Tuesday, 30 July 2013

Kicking out the Boarder or Roommate

This week has brought some interesting questions about the obligation that a person has towards a roommate or boarder.  The rights of a boarder are not likely to be covered by the Residential Tenancies Act.  In fact, there are a number of landlord and tenant like relationships that are specifically exempted by the Residential Tenancies Act and those are set out in section 5 of the Act.

The fact scenario that I got this week was from a gentleman, in his 70s, who was renting out the second bedroom in his two bedroom apartment to a roommate.  He brought that roommate into the unit to help meet the rent and pay for some of the utilities in the unit.  Unfortunately, that roommate has started to  abuse him by calling him names, threatening him (verbally) and entering his room without permission even though the understanding is that neither of them would enter each others' room without knocking and permission.

The gentleman who called was increasingly upset by the behaviour of his roommate and he wanted to evict him.  What could he do was the question.  The fact is, that in this scenario, the roommate is not a protected tenant under the Residential Tenancies Act.  This is both good and bad.  Because the RTA does not apply the gentleman who called could very quickly demand that the roommate leave the unit on a permanent basis.  The "bad" is that there is no framework or established procedure for how you go about getting rid of the non-protected roommate.

Does the gentleman who called me owe the roommate any kind of "fair warning" or notice that he is being kicked out of the apartment?  This is a difficult question to answer and unfortunately, the best answer is that "it depends".   My analysis of "it depends" turns on the fact that  the roommate is entitled to reasonable notice to quit--which means a reasonable notice to get out of the rental unit even though they are not a tenant.  This principle has recently been affirmed in a case out of the Small Claims Court called Boudreau v. Landry 2013 CarswellOnt 8895.

The question in non-RTA covered tenancies will be what is "reasonable" notice to quit.  How do you define the word "reasonable".  When you think about it for a while it becomes clear that a reasonable notice will not be more than the legal notice required to be given to a tenant who is protected by the RTA.  Using RTA notice periods as a guide for what is "reasonable" you have 10 days for illegal acts involving drugs, 20 days of other illegal acts, 20 days for interference with reasonable enjoyment, 60 days for landlord's own use--or purchasers own use,  14 days for non payment of rent and 120 days for conversion demolition or repair.  Then of course there is also the tenant's notice of 60 days for monthly tenancies.

Notwithstanding the guidance that the RTA provides in its Notice periods; in the circumstances of the situation I've described above I was comfortable recommending to the client that "reasonable notice" was immediate termination and removal from the apartment.  In effect, I felt that in the circumstances, zero notice was appropriate.  My reasoning was that I could not envision a  Court requiring an elderly gentleman to live in circumstances where he was being threatened, verbally abused, and his personal bedroom was being invaded.  Presuming of course that the behaviour of the roommate could be proven, I felt that it was reasonable to make the roommate leave immediately without giving him any notice or warning.

You can see that what constitutes a reasonable Notice to Quit is going to be very dependent on the facts of each individual situation.  I think the factors that are relevant will include the reason for terminating, the rent that has been paid, the terms of the agreement, whether the manner of termination of the agreement had indeed been contracted for, the behaviour of the roommate, and the prejudice and risk suffered by the actual tenant or landlord owner if the roommate is allowed to continue in possession.

What is clear from Boudreau v. Landry is that the Court will impose significant financial penalties on landowners--who rent out rooms to persons and who have a non-RTA covered tenancy and tenants---if the manner in which they deal with them is not fair, reasonable, and even handed.  Just because a tenant does not have the protection of the Residential Tenancies Act does not give the landlord carte blanche to do what they like to that tenant.

If you find yourself needing to evict a non-RTA covered tenant from your property you will find that the Ontario Landlord and Tenant Board is unable to assist you.  Your only remedy is to see if the Police will help you in removing the roommate or boarder from the premises and if not, you are left with applying to the Court for a Writ of Possession to be enforced by the Court Enforcement Office (i.e. Sheriff).

Michael K. E. Thiele
Lawyer
Ottawa, Ontario

Tuesday, 2 July 2013

Appeals to the Divisional Court

Exasperation and frustration barely describes the feeling that many landlord's have when a tenant exercises his or her right to file an appeal to the Divisional Court.  The appeal process causes an incredible delay and takes the efficiency of the Landlord and Tenant Board and dispenses with it entirely.  The strategic use of the automatic delay caused by filing an appeal is a significant problem in the Residential Landlord and Tenant Law context.  In recent months we again are seeing decisions from the Divisional Court where the Judge notes that the point of the appeal was delay (which succeeded) and that the appeal was devoid of merit from the outset.

So what happens?  In a typical case a landlord files an application to the Ontario Landlord and Tenant Board.  That case is heard within a month or so of the application being filed.  A decision is made and the tenancy is ordered terminated and the tenant is required to move out by a specified date.  Within 30 days of that decision the tenant is entitled, at law, to file an appeal to the Divisional Court on a question of law alone.  So, prior to the enforcement of the eviction by Sheriff, the tenant files the appeal and pursuant to the Rules of Civil Procedure, and the Statutory Powers Procedures Act, the decision of the Landlord and Tenant Board (to terminate and evict) is automatically stayed.  A "stay" means that the eviction order can not be enforced until the appeal is heard.

The key to the appeal process is to understand how an appeal proceeds through the legal system/court system.  Unlike the Landlord and Tenant Board process, an appeal follows the Rules set out in the Rules of Civil Procedure.  There is a significant difference in procedure from the Landlord and Tenant Board to the Superior Court of Justice (Divisional Court) appeal Rules.  What was rather "people" friendly in the Board process now effectively demands the involvement of lawyers with appeal experience in the Court process.  I have yet to see a layperson do anything more than muddle through an Appeal and in each instance time was wasted and procedural advantages lost due to inexperience with the process.

In Eastern Ontario (Ottawa) an appeal to the Divisional Court will take a least a year if not a year and a half to be heard.  There are numerous instances where the appeal will take much longer to be heard.  The most important thing to understand in relation to appeals is that the time line is driven by the landlord and the tenant.  The Court itself does very little to move the case along and in fact will allow an appeal to sit idle for over a year before making the slightest inquiry into the intentions of the parties.

Often, I am approached by landlords who advise that they have been waiting for the Court to send them a Notice of Hearing (like the Board process).  They are surprised to learn that because the tenant has done nothing other than file a Notice of Appeal that the case is not on any trial list and that it will never be scheduled for a hearing.  The Rules require a tenant to take certain steps in relation to an appeal in order to "Perfect it" and to set it down for hearing.  Technically, this is supposed to be done within 30 days of filing the appeal.  However, there is absolutely no penalty for not doing so and in fact an appellant can Perfect the appeal at any time prior to the appeal being dismissed for delay.

Landlords (respondents to appeals) need to force the appellant tenants to comply with the timelines in the Rules of Civil Procedure.  If the timelines are not met the landlord should bring a motion to the Divisional Court to dismiss the appeal for delay.  In other instances, when it is clear that the appeal is a complete fiction (no merit and just a strategic delay) it is also possible to bring a motion to dismiss the appeal as being frivolous and vexatious or alternatively for an order lifting the Stay that prevents the eviction of the tenant pursuant to the Board's order.  Also, if the tenant has stopped paying rent or is behaving in a way that is inconsistent with the tenancy a respondent can bring a motion requiring payment of ongoing rent or other interlocutory relief (i.e. orders requiring the tenant to do certain things or stop doing certain things pending the hearing of the appeal).

The over-all point of this blog today is to high light the fact that Appeals to the Divisional Court are very tricky and time consuming.  A non-lawyer who does not understand the process is most certainly going to make mistakes in the appeal process that will likely be harmful to their interests.  Appeals require specialized knowledge and a background in Court procedures.  To simply "wait" for the case to resolve itself will mean waiting for a very long time for the Court's process to eventually dismiss the appeal for delay.  In the interim, if the landlord has done nothing, the entire point of the application and Order from the Landlord and Tenant Board will be subverted by the procedural delays caused by the Appeal process.

Michael K. E. Thiele
QTMG LLP
Ottawa, Ontario
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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.