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Guideline 7 - Relief From Eviction: Refusing or Delaying an Eviction

Interpretation Guidelines are intended to assist the parties in understanding the Tribunal's usual interpretation of the law, to provide guidance to Members and promote consistency in decision making. However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case.

Even though a landlord succeeds in an application to evict a tenant, the Tribunal may delay or refuse the eviction. In some cases, the Tribunal must refuse the eviction. These powers are referred to as "relief from eviction".

Legislation
Section 84 of the legislation states:

1. Upon an application for an order evicting a tenant or subtenant, the Tribunal may, despite any other provision of this Act or the tenancy agreement,
   1. refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
      
   2. order that the enforcement of the order of eviction be postponed for a period of time.
      

2. Without restricting the generality of subsection (1), the Tribunal shall refuse to grant the application where satisfied that:
   
   1. the landlord is in serious breach of the landlord's responsibilities under this Act or of any material covenant in the tenancy agreement;
      
   2. the reason for the application being brought is that the tenant has complained to a government authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards;
      
   3. the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
      
   4. the reason for the application being brought is that the tenant is a member of a tenant's association or is attempting to organize such an association; or
      
   5. the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

Procedural Considerations

These powers relate to any application to evict a tenant, assignee or subtenant. This includes applications under sections 78 (abandoned unit), 69 (terminations under sections 51 to 68), 99 (care home transfers), and 76 and 77 (grounds that require no notice to the tenant). However, if a landlord applies under section 81 to evict an unauthorized occupant who is neither a tenant nor subtenant, the Tribunal has no power to delay or refuse an eviction.

The Tribunal has no responsibility to consider these issues unless they are raised by the tenant. However, the Member may raise the issue on their own initiative. For example, if the Member was aware that the tenant had alleged harassment by the landlord in another application, the Member could ask for submissions regarding whether the eviction should be delayed or refused.

The facts in support of the parties' position will usually be presented at the hearing through relatively informal statements.

If a landlord or tenant disputes the facts presented by the other party, they may ask the Member to treat the statements of fact as "evidence". If the Member decides to do so, the facts can be stated again as sworn or unsworn testimony. The other party may then cross-examine the witness and/or call other witnesses to refute those facts.

This stage of the hearing will usually be relatively informal and it may be completed within a reasonable time and, in most cases, without adjournments.

If the tenant convinces the Member that the eviction should be refused, an order will still be issued. If the landlord only applied for the eviction, the application would be dismissed by order. If other claims were made, such as arrears of rent, the Member can order the relief but not the eviction. If the tenant convinces the Member to delay the eviction, an order would be issued terminating the tenancy on the date decided by the Member.

General Principles

The Tribunal has a general discretion to refuse or delay an eviction under subsection 84(1), after considering all relevant circumstances. If the Member finds that any of clauses (a) to (e) of subsection 84(2) applies, it is mandatory to refuse the eviction.

The Tribunal has these powers despite anything in the legislation or in a lease. Even though the Act provides that a tenant will be evicted for a particular reason, that will not prevent the Tribunal from considering relief from eviction.

Section 84 is intended to benefit tenants. It allows the Tribunal to refuse an eviction in a case which involves a breach of the landlord-tenant relationship. It gives the Member who hears the case the authority to weigh the unfairness to one party against the unfairness to another party. Further, it provides mandatory relief from eviction as protection for tenants in certain situations, although the onus is on the tenant to request it.

Discretionary Refusal of an Eviction

A tenant who requests refusal of the eviction must convince the Member that there is a good reason to do so. The tenant may base their request on such arguments as:

• in a case involving an allegation of tenant "fault" (such as eviction for arrears or illegal act), they are being evicted for a reason which is not serious enough to justify eviction,

• in a case not involving any allegation of tenant "fault" (such as eviction for the landlord's own use), they are being evicted for reasons other than those alleged by the landlord

• the eviction would be unfair to them, for example, because they have been a good tenant, there is no other appropriate accommodation available, they have rectified the problem that led to the eviction, or

• the landlord was arbitrary or unfair to take this action, or has acted in bad faith.

Unless the Member believes that the tenant's request provides a legitimate reason for refusing the eviction, there is no need to call on the landlord to respond: an eviction order will be issued.

If the tenant's request presents a possible reason for refusal, the landlord may then explain why it would be unfair to them. This will usually involve explaining why the reason for the eviction application affects that landlord or other tenants in a serious way; for example, how the rent arrears affect the landlord's financial position or how the safety issue affects the personal safety of other tenants. The landlord may also raise other serious concerns about the continuation of this tenancy.

The Act gives little guidance as to when the discretion to refuse should be used. Clearly, there must be a good reason to refuse the eviction. The legislation also requires that any unfairness of refusing the eviction should be considered. The words "having regard to all the circumstances" mean that the situation of both the tenant and the landlord must be considered.

Circumstances Justifying Discretionary Refusal

The tenant's conduct has been an important consideration in many past decisions. For example:

• If the tenant got far behind in their rent payments, but has recently made extra payments to catch up, and owes relatively little now, the discretion may be exercised in their favour. (The tenant's conduct will be a more convincing factor if it was voluntary, in that it was done before the landlord gave a notice of termination. However, each case must be decided on its own, considering all factors.)

• In a case of persistent late payment of rent, the tenant had financial problems when he became unemployed, but for months since he found another job, payment has been right on time. The eviction, may be refused despite the earlier months of late payments, due to the tenant's good conduct.

• Eviction may appear to be unfair if no other accommodation is available to the tenant (e.g., a social housing tenant). By itself, a case in which the landlord is in a better financial position than the tenant does not justify refusal of the eviction. A tenant is not excused from paying rent even if the landlord has greater financial resources (e.g., a public agency or large corporate landlord). Ordinarily, the tenant's lack of resources will be considered as a reason to delay an eviction, not to refuse it. However, all circumstances must be considered. Other relevant factors may include whether the current reason for eviction happened has been repeated, the impact this tenant is having on the landlord or other tenants, whether the tenant has taken positive steps to reduce or eliminate the reason for the eviction, and other indications of good faith on the part of either the landlord or the tenant.

Landlord actions or conduct which led to the eviction should also be considered. For example, if the landlord prevented a tenant from repairing damage done by a guest or child, this would be relevant. If the landlord has excused many other tenants from a minor breach, an arbitrary eviction of one tenant for the same breach may be refused, depending on all of the other circumstances.

Discretionary Delay of an Eviction

The Act provides little guidance as to when the Tribunal should use its discretion to delay an eviction. Clause 84(1)(b) does not specify any factors that might be considered, or what period of time might be appropriate for the delay.

Generally, the Member would take into account the time that it will normally take the landlord to enforce the order through the Court Enforcement Office.

Even if "all of the circumstances" did not justify refusal of the eviction, the Member may look at the same issues of unfairness to each party, and decide whether or not to delay the eviction.

The following examples illustrate situations in which a short delay (say, up to an extra week) may be appropriate:

• The tenant has disputed the application upon grounds they reasonably believed would be a successful defence. At the hearing, the tenant is unsuccessful, but asserts that the market conditions in the locality are unusually "tight" and that it will take some time to find suitable accommodation.

• The tenant was a caretaker who occupied a unit in connection with their employment, and would be subject to eviction within seven days after dismissal as an employee. However, where it is shown that the landlord is not filling the position of caretaker immediately, further time could be given for the former caretaker to move out of the unit.

The following are examples of situations which may justify a somewhat longer delay:

• The tenant shows that he or she is affected by a severe medical condition which makes it difficult to find other accommodation, and there are no persons who can help him or her search for a vacant unit.

• The tenant's family is very large and they require at least five bedroom accommodation, similar to their current unit. There are very few such units in the local market, and none are in the current advertisements.

The following are examples of circumstances which would usually not, by themselves, justify delaying the eviction.

• The tenant claims that he or she is waiting for subsidized housing, for which the tenant has applied, but has not received any commitment that a unit is available.

• The tenant believes it is bad timing to move during the winter or in the last part of the school year.

Mandatory Refusal of Eviction

Mandatory refusal applies to situations which the Act provides are serious enough to justify refusal ­- regardless of any other circumstances.

If a tenant raises circumstances which might fall into subsection 84(2), the Member must decide whether it applies⁽¹⁾. Further, once it is found that subsection (2) applies, the Member cannot fail to refuse the eviction⁽²⁾.

Serious Breach of Landlord Obligations

The Tribunal must refuse an eviction if the landlord is in serious breach of the landlord's responsibilities under the Act or the tenancy agreement.

Many claims are related to the landlord's maintenance obligations. A health or safety concern due to lack of repair may be serious enough to justify refusal. Conditions which deprive the tenant of the full use of the premises will usually be serious, particularly if it affects the kitchen, bathroom or sleeping areas. Members must decide whether other repair problems constitute a "serious breach" of obligations, considering the landlord's actions to resolve the problems as well.

In cases related to the obligation to repair, the tenant's conduct may also be relevant. For example, if the tenant has never before complained to the landlord about a long-standing repair problem, they may have shown they did not consider it to be serious. Further, if the landlord was not aware of the problem, the Member may not consider it to be a serious breach of obligation. Further, the tenant should not have contributed to the problem, such as by obstructing the landlord's repair efforts.

The tenant may raise a breach of another obligation of the landlord under the Act. For example, the Act imposes on landlords the obligation not to illegally enter a unit, nor to harass a tenant. The Member must decide the issue and, if satisfied that the facts presented show a serious breach, they must refuse the eviction.

If the tenant raises a breach of the tenancy agreement, they must present facts to show that it was a serious breach and that it relates to a significant provision of the agreement.

Even if the breach is not found to be serious and there would be no mandatory refusal, the lack of repair or other breach of obligation may still be considered . It would be one of the circumstances of unfairness to consider in deciding whether discretionary refusal is appropriate.

Retaliatory Actions by the Landlord

The Member must refuse the eviction if the reason the landlord applied for eviction is described in clause (b) to (e) of subsection 84(2) (these clauses are quoted on page 1).

The tenant would explain what actions they took which they believe caused the landlord to seek the eviction. However, the tenant has a higher onus. They must prove that the reason for the application (not just "a reason", as in the Landlord and Tenant Act) is one of the above motivations. It is difficult to prove another person's state of mind. The landlord will assert that the reason stated in the application was the reason for the application.

The tenant may try to show from the landlord's conduct that the motivation was retaliatory. For example, the tenant may be able to show that the landlord has evicted other tenants who asserted their rights. The tenant might also show that the landlord ignored the same issue for other tenants that is the basis for this eviction. A pattern of conduct may be considered by the Tribunal, but it may also be explained by the landlord.

Even if the tenant does not establish to the Member's satisfaction that the reason for the application was retaliation and, thus refusal is not mandatory, the facts that supported the tenant's claim could be one of the circumstances considered in deciding whether there should be discretionary refusal of the eviction.

RELEASE DATE: JUNE 29, 1998

Notes:

1. See Kosan v. Wynn-Jones (1987), 21 O.A.C. 300 (Divisional Court)
2. See Chin v. Hunt (1986), 17 O.A.C. 267 (Divisional Court)