ILLEGAL ACTIVITY BY TENANTS does not obviously mean eviction. There are many defences and relief from eviction is possible and even likely. Examples given and discussed.
Tenants committing crime or other illegal acts. One might think if a tenant is proven to have committed crime in the rental unit or in the residential complex that it would be a rather straightforward termination and eviction of the tenant. Is there much to talk about even? In fact, like most things involving the Residential Tenancies Act the devil is in the details and nothing is ever obvious no matter what the circumstances might look like.
I thought in discussing this topic that I would go over examples of several cases and give an overview of the allegations and then the outcome of the case at the Landlord and Tenant Board. Having examples and understanding of what happens is perhaps the most useful way to get an understanding about “illegal activity” and what the Landlord and Tenant Board is likely to do in any given case. This is a useful perspective for both tenant & landlord regardless of which side of the argument that you are on. If you are the landlord, you will discover that very serious illegal activity can still result in the Landlord and Tenant Board granting relief or refusing eviction. That same knowledge is very useful if you are a tenant and find yourself on the wrong side of an Illegal Act eviction application. Just because the facts are horrible does not mean that the tenancy will be terminated.
Before jumping into the facts of some cases, let me just set out what a Notice of Termination for Illegal Act needs to set out and what needs to be proven at a hearing to terminate a tenancy and evict a tenant who is alleged to have committed such acts.
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The Illegal act that the tenant commits must occur in the rental unit or in the residential complex. This means that no matter how horrendous or serious the crime might be; if it did not occur in the rental unit or in the residential complex then it can not be the basis for terminating a tenancy. And lastly, and this is a big one, the offence alleged must have the potential to affect the character of the premises or disturb the reasonable enjoyment of the premises by the landlord or other tenants. I note this as a “big one” because it is often forgotten and unexplored by landlords and tenants alike in their evidence—which is a real mistake as the legal test requires this potential to be proven and absent that proof the illegal act eviction application should be dismissed.
On that point (potential to affect the character), I recall a case from many years ago where my client was selling a high volume of untaxed tobacco from his rental unit. This was discovered when Police were called to his unit because he had been robbed and assaulted in his apartment (which was entirely unrelated to his tobacco business) and while making sure the burglar was gone they found a chest freezer full of tobacco in a back bedroom. My client was charged under the Excise Tax Act and by how the evidence was catalogued and published in handsome evidence books you’d think the police took down a cartel. Anyway, there was no defence to the tobacco selling and other than my client being a sympathetic character due to health concerns it was hard to imagine how this “illegal act” would not lead to eviction. Then inspiration struck and I remembered the “potential to affect the character” requirement (which by the way is an appellate authority, caselaw derived requirement in Swansea Village Co-op v. Balcerzak, [1988] O.J. No. 84 (Ont. Div. Ct.) . How I used this requirement as a defence was by getting the police officers to testify as to how often they attended the property (numerous times a day) and the kinds of activity for which they were called (prostitution, gang violence, guns, drug trafficking). As crazy as it might seem, the tobacco selling in the context of this particular residential complex was so astonishingly trivial that it couldn’t possibly have the potential to affect the character of the premises in a negative way. I think I was even cheeky enough to suggest that it improved the place. The outcome for my client was as hoped and the tenancy was not terminated (but he was prohibited from selling tobacco in the future). So, whether you are a landlord or tenant, do not discount the “potential to affect the character” piece of the test and try to remember it because it is a caselaw requirement and not reflected in the Residential Tenancies Act itself.
So, on with some fact scenarios for you to understand what can happen at the LTB on Illegal Act applications based on Form N6’s.
1. A tenant was arrested and charged with possession of crack cocaine and there was sufficient evidence for this finding even though the criminal charge was withdrawn. Police testified that a large number of people would come to the apartment building. The Tribunal held that based on the large number of people coming and going that the tenant’s activities seriously affect the character of the premises. This was over-turned on appeal as an error in law. The proven offence was “possession” and not trafficking, and the adjudicator failed to address the issue of whether one act (the proven allegation) of possession of crack cocaine in the parking lot would affect the character of the premises. The tenancy was maintained when the eviction application was dismissed.
2. A tenant renting out their rental unit on Air BnB for significantly more than the rent paid by the tenant was breaching the RTA (s. 234), and this was found to be an illegal act which affected the character of the premises because it gave a transient population access to the residential complex. (Tenancy terminated).
3. A search warrant was issued in the name of the tenant’s brother. The officer testifying (at the LTB) was not present at the search and did not have personal knowledge of where the marijuana and scales were found. The LTB dismissed the application because the landlord did not (or could not) prove that the tenant was aware of her brother’s conduct.
4. Police told a superintendent that they were removing property from the tenant’s unit as they believed it to be stolen property. The tenant was incarcerated at the time of the hearing. Held: A mere suspicion that an illegal act may have occurred was not sufficient to make out the ground for eviction. Tenancy not terminated.
5. Elderly tenant’s son uttered threat against janitor in front of contractors while holding an air gun that looked like a real assault rifle. The threatened janitor felt no longer able to live or work in the building and had to move. The son had a brain injury and other disabilities and had to live with his elderly mother who also had disabilities. The LTB found that illegal acts were committed, however, it was satisfied that actual safety was not impaired (because it was an air soft gun) and that relief should be granted because of the negative impacts that eviction would have on the tenant and her son. Tenancy was maintained on the condition that no further illegal acts occur.
6. The tenant was found with heroin in a taxi and a small amount of crystal meth was found in the rental unit. The tenant pled guilty to possession. The RTA did not apply to the heroin in the taxi because it was not on the residential complex. The tenant explained how the apartment was his first stable housing, that he was almost 2 months sober, and that his apartment was essential to his recovery. Tenancy was maintained on the condition that the tenant have no drugs in the residential complex in the future.
7. Tenant was convicted of two charges of attempting to lure a child by the internet and a further charge of attempting to expose his genitals to a minor. He was sentenced to four months in jail and 18 months probation. Relief from eviction was granted, his tenancy was not terminated. The reasoning was that he showed remorse, participated in a treatment program, his psychiatrist said he would not re-offend, and that eviction from his home of 15 years would be devastating to his mental health. AND, the LTB found that there was no evidence of any impact on other tenants since his return to the rental unit 16 months before (remember the importance of leading evidence on the “potential to affect the character” discussed above). Tenancy maintained and continued.
8. Tenant possessed prescription drugs for trafficking. Although the actual sale (trafficking) of these prescription drugs was away from the residential complex no relief from eviction was granted as this was a large scale drug operation that put other tenants at risk. Tenancy terminated and no relief from eviction.
9. Subsidized tenant lived in apartment for 22 years. Pled guilty to possession of drugs. This was an isolated incident and eviction was determined to be a disproportionate penalty to the conduct. The Court (1991 case) granted relief from eviction without any conditions.
10.Tenant with a four year old child, no criminal record, and no previous difficulties with the landlord, had a prohibited weapon and ammunition on the premises. Granted relief and tenancy maintained.
There are of course many hundreds more cases involving Illegal Acts so the above is just a sampling. My intention in reciting the facts of the above cases is to demonstrate that some rather serious allegations that are indeed proven will not result in eviction and that some less serious allegations (depending on perspective) can lead to eviction. Whether you are the landlord or tenant or representing the landlord or tenant, the key to the illegal acts (Form N6) termination and L2 application is to have a clear understanding of the illegal act being alleged and what specifically needs to be proven (ex. trafficking or possession are not the same thing). Knowing what needs to be proven if you are the landlord and making sure you have that evidence knowing the essential elements to be proven is critical. If you’re on for the tenant and can point out that the essential elements of the offence have not been proven then you should indeed win---I can't even begin to tell you how many times that I successfully defended tenants where I knew the legal requirements that needed to be proven in relation to the alleged offence and the landlord did not. The shock value of an allegation will not alone win a landlord a case. Further (and remember) knowing that not every illegal act is a basis for eviction and that the offence needs to have the potential to affect the character of the premises is extraordinarily valuable as a defence (and for the landlord to make sure that such evidence is led). See case #7 above to be reminded of how important such evidence is.
And lastly, if you are the tenant or representing the tenant, these kinds of cases are not at all destined to be lost even if the facts seem outrageously horrible. Section 83 (the discretion section), is extraordinarily powerful and a tenancy can be preserved if you can collect and lead evidence that supports the exercise of such discretion. The LTB is not an eviction machine and preserving a tenancy, if possible, does generally appear to be the objective of the adjudicators deciding these cases. So, take the time to explain life circumstances, treatment, help obtained, and explore and explain why the circumstances are now different and that other tenants in the building have no cause to worry if the tenancy continues. This is hard work—gathering this evidence—and it may be necessary to work with 3rd parties to put supports and services in place for tenants or to obtain medical reports to explain personal circumstances that put the incident in a different light. I think, as some of the above cases demonstrate, if you do that work a tenancy can be maintained even if the nature of the alleged Illegal Act makes it seem hopeless.
For landlords, don’t be so sure and cocky to think that an ugly allegation will carry the day or rely on the sense that where there is smoke there is fire. The LTB will not just terminate because of suspicion or because it is better to be safe than sorry. It is important to realize that an N6 (Illegal Act) is actually a difficult application to prove and that there are numerous defence strategies. Hence, if you are unsure that you have the ability to prove the essential elements of the offence, are unable to prove that the offence has affected the character of the premises, then it might be better to meet the tenant half way and enter into a mediated consent Order preserving the tenancy but prohibiting certain conduct with a section 78 breach clause. It is like probation with a penalty only if the activity happens again. The tenant gets a chance and you get an Order that should quiet down the activity at the building.
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