Complaining tenant dies. What happens to eviction proceedings?

Does the death of a complaining tenant void the eviction of the perpetrator?

What a weird topic for an article on residential landlord and tenant law.  However, it seems like an increasingly current and real issue given how the Landlord and Tenant Board is scheduling and hearing cases.  The LTB is taking many months if not years to resolve cases.  Circumstances change over that time and yes, complaining tenants some times pass away.  Does the extended passage of time, the death of the complainant, play to the favour of the tenant who is being evicted?

While I have introduced this issue with the "death" of the complainant, the fact is that there are similar issues to "death" that are being argued as relevant and dispositive of eviction applications.  What is "similar" to death?  In the unique context of Landlord and Tenant law I would say that the stopping of a negative behaviour for months and months and months before an eviction hearing is similar to the "death" of a complainant.  The stopped negative behaviour (screaming, fighting, swearing, anti-social actions) is similar in that no one is being bothered by the offending tenant any longer.  Similarly, if the offending actions were caused by a specific person in the offending tenants household and they have moved out, are no longer living there, or no longer visiting, that has the effect of no one being bothered any more by the offending tenant.  The "no one" being bothered is, in a sense, the tenant who died.   Therefore, if the deceased tenant is no longer complaining or being bothered (i.e. no one is being bothered), should the Landlord and Tenant Board entertain a termination and eviction of the offending tenant?   

Put another way, should a tenant (or someone in their household) who was raising all kinds of hell and making life miserable for some other tenants or the landlord be able to take advantage of procedural delays and the passage of time (or the death of the complainer) to say that the issue is ancient history and is now irrelevant.   The legal concept that is often argued is that the passage of time has made the case "moot".  "Moot" being defined as a circumstance that has little or no practical relevance.

This issue tends to come up in the following way.  A tenant commits an anti-social action (say--smoking in the hallways).  The smoking bothers a neighbour and triggers her asthma.  The landlord serves an N5 and says the smoking in the hallways must stop.   The tenant complies for a few weeks and then a month later starts smoking in the hallways again.  The landlord serves a second N5 and files an application to the Landlord and Tenant Board.   That application is not scheduled for hearing for 14 months (not an uncommon timeline these days---but the exact timing isn't the key to his article).  Assume that prior to the hearing date the tenant who was complaining about being bothered by the smoke passes away.  Alternatively, assume that shortly after the hearing the complaining tenant passes away.   Assume also in the first scenario that the tenant stopped smoking "cold turkey" 4 months before the hearing.  In the second scenario the smoker tenant wants to review or appeal on the basis that the person bothered is now deceased so why evict?

The passage of time between objectionable behaviour and the ultimate hearing and whether anyone is still around to be bothered by the behaviour is a difficult issue.  What if, instead of the complainant dying, the persons bothered decided to simply move out.  Maybe because of the objectionable behaviour or maybe just because their life took them elsewhere.  Does their moving out and being unaffected by the smoking tenant change what should happen at the hearing of the case?

I know that in my current practice that I am spending a lot of time on three parts of an N5 application.  I seek to prove at least one serious issue in the first N5, then the serious issues in the 2nd N5, and then I spend some serious time proving negative behaviours between the second N5 and the actual hearing date (which, as indicated, can be months to years).   The reason for addressing the time between the 2nd N5 and the hearing date is to challenge the idea that the issues have become moot, meaningless, or pointless.  The objective is to establish that things have not gotten better and hence, the idea that the offending tenant should only be evicted if the objectionable actions are still ongoing is avoided.   

It is oft argued under section 83 RTA (discretion section), that the stopping of negative behaviour for long periods of time, or no one who is bothered still being in the surrounding rental units or in the building, is a reason to refuse eviction.  Is that the correct way to be thinking about this?

To inform my thinking on this issue I've recently read the Divisional Court's decision in Holland v. 149732 Ontario Inc., 2023 ONSC 3377 (CanLII), a case that seems to have been ably argued by Mr. John Dickie here in Ottawa.  In that case, the relevant time line appears to be:  LTB hearing began March 23, 2021 and finished June 8, 2021.  A decision on that case was issued November 9, 2021, terminating the tenancy for November 20, 2021.  The evicted tenant filed an appeal on November 20, 2021 (thereby stopping the eviction until the hearing of the appeal).  The tenant who suffered at the hands of the evicted tenant died on May 12, 2022.   The appeal was heard on May 31, 2023.

As you can see from the above dates, the time line runs over more than 2 years.  What is missing from the timeline is the date that the landlord applied to the LTB and how long it took to get to the hearing that started in March 23, 2021.  The appealed decision that would contain this information does not appear to be reported (yet).  However, it is entirely fair to presume that the case at the LTB would have been pending for at least a year before the hearing started in March 2021.   Hence, the life of the case is just over 3 years long.

What the Divisional Court in Holland tells us is that the "appeal is not moot because H.D. has died" (H.D. was the complaining tenant).  The Court goes on to say that the "the fault is not wiped out or cancelled because the victim of the interference has died".   This, I think, is a rather significant direction from the Divisional Court on how to look at the changing circumstances of cases due to the passage of time.   The fact that the complainant has died (and therefore is no longer bothered) does not make the case pointless and moot.

The Court goes on to make another very important point.  A landlord in pursuing an eviction against a tenant, even where the complaining tenant has died, is obligated to future new tenants to make reasonable efforts to ensure that those new tenants are not subjected to substantial interference by the offending tenant.   This, I think, is a very valuable direction from the Court as it is very often the case that by the time a landlord gets to hearing the neighbours who have been harassed and stressed out have moved out of the building to get away from the offending tenant.   Their moving out does not create a pass for the offending tenant.

The Court, in Holland, further cites a decision in North Avenue Road Corporation v. Travares, 2015 ONSC 6986, also a Divisional Court decision.   This case actually finds that the LTB errs in using section 83 to determine that an issue is "moot" because the tenant complaining had moved out by the time of the hearing.   The Court indicates that the finding that the issue is moot is in fact incorrect and that the LTB erred by failing to consider that the landlord has a duty to future tenants.  While the Court does not overturn the Board's decision to maintain the tenancy and evict the tenant, the Court does set aside the decision and sends it back to the LTB for a fresh determination.

CONCLUSION

The passage of time, the stopping of activity for a long period of time before the eventual hearing, or the moving out of the persons who suffered from the offending activity, is not a basis to argue that an issue has become moot.  A landlord has a continuing obligation to not only the tenant (who died or who has moved out) but to all future tenants who may be affected by the offending activity.  

Michael K .E. Thiele