makes an order requiring payment under subsection (1) and for the termination of the tenancy, the Board shall set off against the amount required to be paid by the tenant the amount of any rent deposit or interest on a rent deposit that would be owing to the tenant on termination.

Compensation for failure to pay utility costs

(4) The costs referred to in subsection (1) are reasonable out-of-pocket expenses that the landlord has incurred or will incur as a result of a tenant’s or former tenant’s failure to pay utility costs that they were required to pay under the terms of the tenancy agreement.

Application

(5) This section applies with respect to,

1. (a)  a failure described in clause (1)(a),even if the failure occurred before the day section 20 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force; and
2. (b)  out-of-pocket expenses described in subsection (4), even if the expenses were incurred before that day.

Transition, court proceedings not affected

(6) Despite subsection 168 (2), the enactment of this section by section 20 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 does not affect any court proceeding for an order for the payment of compensation for a tenant’s or former tenant’s failure to pay utility costs that is commenced before the day that section comes into force and has not been finally determined before that day.

21 (1) Subsection 89 (1) of the Act is repealed and the following substituted:


Application for compensation for damage
(1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property if,

1. (a)  while the tenant or former tenant is or was in possession of the rental unit, 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 wilfully or negligently causes or caused undue damage to the rental unit or the residential complex; and
2. (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 subsection 21 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force.

Application under subs. (1)
(1.1) An application under subsection (1) may be made,

1. (a)  while the tenant is in possession of the rental unit; or
2. (b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit.

(2) Subsection 89 (2) of the Act is amended by striking out “required to be paid” and substituting “required to be paid by the tenant”.

(3) Section 89 of the Act is amended by adding the following subsections: 

Application

(3) This section applies with respect to,

1. (a)  damage described in clause (1) (a), even if the damage occurred before the day subsection 21 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force; and
2. (b)  costs described in subsection (1),even if the costs were incurred before that day.

Transition, court proceedings not affected

(4) Despite subsection 168(2), the re-enactment of subsection (1) by subsection 21(1) of Schedule 4 to the ProtectingTenants and Strengthening Community Housing Act, 2020 does not affect any court proceeding for an order for the payment of compensation for damage to the rental unit or the residential complex that is commenced before the day that subsection comes into force and has not been finally determined before that day.

27

28

22 Paragraph 2 of subsection 94.11 (1) of the Act is amended by striking out “A settlement mediated under section 194” at the beginning and substituting “A settlement agreed to under section 194”.

23 Subsection 135 (1.1) of the Act is amended by striking out “48.1, 52” and substituting “48.1, 49.1, 52”.
24 The Act is amended by adding the following section:

Rent increase deemed not void

135.1 (1) An increase in rent that would otherwise be void under subsection 116 (4) 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.

Non-application

(2) Subsection(1)does not apply with respect to an increase in rent if the tenant has, within one year after the date the increase was first charged, made an application in which the validity of the rent increase is in issue.

Deemed compliance with s. 116

(3) For greater certainty, if subsection (1) applies with respect to an increase in rent, section 116 is deemed to have been complied with.

Application of s. 136

(4) For greater certainty, nothing in this section limits the application of section 136.

Transition
(5) This section applies with respect to an increase in rent even if it was first charged before the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent, provided the validity of the rent increase was not finally determined by the Board before that day.

25 (1) Subsections 137 (7) and (8) of the Act are repealed.

(2) Subsection 137 (12) of the Act is amended by striking out “(2), (6), (7), (8), (9) or (10)” in the portion before paragraph 1 and substituting “(2), (6), (9) or (10)”.

(3) Section 137 of the Act is amended by adding the following subsection:

Transition, Protecting Tenants and Strengthening Community Housing Act, 2020

(19) This section and any related regulations, as they read immediately before the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent, continue to apply with respect to tenancy agreements that were entered into before that day.

26 The Act is amended by adding the following section:

Exclusion from rent

165.1 (1) This section applies with respect to an amount that a landlord charges a tenant under the terms of a written agreement for any prescribed services and facilities or any prescribed privilege, accommodation or thing that the landlord provides for the tenant in respect of the occupancy of the site for a mobile home.

Not within the definition of “rent”

(2) On and after the applicable prescribed date and if the prescribed circumstances apply,

1. (a)  the prescribed services and facilities or the prescribed privilege, accommodation or thing shall not be considered to be services and facilities or a privilege, accommodation or thing that fall within the definition of “rent” in subsection 2 (1); and
2. (b)  the amount charged by the landlord for the prescribed services and facilities or the prescribed privilege, accommodation or thing shall not be included in the rent charged to the tenant.

Reduction of rent

(3) If the rent charged to a tenant immediately before the applicable date referred to in subsection (2) includes an amount to which that subsection applies, the landlord shall reduce the rent charged to the tenant in accordance with the prescribed rules.

Application

(4) For greater certainty, this section applies with respect to an agreement referred to in subsection (1) whether the agreement is a tenancy agreement or any other agreement entered into between a landlord and a tenant.

Same

(5) For greater certainty, this section applies with respect to an agreement referred to in subsection (1) even if the agreement was entered into before the day section 26 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force.

27 Subsection 167 (1) of the Act is repealed and the following substituted:

Increased capital expenditures

(1) If, on an application made under section 126 on or after the day section 27 of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, the Board finds that a capital expenditure is for infrastructure work, the Board may, despite subsection 126 (11) but in accordance with the prescribed rules,

1. (a)  determine the number of years over which the rent increase justified by the capital expenditure may be taken; and
2. (b)  determine the percentage increase justified by the capital expenditure that may be taken in each year described in clause (a).

Same

(1.1) For greater certainty, the number of years determined under clause (1) (a) may be less than, equal to or greater than three.

Same

(1.2) For greater certainty, the percentage increase determined under clause (1) (b) may be less than, equal to or greater than 3 per cent in any given year and need not be the same for each year.

28 The Act is amended by adding the following section:

Application under s. 87, 88.1, 88.2 or 89

189.0.1 (1) This section applies with respect to an application under subsection 87 (1) or (3), 88.1 (1), 88.2 (1) or 89 (1) if, at the time the application is made, the tenant or former tenant who is a party to the application is no longer in possession of the rental unit.

Notice from applicant

(2) The applicant shall, within the time set out in the Rules, give the tenant or former tenant,

1. (a)  a copy of the application; and
2. (b)  a copy of any notice of hearing issued by the Board in respect of the application.

Certificate of service

(3) The applicant shall, in the circumstances set out in the Rules, file with the Board a certificate of service on the tenant or former tenant in the form approved by the Board.

Application

(4) If this section applies with respect to an application,
(a) paragraph 1 of subsection 188 (1) and section 189 do not apply with respect to the tenant or former tenant; and (b) clause(2)(b)appliesdespitetheStatutoryPowersProcedureAct.

29 Section 191 of the Act is amended by adding the following subsection:
Same, tenant or former tenant no longer in possession

(1.0.1) Despite subsection (1), a notice or document is sufficiently given to a tenant or former tenant who is no longer in possession of a rental unit,

(a) (b) (c) (d)

30 (1)

by handing it to the tenant or former tenant;
by sending it by mail to the address where the tenant or former tenant resides;
by handing it to an apparently adult person where the tenant or former tenant resides; or byanyothermeansallowedintheRules.

Subsection 194 (1) of the Act is repealed and the following substituted:

Mediation or other dispute resolution process

(1) The Board may attempt to settle through mediation or another dispute resolution process any matter that is the subject of an application or agreed upon by the parties.

(2) Subsection 194 (2) of the Act is amended by striking out “mediated under this section” and substituting “agreed to under this section”.

(3) Subsection 194 (3) of the Act is amended by striking out “that can be mediated under this section” and substituting “that can be agreed to under this section”.

(4) Subsection 194 (4) of the Act is repealed and the following substituted:

29

30

Settlement
(4) If some or all of the issues with respect to an application are settled under this section, the Board shall dispose of the application in accordance with the Rules.

(5) Subsection 194 (5) of the Act is amended by striking out “mediated”.

31 (1) Subsection 206 (3) of the Act is repealed and the following substituted:

Restriction

(3) In an order under subsection (1) issued on or after the day subsection 31 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, the Board shall not order that the tenancy be terminated.

Application under s. 78

(3.1) In an order under subsection (1) issued on or after the day subsection 31 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, the Board may include 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 of the order.

(2) Section 206 of the Act is amended by adding the following subsection:

Request under subs. (4) or (5)

(5.1) A landlord may file a request to reopen the application under subsection (4) or (5) even if the order includes a provision described in subsection (3.1).

32 The Act is amended by adding the following section: Production order

231.1 (1) Aprovincialjudgeorjusticeofthepeacemayatanytimeissueaproductionorderintheprescribedformtoaperson, other than a person under investigation for an offence, requiring the person to,

1. (a)  produce documents or copies of documents, certified by affidavit to be true copies, or produce data; or
2. (b)  prepare a document based on documents or data already in existence and produce it.

Contents of order

(2) A production order shall stipulate when, where and how the documents or data are to be produced and to whom they are to be produced.

Grounds

(3) A provincial judge or justice of the peace may make a production order if the provincial judge or justice is satisfied by information given under oath or affirmation that there are reasonable grounds to believe that,
(a) anoffenceunderthisActhasbeenorisbeingcommitted;

2. (b)  the document or data will provide evidence respecting the offence or suspected offence; and
3. (c)  the person who is subject to the order has possession or control of the document or data.

Conditions

(4) A production order may contain such conditions as the provincial judge or justice of the peace considers advisable.

Evidence

(5) A copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in any prosecution of a person for an offence under this Act and has the same probative force as the original document would have if it had been proved in the ordinary way.

No return of copies

(6) Copies of documents produced under this section are not required to be returned to the person who provided them.

Compliance required

(7) A person to whom a production order is directed shall comply with the order according to its terms.

33 Clause 233 (f) of the Act is amended by striking out “sections 48.1, 52, 54 and 55” at the end and substituting “section 48.1, 49.1, 52, 54 or 55”.

34 Section 234 of the Act is amended by adding the following clause:

(t.1) fails to comply with a production order issued under section 231.1;

35 (1) Subsection 238 (1) of the Act is amended by striking out “$25,000” at the end of the subsection and substituting “$50,000”.

(2) Subsection 238 (2) of the Act is amended by striking out “$100,000” at the end of the subsection and substituting “$250,000”.
36 Section 239 of the Act is amended by adding the following subsection:
Same

(1.2) No proceeding shall be commenced respecting an offence under clause 234 (l) more than two years after the date on which the facts giving rise to the offence came to the attention of the Minister.

37 Section 240 of the Act is amended by adding the following subsection:
Printout of electronic version

(5) Subsections (1) to (3) apply, with necessary modifications, to any printout of the electronic version of a certificate, statement, document, order or record referred to in those subsections that is stored or maintained by the Board in an electronic format, if the printout is certified as a true copy of the electronic version by the person who made the printout.

38 (1) Paragraphs 45.3, 45.4, 46 and 47 of subsection 241 (1) of the Act are repealed. (2) Subsection 241 (1) of the Act is amended by adding the following paragraphs:

1. 59.1  prescribing services and facilities and privileges, accommodations and things for the purposes of subsection 165.1 (1);
2. 59.2  foreach of the prescribed services and facilities and prescribed privileges, accommodations and things, prescribing the applicable date and the circumstances governing the application of subsection 165.1 (2);
3. 59.3  prescribing the rules governing the reduction of rent for the purposes of subsection 165.1 (3);

(3) Paragraph 60 of subsection 241 (1) of the Act is repealed and the following substituted:

60. prescribing rules governing the determination of the number of years under clause167(1)(a);
61. prescribing rules governing the determination of the percentage increase under clause167(1)(b);

61.1 prescribing services and things for the purposes of subsection 167 (2);

39 (1) Section 241.1 of the Act is amended by adding the following paragraph:

4. prescribing the form of a production order for the purposes of subsection 231.1(1).

(2) Section 241.1 of the Act is amended by adding the following subsection:

Regulation under par. 2 ii of subs. (1)

(2) A regulation made under subparagraph 2 ii of subsection (1) may, with respect to a prescribed class of tenancies,
(a) prescribe different forms of tenancy agreement depending on whether the tenancy agreements for that class are entered into before a date specified in the regulation or are entered into on or after that date; and
(b) provide that for tenancy agreements that are entered into during a transition period specified in the regulation, either one of the forms described in clause (a) may be used for the purposes of compliance with paragraph 1 of subsection 12.1 (1).

40 The Act is amended by adding the following section:

Transition regulations, Protecting Tenants and Strengthening Community Housing Act, 2020

241.3 (1) The Lieutenant Governor in Council may make regulations governing transitional matters that, in the opinion of the Lieutenant Governor in Council, are necessary or advisable to deal with issues arising out of the amendments to this Act made by Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020.

Same

(2) A regulation made under subsection (1),

1. (a)  may provide that, despite the coming into force of a provision of this Act, as enacted by Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020, the provision does not take effect in all or part of the province until the date specified in the regulations;
2. (b)  may provide that a provision of this Act, as it reads immediately before the commencement date of its amendment, repeal or re-enactment by Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020, continues to apply for a specified period of time and with necessary modifications, to specified things or in specified circumstances;
3. (c)  may govern the application of provisions of this Act to proceedings before a court or the Board in which a claim is made relating to amendments to this Act made by Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 and which were commenced before the commencement date of the amendment.

Commencement

41 (1) Subject to subsection (2), this Schedule comes into force on the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent.
(2) Subsection 3 (2), sections 9 to 13, 18 to 21, 26 to 29, 32 and 34 and subsections 38 (2) and (3) and 39 (1) come into force on a day to be named by proclamation of the Lieutenant Governor.