Can I sue: Apartment building has severe criminality, gang activity, intimidation, and the Landlord does nothing!

Can a tenant sue a landlord when the landlord fails to control criminality in the building?

Imagine a tenant who lives in an apartment building where there is rampant drug use in the common areas, violence, threats of violence, vandalism, intimidation of tenants by others in the building, and basic criminality is a part of every day life.   How horrible it must be to live in a building like this?  Why stay there?--many ask.  The answer often is that the apartment is subsidized and moving is not an option because finding something affordable elsewhere is impossible.  Even if the unit is not subsidized, sometimes the answer is that the rent is affordable compared to renting elsewhere.  Moving is not an option as rents are high and moving costs money too.

Does a tenant have to put up with criminality, open drug use, trafficking, and all of the anti-social and anti-community impacts that these kinds of activities bring with them?  For a long time now, anyone versed in Landlord and Tenant law would point a tenant complaining of this kind of activity to a T2 Application (Tenant's Rights) that can be pursued at the Ontario Landlord and Tenant Board.  Along with that direction, most lawyers, paralegals, and clinics would tell a tenant that the chance of recovering very much, against a landlord, was low.  The concept of general damages---the award of pure pain and suffering money--at the Landlord and Tenant Board is more theoretical than real.  Even when an adjudicator is convinced to make an award the sum is generally quite modest (low).  

There are two major barriers to any tenant wishing to retain a lawyer or paralegal to pursue a T2 claim against a landlord for the issues described.  The first is that paying a lawyer or paralegal an hourly rate is a financial challenge from out of pocket money.  That problem is compounded by the fact that the Residential Tenancies Act makes illegal any type of contingency fee that exceeds 10% of the amount that is recovered.  Given that the absolute maximum knock it out of the park home run after a hearing is $35,000 (soon to be $50,000 on October 1, 2025), the maximum legal fee on a contingent basis is $3500 (see section 214 RTA and O.Reg. 516/06 s. 60 for the contingency fee cap).   You can safely presume that getting the Landlord and Tenant Board to award $35,000 for substantial interference with reasonable enjoyment is highly improbable.  The LTB favours an abatement analysis for damages which is a percentage of the rent paid--even when a case is proven.  That approach limits the value of damages and measures them relative to the rent as opposed to a more abstract conception of fairness, harm, and putting the victim back into the position they were in (as far as money allows) before the harm.

The low awards, limit the contingency fees to be earned.  The work involved (for the legal representative) is virtually guaranteed to exceed any reasonable or modest fee that can be charged.  There is a reason that lawyers and paralegals are not lining up to take on tenant cases (the inability to earn a reasonable living even when winning a case is quite dissuasive).

The next major issue (barrier) is that Residential Tenancies Law has incorporated a fault analysis that looks at the reasonableness of a landlords behaviour in response to the issues raised.    This approach is adopted from cases such as Onyskiw where the Ontario Court of Appeal affirms an approach where the landlord escapes liability on repair issues where they can establish that they proceeded diligently in dealing with the repair problems.  For this reason, when tenants do file T2 applications against their landlords because they are being harassed by other tenants, Landlords typically defend on the basis that they have investigated the issues, written letters, served Notices of Termination where appropriate, and are simply waiting for a hearing at the Landlord and Tenant Board.  A defence (roughly in these terms), tends to be successful.

The problem, of course, is that a landlord who responds to issues in the building by investigating transgressions and then initiating LTB proceedings, is doing very little (to nothing at all) to preventing the behaviours from occurring in the first place.   There is little incentive vis a vis liability to other tenants to properly vet prospective tenants to see if they are a good fit for the building.  Tenant past history, trouble at other places, can be ignored without any real risk---in the sense of liability being imposed on the landlord for not properly selecting prospective tenants.   There is also limited liability and risk to a landlord when they fail to proactively protect the residential complex, fail to have adequate security, and fail to harden the property against criminality.  For the most part, tenants only have success if they establish that a landlord fails to respond to issues in a timely way and even then, the damages awarded tenant to be quite modest.

Is anything changing?  There is a very interesting case in Ottawa called Yasin v. Ottawa Community Housing Corporation et. al. .

The link to this case (above) is an endorsement in a civil action respecting pleadings.  It is technical and procedural.  However, the endorsement by C. MacLeod RSJ is something to take note of.  The facts in that case (as pleaded--not yet proven), is that a tenant's rental unit was invaded by a guest of another tenant who was high and paranoid.  The tenant whose unit was invaded was so terrified that she jumped from her balcony--10 metres--suffering physical and psychological injuries.

What is interesting about this case is how it is framed.  The plaintiff is alleging that the defendant landlord breached a broader duty of care.  How RSJ MacLeod responds to the pleading is far more familiar to tort lawyers than it would be to Landlord and Tenant lawyers--it is an occupiers liability framework.  The measurement of damages seems to follow more of the general damages pain and suffering model than the LTB's abatement of rent model.

It also appears, in Yasin , that the plaintiff is aiming not just at the immediate actions of another tenant, or another tenant's guest, but at the entire organization of the residential complex, the landlord's knowledge of problems in the area, and basically the foreseeability of danger and hazards in the residential complex before those dangers have manifested.   This is very interesting---and will be of great interest to tenants living in community housing buildings where they have little option of moving elsewhere.   This case potentially challenges the housing programs that focus on housing the unhoused without immediate or close analysis of the impact of housing the unhoused on the tenants who are already living in the building.    It is not uncommon to be contacted by tenants in subsidized housing complaining about their residential complex and them describing it in terms similar to the alleged facts in Yasin.  As alleged in Yasin, it is not uncommon to hear of landlords who move in new tenants with problems that quite predictably cause severe distress and trauma for other tenants in the building.   It seems that the plaintiff, in Yasin, is putting that kind of landlord practice under the microscope.

Hopefully, Yasin will end up with a trial judgment for us all to review.  It raises interesting questions that will perhaps re-shape how the LTB considers T2 applications and the obligations of landlords in tenanting a building and ensuring that there is adequate and appropriate security.  Landlords should have a duty to their sitting tenants and should ensure that in filling a building that they are making reasonable choices, not just for themselves, but also for the tenants who will need to live next to each other.

Michael Thiele

www.ottawalawyers.com

Mistake in Termination/Eviction Notice? Irrelevant!

MAKING IT EASIER TO EVICT TENANTS with sloppy and error filled eviction notices (section 212(2) Residential Tenancies Act) 

Residential Tenancies law in Ontario was carved out of the Ontario Landlord and Tenant Act in the 1970's.  The section pertaining to residential tenancies was created to balance what was a tremendous power imbalance in the law related to residential rental properties.  Up to that time (1970's), there was little difference between commercial tenancies and residential tenancies. 

A hallmark of every version of the residential tenancies law and the various amendments along the way was that terminating a tenancy was a unilateral act imposed on tenants and that given the public policy value in security of tenure (i.e. stable housing), this unilateral act needed to be done in strict accordance with the law.   In practice, this meant that landlords needed to prepare and serve notices of termination that were essentially "perfect".   If a particular notice required that a tenant be given 14 days notice of termination then that notice was void if the tenant received anything less than 14 days notice.  Similarly, if a Notice of Termination required any other period of notice a failure to strictly comply would be fatal to the termination notice.

Notices of Termination have strict content requirements.  Section 43 of the Residential Tenancies Act states that the notice shall identify the rental unit for which the notice is given, state the date on which the tenancy is to terminate, be signed by the person giving the notice, and that it set out the reasons and details respecting the termination.  That same notice should inform the tenant of statutory rights to remain in the unit and to require the landlord to obtain an Order from the LTB and to inform the tenant that the tenant has the right to dispute the application.

The strict requirements pertaining to Notices of Termination have been reiterated, affirmed, and made stronger through numerous appellate decisions over the years.  The most famous case, perhaps, is Ball v. Metro Capital.  That case spoke to the content of N5 Notices and what a landlord needed to write in the details to ensure that the notice would be valid.  The Court held that procedural fairness, natural justice, and a tenant's fundamental right to know the case to be met was at issue in the details and contents of the termination notice.   If the details were insufficient, vague, or unclear, the Notice was void and the unilateral imposition of eviction by a landlord by intending to remove a tenant from their home via an Application to the Landlord and Tenant Board was summarily dismissed.

The strictness of Termination Notice requirements was a reliable bright line that brought predictability to the LTB hearing processes.  The strictness was sometimes harsh in its application but given the aim to make a tenant homeless through the service of a Notice of Termination it did not seem unreasonable to require a landlord to fill out a form correctly.

Shockingly, filling out a Termination of Tenancy form correctly, filling it in without errors, seems to be too demanding a task.  The Residential Tenancies Act has been amended to forgive errors, sloppiness and obviate the need for accuracy.   The new section is s. 212(2) under the Substantial Compliance provision of the RTA.  It says this:

    When Error Still Constitutes Substantial Compliance

    (2) For greater certainty, an error in the contents of a form, notice or document still constitutes substantial compliance with this Act, as long as the error does not significantly prejudice a party's ability to participate in a proceeding under this Act.

You will need to read this a few times and let it sink in.  What this actually means and what the entire Substantial Compliance provision ever meant has not been particularly obvious.  The first subsection simply states: (1) Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.

We will see how the new subsection is to be interpreted.  My early experience with this new section at the LTB already has adjudicators questioning whether the errors that once mattered really matter at all.  On the plain wording of the section, it is a little difficult to see how any error in any form could ever actually prejudice a party's ability to participate in a proceeding.   If the tenant is there (at the hearing), no Order has been issued, and the tenant can lead evidence, then how can any error in a notice affect their ability to participate in the hearing!  The very worst thing that might happen is an adjournment (right?).    Imagine this. The termination date to evict for nonpayment of rent is incorrect.  The landlord should have given the tenant 14 days in the N4 Form.  However, he only gave 10 days notice (normally a fatal error)--but hey, you know what the landlord meant to do--so no harm, no foul.  You can see/hear the argument and adjudicator's rationale that "we" will just read the Termination Notice as if it contained the correct termination date.  The tenant can defend what should have been written and not what was actually written---fair?

This new section intends or purports to excuse inaccuracy and inattentive drafting.  It will now force tenants to move out and not attempt to stand on their rights as the accuracy of the Termination Notice no longer means anything (any error is excusable!).  I find this amendment shocking and a terrible development in Landlord and Tenant law.  This was not a necessary amendment and it will do much to set back and make cases all the more complicated and bog down the LTB even more.   Now we will have to have hearings and decisions respecting the issue of whether a tenant's ability to participate in a proceeding was affected by an error.   Is a tenant allowed to rely on the other sections of the RTA that stipulate mandatory requirements or are these just over-ridden by this general proposition?  Do the mandatory sections give way to a general saving provision?  Does "shall" mean "may"?

There was a time when errors in Notices of Termination were quickly figured out, a new Notice issued and served and a proceeding was re-commenced.  It was done in a timely way.  That was when the LTB resolved cases in a timely way.   There are some practitioners around who still remember an LTB that could issue an application (on the spot), provide choices of hearing dates (on the spot) and schedule that hearing within a 30 day window of time and then render a decision within a few days of the hearing.  Saying that, these days, sounds like a fairy tale--but it was real and the NORM!  There are even a very few sitting LTB adjudicators who remember those days.  In those days, substantial compliance, forgiving all errors was a laughable notion.  Not only was it laughable but it was unnecessary. A fatal error could be corrected relatively quickly (by re-issuing a proper notice) and you could be back before the Board with a proper notice in a very short period of time.   This new section smacks of a mechanism to excuse the LTB's inability to hold hearings in a timely way--the LTB is excusing Landlord errors to cover up their own inability to hold hearings in a reasonable period of time.  Shameful really.

Michael Thiele

www.ottawalawyers.com