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Ontario Landlord and Tenant Board - Order to Pay Arrears

March 7, 2022

Ontario

,

Canada

Issue

In what circumstances can a landlord evict a residential tenant for non-paymebt of rent?

Conclusion

Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time. (S.83(1))

If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). (s.83(2)) (Residential Tenancies Act)

In TSL-81945-17 (Re), Ontario's Landlord and Tenant Board ordered the Tenant to pay their rental arrears on a payment schedule. In this case, the Tenant's rent was due on the 20th of the month. Evidence produced by the parties indicated that the Tenant was in arrears for four months of rental payments. Upon considering the circumstances, the Board arranged a payment schedule, allowing the Landlord to apply without notice for eviction if the Tenant failed to make any of the payments.

In TEL-63400-15-RV (Re), Ontario's Landlord and Tenant Board cancelled their previous order and replaced it with a new order, after receiving evidence from the Tenants with regards to the date of returned vacant possession. In this case, the Tenants had failed to pay rent for three months. The Landlord served a Notice of Termination. The Tenants then moved out of the unit, and the Landlord failed to verify this before the hearing to determine arrears. The order to pay arrears therefore included rent for a period after the date on which they had moved out. As the evidence showed that the Tenants had moved out following their Notice of Termination, the total arrears owing was adjusted to reflect that reality.

In CEL-18579 (Re), Ontario's Landlord and Tenant Board ordered that the Tenant pay the rent in full and on time for the period of one year, as well as pay the Landlord's costs for the application fee for the hearing. In this case, the Tenant had failed to pay the rent on the first of the month for seven months in a row. The Landlord applied for an order to terminate the tenancy and evict the Tenant. Upon review, the Board ordered that the rent be paid on time, and allowed for the Landlord to apply under s.78 of the Residential Tenancies Act without notice to the Tenant for an order terminating the tenancy and evicting the Tenant if they failed to comply with the provisions of the order.

In TEL-42868-13 (Re), Ontario's Landlord and Tenant Board ordered that the tenancy between the Landlord and Tenant be terminated due to the Tenant's non-payment of rent. In this case, the Landlord made several applications. Errors in their Form N4 which rendered it defective, and the associated L1 application for arrears of rent and termination of the tenancy therefore could not proceed. The Landlord similarly failed to establish, on a balance of probabilities, that he had a genuine intention to move into the rental unit, and the L2 application also failed. However, the evidence showed that the Tenant had repeatedly failed to pay the agreed-upon rent to the Landlord in full and on time, and the tenancy was terminated on those grounds.

Law

Section 83(1) and (2) of the Residential Tenancies Act, 2006, SO 2006, c 17 describes the discretion of the Powers of the Board when reviewing eviction applications:

83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time.

(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).

In TSL-81945-17 (Re), 2017 CanLII 28770 (ON LTB), Ontario's Landlord and Tenant Board ordered the Tenant to pay their rental arrears on a payment schedule. In this case, the Tenant's rent was due on the 20th of the month. Evidence produced by the parties indicated that the Tenant was in arrears for four months of rental payments. Upon considering the circumstances, the Board arranged a payment schedule, allowing the Landlord to apply without notice for eviction if the Tenant failed to make any of the payments:

13. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction subject to the condition(s) set out in this order pursuant to subsection 83(1)(a) and 204(1) of the Act. The Tenant has a school-aged child and indicated that she cannot pay the whole amount of arrears at once.

14. At the hearing the Landlord’s representative requested an order that the Tenant be required to pay costs to the Landlord for the delay caused by the Tenant retrieving her banking information. The banking information that the Tenant subsequently submitted at the hearing was partially irrelevant (the Landlord did not claim arrears for December 2016) and partially ineffective (the Landlord’s evidence showed that, even though the November 2016 cheque had been negotiated, the Tenant later put a stop payment on it). The Tenant submitted that it was not clear to her that the Landlord was not claiming arrears for December 2016. I accepted this submission from the Tenant: because the rental period begins mid-month, it is difficult to discern which month to which each rental period is to be attributed. As the Tenant’s confusion is reasonable in the circumstances, there will be no order as to costs.

It is ordered that:

15. The Tenant shall pay to the Landlord $9,775.00, which represents the amount of rent owing up to April 19, 2017 and the application fee.

[...]

17. If the Tenant fails to make any one of the payments in accordance with this order, the outstanding balance of any arrears of rent and costs to be paid by the Tenant to the Landlord pursuant to paragraph 15 of this order shall become immediately due and owing and the Landlord may, without notice to the Tenant, apply to the Board pursuant to section 78 of the Act for an order terminating the tenancy and evicting the Tenant and requiring that the Tenant pay any new arrears, NSF fees and related charges that became owing after April 19, 2017. The Landlord must make this application no later than 30 days after the Tenant’s failure to make a payment.

In TEL-63400-15-RV (Re), 2016 CanLII 72143 (ON LTB), Ontario's Landlord and Tenant Board cancelled their previous order and replaced it with a new order, after receiving evidence from the Tenants with regards to the date of returned vacant possession. In this case, the Tenants had failed to pay rent for three months. The Landlord served a Notice of Termination. The Tenants then moved out of the unit, and the Landlord failed to verify this before the hearing to determine arrears. The order to pay arrears therefore included rent for a period after the date on which they had moved out. As the evidence showed that the Tenants had moved out following their Notice of Termination, the total arrears owing was adjusted to reflect that reality:

THE LANDLORD’S APPLICATION FOR NON-PAYMENT OF RENT

7. The real issue here is with respect to the legal concept of vacant possession. The Tenants acknowledge no rent was paid for the months of August, September and October, 2015. Because of the arrears, the Landlord served a Notice of Termination effective October 14, 2015.

8. The Tenants’ position is that they should not be held liable for the rent for the period after November 1, 2015, because the Landlord was seeking to evict them, they agreed to move out, and they returned vacant possession to the Landlord on or before that date.

9. The Board’s Interpretation Guideline # 11 Eviction for Failure to Pay Rent says in part:

In some cases, the evidence may establish that the tenant moved out of the rental unit after the application was filed, but before the hearing date. In that case, the Board's order will generally include a determination that the tenancy ended on the date the tenant moved out. Further, the order will generally: (1) end the tenancy effective the date the tenant moved out of the rental unit without ordering enforcement through the Sheriff's Office; and (2) require the tenant to pay arrears up to the date specified in the termination notice, and lump sum compensation for use of the unit from the termination date in the notice to the date the tenancy ended. Unlike orders for arrears and termination where the tenant is in possession of the unit on the hearing date, the order would not provide the tenant with an opportunity to continue the tenancy by paying all of the arrears by a specified date. Moreover, as there is a finding that the tenancy has ended, the tenant's rent deposit and interest owing on it will be deducted from the arrears and compensation ordered to the landlord.

10. Although this Interpretation Guideline is not binding on us, this quotation above reflects the normal practice of the Board on an application like this one. We see no reason in this instance not to follow this normal practice.

11. Because the Board wants to know at a hearing if a tenant has moved out, this question is always put to landlords at a hearing where the tenant does not appear. In fact pursuant to Rule 33.1 of the Board’s Rules of Practice a landlord is mandatorily required to produce and file an update form that includes this information.

12. Because of this reality it is the normal practice of landlords to check a rental unit prior to coming to the hearing so that the landlord can attest to the fact of whether or not a tenant is still in possession of the rental unit.

13. The Landlord here says she did not do that. At the original hearing she informed the Board that the Tenants were still in possession because she had no knowledge they had moved out.

14. This is the point where the evidence of the parties diverges.

In CEL-18579 (Re), 2009 CanLII 46635 (ON LTB), Ontario's Landlord and Tenant Board ordered that the Tenant pay the rent in full and on time for the period of one year, as well as pay the Landlord's costs for the application fee for the hearing. In this case, the Tenant had failed to pay the rent on the first of the month for seven months in a row. The Landlord applied for an order to terminate the tenancy and evict the Tenant. Upon review, the Board ordered that the rent be paid on time, and allowed for the Landlord to apply under s.78 of the Residential Tenancies Act, 2006, SO 2006, c 17 without notice to the Tenant for an order terminating the tenancy and evicting the Tenant if they failed to comply with the provisions of the order:

3. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction subject to the conditions set out in this order pursuant to subsection 83(1)(a) and 204(1)of the Act. Reasons for this determination are attached to this order.

It is ordered that:

1. The Tenant shall pay the Landlord the full June 2009 rent and the $170.00 application filing fee on or before June 10, 2009.

2. The Tenant shall pay the Landlord the full monthly rent on or before the first day of each month for a twelve month period commencing July 1, 2009 through to and including June 1, 2010.

3. If the Tenant fails to make any one of the payments ordered in paragraphs 1 or 2, in full and on time, the Landlord may apply under section 78 of the Residential Tenancies Act, 2006, without notice to the Tenant for an order terminating the tenancy and evicting the Tenant. The Landlord must make this application no later than 30 days after the Tenant’s failure to make a payment.

In TEL-42868-13 (Re), 2014 CanLII 1736 (ON LTB), Ontario's Landlord and Tenant Board ordered that the tenancy between the Landlord and Tenant be terminated due to the Tenant's non-payment of rent. In this case, the Landlord made several applications. Errors in their Form N4 which rendered it defective, and the associated L1 application for arrears of rent and termination of the tenancy therefore could not proceed. The Landlord similarly failed to establish, on a balance of probabilities, that he had a genuine intention to move into the rental unit, and the L2 application also failed. However, the evidence showed that the Tenant had repeatedly failed to pay the agreed-upon rent to the Landlord in full and on time, and the tenancy was terminated on those grounds:

36. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. The Tenants have not provided a reasonable explanation for their repeated failures to pay the full rent to the Landlord by midnight on the 6th day of each month. The Tenants were not entitled to withhold their rent because they were dissatisfied with the Landlord’s response to their maintenance concerns, and they have not established that the late payments were due to the Landlord’s failure to make attempts to collect the rent. During the hearing, the Tenants provided no indication that they intend to correct their pattern of late and non-payment in the future.

37. However, in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), I find that it would not be unfair to postpone the eviction until March 5, 2014 pursuant to subsection 83(1)(b) of the Act. The Tenants have paid the last two month’s rent into the Board, and the Landlord is holding the Tenants’ last month’s rent deposit which can be applied to the period February 6, 2014 to March 5, 2014. Therefore, there will be no additional rent that becomes due prior to March 6, 2014. This delay will provide the Tenants with some additional time to find a new place to live.

38. This constitutes all of the reasons that shall be provided in this matter.

It is ordered that:

1. The tenancy between the Landlord and the Tenants is terminated. The Tenants must move out of the rental unit on or before March 5, 2014.

[...]

5. If the unit is not vacated on or before March 5, 2014, then starting March 6, 2014, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.

6. Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord on or after March 6, 2014.

Alexsei publishing date:
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