Friday, 4 November 2016

Form N5 technicalities: terminating a tenancy for noise and other anti-social behaviour

THE FORM N5: Technical requirements when a terminating a tenancy for substantial interference with reasonable enjoyment
One of the most complicated processes under the Ontario Residential Tenancies Act is to terminate a tenancy for substantial interference with reasonable enjoyment of the premises by the landlord or another tenant. What I’m talking about is noise, shouting, loud stereo’s, name calling, offensive conduct, anti-social behaviour, dogs barking, pets causing problems (smells), being messy, taking up common area space without authority, and all of the countless things that a tenant or occupant of the unit might do to substantially interfere with the reasonable enjoyment of the premises by other tenants or the landlord.
The Ontario Residential Tenancies Act makes behaviour, like that described above, the basis for terminating and evicting a tenant. If a tenant does the kinds of things described above the landlord (only the landlord and not another tenant), may serve the tenant with a Notice of Termination in Form N5. The "N" stands for "Notice" and the "5" just represents that it is the 5th notice available under the RTA. The N5 form can be filled out or downloaded from the Ontario Landlord and Tenant Board website.
The form N5 is deceiving in its simplicity. When you download the form you will see that it is all of 3 pages long. It provides some boxes to fill in and some boxes and circles to check off. On the second page it provides a little 6 box grid where you are directed to include the details of the allegations. There is not a lot of space in this grid leaving you with the impression that not very much is required to complete this form. The remainder of the form is completed by signing your name and providing contact details. How difficult can that be?
In fact, the Form N5 that you have just reviewed contains pitfalls that will cause your application to be dismissed if you don’t "get it right". In Residential Landlord and Tenant law, "near enough" is not in fact "good enough". While the standard for notices may not be perfection, the standard is not far off from that. Ontario appellate authority makes it clear that Notices of Termination must be correct in order to be valid. If the requirements of the Notice are not met the form is void (even if the error appears "obvious" and what was intended is clear). A notice that is void can not be amended or be fixed by the Board in a hearing. The landlord must simply start again if the notice is void.
With this in mind, it is important to get all of the essential elements of the Form N5 correct otherwise you will be starting the process all over again when the Board refuses the application or the adjudicator finds that the Notice contains a mistake or is lacking information.
This article does not address the entire N5 notice and all of the technical requirements of the N5 and the application process.  Instead, I’m directing my comments to the second page (reproduced here) and the 6 grid box under the heading "Details about the reasons for this Notice".
Firstly, this little box grid is very frustrating to use and given the propensity of the forms not to save the inserted information when you try to save the electronic version I always recommend that the only thing you put in this grid box is "see attached –Schedule A". Start your "Details about the reasons for this Notice" in a separate word processor document. Start with a title about what the document is and then in sequentially numbered paragraphs write out the supporting details.
The key (and point of this article) is to address the legal requirements of the "details" that you intend to provide. It is these legal requirements that mess up and profoundly frustrate a great many landlords. These legal requirements result in the dismissal of numerous applications to the Landlord and Tenant Board based on an N5. You lose the $170 application fee and usually several months of effort because of legal errors in the "details" portion of your notice. The effort is lost because you have to start from scratch–as if all of the work you have done counts for nothing. This is especially frustrating if you have corralled tenant witnesses to take a day off of work to come testify and the hopes are high to finally deal with and evict a problem tenant.
So, what does the Ontario Residential Tenancies Act say about the "details" section of the Notice of Termination (N5)? That is set out in section 64 (2)(b) RTA where the required contents of the N5 is set out. This section directs that the N5 shall "set out the grounds for termination".
Is it possible to be more vague than what this direction requires? I think it would be difficult to give a landlord less guidance. Fortunately, (or unfortunately if you’re not aware of the decision), the Ontario Divisional Court has, in a short but clearly written decision, explained what the "details" must contain in order to make a Form N5 valid.
The decision from the Court is a case called Ball v. Metro Capital. It is a difficult decision to find online so I will reproduce it at the end of this article so that you can read it. Given the importance of the case there is really no excuse not to read the case. This decision of the Court is probably responsible for more dismissals of applications than any other single case that I can think of in the Residential Landlord and Tenant context.
What is the thrust of Ball v. Metro? It is in essence the who, what, where, why, when, and how case. This is the case that defines what section 64(2)(b) means when you are directed to "set out the grounds for termination" in that little 6 grid box on page two of the N5 Form.
To understand what is meant by "who, what, where, why, when, and how", you have to understand how an N5 Notice of Termination works. An N5 is a voidable notice of termination. This means that a tenant, once they receive an N5, have the legal right to void the notice by changing their behaviour or paying for the damage (another ground of termination in the N5). Because the N5 purports to terminate their tenancy and evict them from their home, the Court has held that the tenant’s right to void the N5 is an exceptionally important right. Accordingly, the Court has held that a landlord must provide clear and unequivocal details about the alleged misbehaviour (i.e. who, what, where, why, when, and how) so that a tenant may exercise their right to void the N5.
The details are necessary in order to allow the tenant a full and complete opportunity to know what behaviours to stop or change in exercising their legal right to void the N5 notice. Without details, a tenant can not know what the alleged behaviours are that they must stop to enjoy the right to void the N5 Notice of Termination. If the allegations are vague, or over broad, a tenant is potentially left guessing about the reasons for the Notice of Termination.  Given that the failure to void the N5 may result in eviction, the Court has held that knowing exactly what conduct is being complained about is mandatory aspect of a validly drafted N5.   Accordingly, if you have drafted an N5 that seems vague or leaves a tenant guessing—then it will be a void notice and useless. A void N5 will result in the dismissal of your application to the Ontario Landlord and Tenant Board and you will not be able to get any order against the tenant.
EXAMPLES are always useful in trying to explain these concepts. Below, I will give you three examples of grounds that would be insufficient, vague, and hence result in an N5 containing them to be void. Further below,  I will give you the same three examples except with sufficient information to make the N5 valid and not technically void.  It is to be noted that just because an N5 is technically valid this does not mean that eviction is guaranteed.
IMPROPER DETAILS

1. You are always being loud and annoying to your neighbours and they are complaining to me about noise.
.2 There is a banging sound in your apartment and it is waking your neighbours.
3. Your dog barks too much, makes a mess, and scares the neighbour’s kids.

SAME DETAILS WITH PROPER INFORMATION

1. On or about October 5, 2016, at 11:45 p.m. you were shouting at someone in your unit. The shouting continued for about 30 minutes. You sounded angry and upset. This was concerning to your neighbours and woke your downstairs neighbour up. The shouting continues regularly and was heard on October 6, 11, and 13th, at approximately the same time of the night. This shouting is interfering with the reasonable enjoyment of the premises by your neighbours and it must stop.
2. Between the hours of 7 and 8 a.m., on an almost daily basis (the last reported time was June 2, 2016), your neighbours are complaining about a heavy banging and clanging sound coming from your unit. The floor shakes with this noise. Your neighbours report that it sounds like a heavy weight being set down similar to that on a gym set. The banging/clanging sound stops after about an hour and it is clearly something that you are doing in your unit. This sound is waking your neighbours early in the morning and interfering with their reasonable enjoyment of the rental unit. It must stop.
3. On July 3, 2016, between 8 and 11 p.m., and on July 4, 5, 6, and 7th, roughly between the same hours, your dog was barking almost continuously. Your neighbours knocked on your door on July 3 and 4th and there was no answer. A note was left on your door by your neighbour on July 5 requesting that you do something about your dog barking. The incessant barking is very disturbing to your neighbours. While investigating the barking sound I (the landlord) heard the barking on the 7th at 9:30 p.m. as well. I knocked on your door but you were not home. On July 8, 2016, I was in the building and noticed you coming into the building with your dog. Your dog was not on a leash and it ran up to several people in the hallways jumping on them. While your dog seems friendly and happy to see people I have received complaints that this jumping is scaring some of your neighbours. Further, while investigating the complaints, I noticed that you are not stooping and scooping after your dog in the back yard. There are numerous piles of feces in the yard and I have been told by the superintendent that he has witnessed your dog doing its business, off leash, and you not cleaning up the mess. You are required to prevent your dog from barking incessantly, required to keep your dog on a leash, and to stoop and scoop after your dog in order to void this notice.

If you compare the foregoing (#1 to #1, #2 to #2, etc.), you will see the obvious difference between the them. The details in the second set allow the tenant to know with much greater precision what is being complained about and what needs to be done. The information in the second set of details does not make the tenant guess about what the concerns are and therefore the tenant’s right to void the notice by compliance or stopping the alleged behaviour is preserved for them.
With respect to the examples in the first set, that do not provide much detail, you will hear many landlords argue that the details are unnecessary because the tenant knows what the problems are. This argument of course presumes that the allegations are valid and real and that the tenant is the source of the problem. The details of date and time are important because the noise or other behaviour may be the result of a another occupant in the rental unit or that of a guest or a service provider. The tenant may not know what the other occupant, co-tenant, or service provider is doing and as such the details will allow the tenant to make specific inquiries as to what is going on in their unit at that particular time of day.
Is it possible to "overkill" the details in the sense that you provide too much information? In my view the answer to this is yes. I have seen some landlords react to a dismissal of an N5/L2 application due to a lack of detail by serving a new N5 with dozens of pages of evidence, letters, and photographs attached to the new N5 Notice of Termination with the belief that providing all of this evidence will erase any doubt about what the problem is.
In my view, providing too much information and all of the supporting evidence invites more confusion and misunderstanding. The key, I think, is to find the balance between "material facts" and "evidence". The "material facts" are the who, what, where, why, when, and how of the allegations. The material facts are NOT all of the intricate details of the allegations along with the opinion and judgment of the complainants against the tenant.
An example of going over the top and providing too much detail is as follows—using the example from #1 above imagine the details as follows:

1. You were seen coming home from the bar by your neighbour drunk every night for the last several weeks and specifically on October 5, 6, 11 and 13, around midnight. Attached is a picture of you from the security footage and it is clear that you have been drinking and that you look unhappy and upset. Your neighbours don’t want to see you looking like this and you shouldn’t dress like this at your age. Your neighbour recorded you shouting on her cell phone and it seems you were on the phone yelling at your ex-spouse about his/her failure to pay spousal support. Given what you make you should not be yelling at her/him about these things and especially not so loud that everyone in the neighbourhood can hear about your problems. Your neighbour thinks that you are yelling because you have been unlucky at the bar and are just a lonely person. Shouting does not solve these problems. We received a fax from another tenant complaining about the shouting and it is clear that she thinks you have mental health problems but that this does not excuse your uncivil behaviour. You should see a doctor if you need help or maybe you should get some medication because this needs to stop otherwise you will be evicted.

Hopefully the foregoing "details" clearly demonstrate an inappropriate and unnecessary commentary about the problems in the tenant’s unit. While these details do set out the "problem" you can see that the level of detail is simply inflammatory and they do nothing to allow the tenant to identify the issues and stop the behaviour in order to void the notice. It is not necessary to provide a commentary about the tenant’s life and it is unnecessary and inappropriate to engage the tenant at this level.
A further problem with these details is that they beg the tenant to dispute the assertions of drunkenness, manner of dress, promiscuity, success at the bar, family law problems, and their mental health. These allegations will most certainly inflame the tenant’s passion and it is likely that they will lose sight of the actual point of the Notice of Termination (N5) which is that the shouting is disturbing others and to please stop it. In my view, an N5 that gets too personal and contains too much inflammatory language and information is just as bad as a Notice of Termination that contains too little information. Both are void, in my view, because they deprive or interfere with the tenant’s right to void the N5.
FURTHER IMPORTANCE OF MATERIAL FACTS
Focusing closely on the allegations in the N5 is important for another reason aside from letting the tenant know what needs to be done or stopped to void the N5. The allegations in the N5 set out the scope of the eventual hearing at the Landlord and Tenant Board.
What do I mean by this? If you are drafting an N5 the specific details in the N5 become the allegations that you have to prove at the Hearing in order to secure an eviction Order. Hence, if you look back to section 64 of the RTA you will see that the N5 may be served where the " conduct of the tenant ... is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant ... .
Your details allegations should reflect the section 64 grounds to terminate a tenancy. From a tenant perspective, the details are important in this respect because it lets the tenant know exactly what allegations need to be refuted or denied in order to "beat" the application at the Landlord and Tenant Board. This is an important aspect of the "details" as recognized by the Divisional Court and it complements the requirement at section 183 of the RTA that directs the Board to adopt a procedure that affords all persons affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
While this is very useful for the tenants, and it is their right to know these details for this purpose, I find that spending time on drafting the material facts with an eye to the section 64 requirements ensures that, as a landlord, you lead evidence that actually has a chance of evicting the tenant. A failure to thoroughly consider the allegation in the context of section 64 and failing to think about how you are going to prove the allegation is likely to end up with vague and unclear evidence that will not be sufficient to evict the tenant (i.e. the adjudicator will not be satisfied that you, as landlord, have met your burden).

If you give careful thought to the specificity of your allegations you will also likely come to realize that your knowledge of the exact nature of the complaints against the tenant may be lacking (especially if you are serving an N5 based on reported misconduct as opposed to misconduct that you have witnessed).  This should lead you to make better inquiries failing which you might be surprised by unhelpful evidence from your complainants at the hearing.  Further, as a bit of a "cheat" to try to capture complaints that are not specifically described in the N5--but which flow from the conduct complained about--you may wish to consider lightly blending in general allegations with the specific allegations (details) so that unexpected evidence from witnesses that are a legitimate ground for eviction can "count" for the purposes of the hearing.  Tenants--you will want to object to any of the generalized "cheats" that only become meaningful with the oral evidence of witnesses--i.e. as a tenant you want to limit the scope of the hearing to the specific allegations only and allow no room for generalized comments being the grounds for termination.
CONCLUSION
The Form N5 and the statutory requirements around the first and second N5 notices and the details are complicated. Having worked with these forms for many years it is readily apparent that how the N5/L2 case unfolds is sometimes confusing to adjudicators, lawyers, tenants, and landlords. To that end, if you find yourself trying to evict a tenant on an N5–and the resistance is fierce–you are likely best served by retaining an experience paralegal or lawyer to fight the application for you. Likewise, if you are tenant reading this blog you should take away from this that there are a number of serious and significant legal defences available to you. However, these technical and legal defences can be lost if you do not exercise your legal rights–hence a tenant who wants to fight an N5/L2 application is also best served by hiring experienced counsel or a licenced paralegal.


As promised, below is the case of Ball v. Metro Capital.  This is a must read for any landlord and tenant in Ontario.




Wednesday, 19 October 2016

Airbnb and Ontario tenants. Is it legal for tenants to rent out their units?




Whether tenants can rent their units out on Airbnb is a question that I am being asked more and more.  Landlord's are calling me expressing concern that there are strangers in their buildings and that other tenants are complaining about them.  The "strangers" it turns out are Airbnb guests who are paying to use a tenant's apartment for a short period of time.  Much like a hotel/motel.

The presence of Airbnb guests can be problematic for landlords.  These guests are often "partying", often are in louder groups, are entering other units when they get "lost", use common area facilities and services more intensely, and basically treat the apartment building like a hotel.   Regular full time tenants resent the change in feeling and atmosphere that these Airbnb guests bring with them and there are more instances of inappropriate behavior and hence a feeling that the building is less safe.

In this context, I'm asked, can the landlord stop a tenant from renting out their apartment on Airbnb?

The short answer, in my opinion, is an easy and unequivocal yes.  My legal opinion is that it is illegal for tenants, whose tenancies are subject to the Ontario Residential Tenancies Act, to rent out their apartments on Airbnb--with, or without, a landlord's consent.   The prohibition, of course, is not just in relation to Airbnb.  The prohibition applies equally to any "sharing" site that operates in the manner of Airbnb.

As people reading this likely know, Airbnb provides a software platform that facilitates the renting of apartments, homes, (residential properties), to prospective short term guests.  The platform is structured much like a hotel booking site and the terminology on the site makes one think of the hotel booking process.  The owner of the apartment/condo/house makes some money renting out the home for a short period of time and the person renting it gets a place that is generally nicer and cheaper than a typical hotel room.

THE REASON IT'S ILLEGAL

It should be noted that my opinion about the illegality of renting out a unit on Airbnb applies only to tenants renting out their units.  This opinion is not intended to speak to the legality of "owners" or commercial tenants renting out residential units on Airbnb.

The sections of the Residential Tenancies Act (RTA) that I will refer to are the following: s. 2(2)[definition of sub-let], s.97[sub-letting], s. 64 [termination-lawful right] and section 134(3) [illegal additional charges].

     Section 2(2) of the RTA provides as follows:

For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,

a) the tenant vacates the rental unit;

b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and

c) the tenant has the right to resume occupancy of the rental unit after that specified date.

 
What should be clear from reading this definition of sub-let is that this is what a tenant who is renting on Airbnb is doing.  They are advertising their unit for rent for a short period of time.  When it is rented, the tenant vacates the unit while it is to be occupied by the Airbnb guest who the tenant is authorizing to occupy the rental unit.  The Airbnb contract then has an end date at which time the Airbnb guest will "check out" and the tenant resumes occupancy of the rental unit.


Tenants do not have the legal right to sublet their apartments in Ontario without the consent of the landlord.  Section 97 of the RTA deals with sub-letting a rental unit and it provides as follows: 

                           A tenant may sublet a rental unit to another person with
                           the consent of the landlord ...

The noteworthy part of the section for the purpose of this opinion is the highlighted part and that is with respect to "consent". A tenant may not sublet a rental unit without first obtaining the consent of the landlord. The failure to obtain consent is contrary to the RTA and as it is a direct violation of the provisions of the RTA it may be characterized as an illegal act.  An illegal act in the landlord and tenant context does not mean only a criminal act.  An illegal act in Landlord and Tenant law is any act that is contrary to law.

Subletting without consent is also an infringement of a landlord’s lawful right, privilege or interest as recited in section 64 RTA as a ground for termination. This latter violation is the basis for serving an N5 on the tenant for renting out the unit on www.airbnb.ca .  How subletting without consent is an interference with a lawful right, privilege or interest may be characterized in different ways.  The obvious ways are that the landlord's economic interests are interfered with by affecting the other tenants' feeling in the building, changing the use of the building from apartment to hotel, and the presence of airbnb guests also changes the "risk" in the building likely impacting insurability.

ILLEGAL ACT

I think that the most powerful objection to a tenant renting out their unit via Airbnb is founded in the illegality of profiting from the inflated rental of the unit.  Interestingly, I think that the sections I'm about to discuss can not be overcome or waived even with the landlord's consent. 

Section 134(3) of the RTA provides as follows:


Unless otherwise prescribed, no tenant and no person acting on behalf of the tenant shall, directly or indirectly,

(a) sublet a rental unit for a rent that is payable by one or more subtenants and that is greater than the rent that is lawfully charged by the landlord for the rental unit;

                                     (b) collect or require or attempt to collect or require from any person
                                   any fee, premium, commission, bonus, penalty, key deposit, or other
                                   like amount of money, for subletting a rental unit, for surrendering
                                   occupancy of a rental unit or for otherwise parting with possession of
                                   rental unit.


When you consider the point of renting out an apartment on Airbnb, you quickly realize that the tenant is doing so for the purpose of making money.   The money that a tenant can make on Airbnb, over the course of a few weekends can pay the entirety of the rent and still leave the tenant with money left over.  The daily, weekly, or monthly, rents obtained through Airbnb vastly exceed the rent that the tenant pays to the landlord.

Section 134, above, makes it clear that it is illegal for a tenant to sublet a rental unit for any sum of money that is greater than the lawful rent for the unit.  Further, almost all of the advertisements I have read on Airbnb require the payment of a security deposit or other deposit.  These are clearly illegal under section 134((3)(b).

As the amount being charged to Airbnb guests exceeds what is being charged to the tenant, the collection of that rent is illegal and contrary to the RTA.   Interestingly, this is illegal, even if the landlord gave the tenant consent to sublet the unit.

The "sub-tenants" who rent from the tenant, through Airbnb, are entitled to apply to the Ontario Landlord and Tenant Board for a refund of the money that they paid that is in excess of the lawful monthly rent that was charged to the tenant.  This is set out in section 135(3) which provides: " A subtenant may apply to the Board for an order under subsection 1 ... .  Subsection 1 of section 135 provides that an application may be made for the return of money collected illegally.

In the context of this section it is not difficult to see the policy reason for preventing a tenant from being able to earn money from their rental unit in this way. Tenants would become landlords and speculate in rental units and ultimately, when subtenants had real problems the actual tenants could disappear without accountability.

Based on the foregoing it is my legal opinion that the activity of Ontario tenants renting out their units on www.airbnb.ca or similar websites, is not permissible and in fact is contrary to the Ontario Residential Tenancies Act.

Michael K. E. Thiele
www.Ottawalawyers.com


 

 

Monday, 9 May 2016

Residential Tenancies Act Amendments: Consultation!

The Ontario government is going through a consultation process respecting proposed amendments to the Residential Tenancies Act.  Public consultation has been extended to the end of June 2016.  The government has produced a consultation paper that lays out many different proposed amendments and asks questions about issues arising in the context of residential landlord and tenant relationships.  Your comments are invited and may be sent to the following coordinates:

You can provide your input by email or by post. 
Mail:  Residential and Commercial Tenancies Unit
Housing Policy Branch
Ministry of Municipal Affairs and Housing
777 Bay Street, 14th Floor,
Toronto ON  M5G 2E5
________________________________________
Consultation by government with respect to legislative changes is one way that citizens have to tell the government what is wrong or right or what needs changing in any particular system.  The Residential Tenancies Act certainly takes a lot of criticism from many people--tenants and landlords--as there is fairly common perception that the RTA favours one side or the other.  Which way the bias goes tends to depend on whether you're talking to landlord or a tenant.
Anyway, as I was saying to one of my partners, I must participate in this consultation as it is only through participating that I think I have the moral right to complain when my suggestions don't rise to the top of the change pile.  That is a little tongue in cheek, but I do sincerely think that when offered an opportunity to comment about things we care about or which affect us that we should take the opportunity to do so. Who knows how our own experience may influence drafting or changes to legislation.  So that being said, how does one comment?  Above you can see the government website, the request for comments, the links and the where to send your thoughts.  That being said, what should one's comments look like?  Certainly, in this respect I am no expert but I considered it when preparing my comments.  The key I thought, was to be concise and speak directly to proposed changes in a clear manner.  Whoever is tasked with reading all of the "comments" is unlikely to spend a lot of time deciphering unintelligible rantings.  Having a clear axe to grind is likely not helpful either.  With this in mind, I thought that I would comment only on the proposals that I actually had something to say about.  I thought I would share my comments on the proposals with you just to see if this might spark a debate.  Anyway, below you will find an excerpt "proposal" from the government's consultation paper (link above) and my comment on that proposal immediately following it.

_____________


May 6, 2016
Residential and Commercial Tenancies Unit
Housing Policy Branch
Ministry of Municipal Affairs and Housing
777 Bay Street, 14 th Floor
Toronto, ON M5G 2E5

Dear Sirs:

Re:     Consultations to proposed changes to Residential Tenancies   Act Feedback and responses to discussion questions
Please accept this letter as my feedback and response to the consultation paper respecting changes to the Residential Tenancies Act, 2006.   I have been practicing residential landlord and tenant law for 20 years and have extensive experience in the Residential Tenancies Act .  As counsel, I represent landlords, tenants, and non-profit housing corporations.


1.2     Proposal: Explore whether to allow landlords to pursue certain issues (e.g., rental arrears, utility arrears, damage) at the LTB for up to 12 months after a tenancy has ended.

Comment:     The procedural blocks, the rules of evidence, locating the former tenant and serving the Plaintiff’s Claim, the time involved, and possible costs sanctions at the end of trial in the Small Claims Court serves to minimize/weed out frivolous and minor claims.  Removing cost/procedural barriers to litigation in a Landlord and Tenant Board process may invite litigation that would normally not be pursued.  The current system (Small Claims Court) generally limits claims to serious claims.  I don’t think the system should encourage minor claims that can be filed without consequences (i.e. costs) as it may fill dockets with trivial matters at the expense of important ongoing disputes between current landlords and tenants.

2.1     Proposal: Require tenants to disclose any issues that they intend to raise at rental arrears eviction hearings to the landlord prior to the hearing

Comment:     This proposal speaks to the issue of prejudice/trial by ambush.  The unfairness to landlords is the ambush on issues they have not prepared or have evidence for.  Presently, I see many Landlords object to tenant issues and then they are offered an adjournment or some time in the hallway to review the tenant’s evidence.  The offer of an adjournment causes further prejudice as the arrears grow.   Fairness dictates that everyone before the Board knows the case to be met (and it is required under s. 183 RTA).   The only change I’d recommend is that Landlords be given the right, in the face of any tenant issues being raised, to an adjournment that maintains the status quo.  Meaning, the case is adjourned with an Order requiring the tenant to pay rent for the remainder of the month from the date of the hearing (forthwith to the Landlord or into the Board) and all future rent arising prior to the return of the application in full and on time.  The failure to make these required payments leads to the “standard order” being made ( a voidable pay and stay order).  Failure to pay the required amounts should not prejudice the tenant’s right to file a T2/T6 or other tenant application.  The RTA does not presently support the self help notion of withholding rent for maintenance issues etc..  Proceeding as this comment suggests recognizes that the tenant has with-held rent for alleged outstanding issues but does not force payment for the “past” when some of the with-held rent may have been used for damage, alternate accommodation etc. for which the tenant intends to seek compensation/abatement.  

2.3     Proposal: Explore whether any changes should be made to the process for appealing decisions of the Landlord and Tenant Board to the Divisional Court


Comment:    There need to be extensive changes in the Appeal process.  The change though, is not only in the Residential Tenancies Act .  The change needs to also  be in the Rules of Civil Procedure .  Landlord and Tenant Board appeals are currently dealt with as regular appeals of Court judgments.  It needs to be recognized that Landlord and Tenant Board orders are not regular court judgments and a unique appeal process should apply to these orders.  

Landlord and Tenant Board processes are Board driven in that the Board schedules a hearing and moves the case along once the application is filed.  Currently, an appeal to the Divisional Court is party driven , meaning that the Court does nothing to move an Appeal along after the filing of a Notice of Appeal.  An appeal to the Divisional Court will sit, for years, if the parties do nothing.  The automatic stay on eviction will stay in place so long as the appeal is pending.  The Divisional Court registrar does not actively exercise the dismissal power under the Rules of Civil Procedure.

The Divisional Court motion process to dismiss an appeal for delay or failure to perfect or for being frivolous and vexatious and without merit requires the preparation of a motion record, affidavit(s) and factum.  It is expensive relative to the complexity of many appeals.  This is unfair to landlords.  In my experience, Landlord’s rarely appeal decisions given the costs, which deprives us of appellate authority on important Landlord and Tenant issues.

Deciding to appeal a Landlord and Tenant Board decision is effectively impossible for an un-represented person.  Done properly, an appeal requires a Notice of Appeal, Certificate Respecting Evidence, Appeal Book, Compendium, Factum, Certificate of Perfection, Transcripts, and Requisition.   All of these are required in triplicate for the Court and a copy for the opposing side and one for yourself.  I’ve done dozens of appeals and with lots of experience it takes me days to create the final product that is an Appeal to the Divisional Court.  For many appeals it is too complicated and expensive a process.

I recommend an over-haul to appeal rules relating to Landlord and Tenant matters.  The process should still trigger an automatic stay of eviction on the filing of a Notice of Appeal.  However, that filing of the appeal should result in an automatic Order requiring the tenant to pay ongoing rent in full and on time and to file proof of payment with the Divisional Court registrar.  The landlord should on requisition to the Registrar be able to get an order lifting the stay if ongoing rent is not paid on time.

The Appeal process and hearing of the Appeal should be Court driven .  However, a three judge panel of the Divisional Court is too high a level of Court for most appeals.  The appeal should be to a single judge of the Divisional Court.  The Appeal should be heard as a “motion” on a regular list of the Superior Court with a Superior Court Justice putting on his Divisional Court hat for the purpose of the Appeal.

The Landlord and Tenant Board should prepare an extensive form laying out the traditional/usual grounds of appeal that are normally pursued.  The landlord or tenant would then file the appeal form with the Landlord and Tenant Board and the Landlord and Tenant Board would file the Appeal with the Divisional Court after preparing a record (see below).  Various check boxes on the Notice of Appeal form and space to allow an explanation of the reason for appeal should be provided to the prospective appellant. .

The Landlord and Tenant Board would prepare a Notice of Stay (upon filing of the Appeal) and serve it on the Sheriff.   The Landlord and Tenant Board would collect the appeal fees charged by the Divisional Court.  The LTB would then prepare the “Record” of the proceeding (similar in the way the Federal Court Rules require an adjudicative body to deliver the record to the Federal Court in a Judicial Review proceeding).  The Landlord and Tenant Board would prepare a transcript of the proceeding (estimate the charge and charge it to the appellant before it is prepared) and prepare an appeal book with all of the exhibits and evidence that was before the Member.  

The Landlord and Tenant Board would then file the Notice of Appeal and the Record with the Superior Court/Divisional Court and set the matter down for a hearing before a Divisional Court Judge.  At that point the LTB is finished unless the LTB is intervening in the appeal.   The parties are served with a copy of the Notice of Appeal, the Record, and the Hearing date of the Appeal.   The parties are provided with a form advising that they can prepare a factum, book of other documents, evidence, whatever they would like to submit (no new evidence needs to be explained) and that they must serve it and file it with the Court by a certain number of days before the scheduled appeal.   Failure to comply and the implications of that are left in the discretion of the Judge scheduled to hear the appeal.

I think the foregoing would be highly effective in moving appeals forward–quickly and efficiently while preserving the importance of getting appellate authority on important issues within residential Landlord and Tenant law relationships.   The key is having the system drive the process and not require or rely on the parties to take action to move an appeal forward.  The present injustice is largely in the ability to file an appeal and sit back and do nothing without much consequence.


3.1     Proposal: Explore whether to allow landlords to terminate a tenancy based on violation of no-smoking provisions in tenancy agreements.

Comment:     Medical marijuana is the next big problem.  Tobacco is fairly easy as are e-cigarettes and breaching a non-smoking clause does in fact lead to evictions as the contracted ground of “non-smoking” is a lawful right interest or privilege.  A breach is enforceable through the N5 and as long as the prohibition of the behaviour can be shown to be rational/reasonable then eviction follows. Hence it is enforceable in current RTA.  What would be useful is a clarification of what is meant by “lawful right interest or privilege” with an indication that lawful rights include contracted terms in lease agreements that are not otherwise voided by the RTA.

Medical marijuana is a growing issue as neighbours are bothered by the smell and the second hand smoke of medical marijuana is bothering neighbours and landlords.  Tenants with authorizations claim smoking it is a right.  Getting them to go outside or smoke at a window is not too difficult in the summer—but the winter is a real problem as they don’t want to go outside when it is very cold and hence they smoke inside.   Balance the right to medicine, duty to accommodate (HRC) and the right of others to not have to breathe marijuana smoke.

4.1     Proposal: Allow emailing of certain landlord and tenant notices, upon consent of both


Comment:     Landlord and Tenant Board hearing rooms are not equipped to deal with electronic forms of evidence.  What if the form, notice, does not comply with the RTA.  How does a tenant prove the non-compliance in a Board hearing, how is the evidence of the notice or form that was actually sent produced into evidence?  In printing the document that was electronically sent there is the possibility of manipulation of the form/notice just by the program, printer, etc..  In circumstances where the form or notice becomes an issue the lack of a hard paper copy is going to make hearings very difficult.   Adjudicators will be asked to look at smart phones, tablets, laptops and none of those documents will form part of the record.  We need paper until the Board can receive electronic forms of evidence.
PART II: RENT INCREASE GUIDELINE REVIEW

Comment:     The rent increase guideline formula is becoming increasingly irrelevant as the number of exempt units from rent control increases.   The rent increase guideline formula needs to bring into its application rental units that are otherwise exempt under section 6(2).  To encourage development and building rental units the exemption is fair to maintain but I think the exemption should be capped at 15 years.  After 15 years those exempt units should be subject to the rent increase guideline.   Amend section 6(2) to be a sliding time-line.   Landlords are realizing that the exemption can be used for eviction purposes contrary to the security of tenure philosophy underpinning the RTA.



These are my comments on the proposed amendments.

___________________________
Michael K. E. Thiele


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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.