Eviction Operations Continue to Resume

One of the greatest concerns of the economic impacts of the COVID-19 pandemic was that individuals who could not pay rent would be evicted from their homes, and many would be left homeless. Aside from the important social and moral significance of increased homelessness, there are important public health considerations as well.

For example, Perri et al. recently described in the Canadian Medical Association Journal how there is an increased risk of infection of COVID-19, as well as a higher risk of worse outcomes given the existence of comorbidities.

Ontario implemented a suspension of regular court proceedings, based on an order by the Chief Justice on May 13, 2020, which was followed by an order on March 19, 2020, suspending the eviction of residents from their homes, subject to leave of the court for safety or health reasons. Landlords were understandably frustrated by the move, but it was an important public health measure to contain the spread of the virus.

On July 6, 2020, this order suspending evictions was varied, to be suspended only until the end of the calendar month of the declaration of a state of emergency under s. 7.0.1(1) of the Emergency Management and
Civil Protection Act. Given the province’s reopening plans, that would mean that evictions could then resume again after the long weekend, on Aug. 4, 2020.

This variance occurred as a result of the Attorney General moving before the Chief Justice, and was done so on an ex-parte basis against “unknown persons,” and was therefore styled, “Attorney General for Ontario v Persons Unknown.” A motion was brought immediately prior to the August long weekend, with a decision released on Aug. 2, 2020 by Justice Myers. The motion was brought by a number of parties, some of whom claimed to represent these unknown persons whose rights would be affected.

Justice Myers denied the motion for a stay of the July 6, 2020 order, applying the 3-part RJR Macdonald test. Despite the serious issues faced by tenants being evicted, the balance of convenience did not appear to be before the court on the variance order,

[33] …I do not believe that this is an issue for the court nor an issue that was properly before the Chief Justice. Questions of how the Province should battle the pandemic and the necessary policy choices among competing views – all good, decent, and honestly-held – are for the government. The Chief Justice never embarked on a legal determination of whether Ontario should stop residential evictions because the danger to some vulnerable tenants outweighed the risks to landlords…

[34] The Chief Justice’s task was much more limited. As discussed above, the Chief Justice was called upon to exercise the inherent jurisdiction of the court to control its own process. He was not exercising the government’s emergency powers. He was ordering the court’s officers to stand down while the court’s operations were suspended, “for the health
and safety of Court Services Division Enforcement Officers” and to avoid the Court’s operations increasing the risk of community spread of COVID19. The Chief Justice had no wider jurisdiction to regulate the societal
response to the pandemic. He was exercising a Superior Court judge’s jurisdiction to control the court’s processes and nothing more.

Instead, the motion risked drawing the judiciary into the political arena, and would draw in issues that were not before the court on this order.

That does not mean that there will not be any legal challenge of the exercise of government power in this way. On July 29, 2020, Toronto’s City Council voted to legally challenge Bill 184, likely on the grounds of procedural fairness. The Bill, which amends the Residential Tenancies Act, 2006, and allows for ex-parte orders of evictions, where a landlord and tenant have entered into an agreement, and the tenant has breached that agreement.

In my submissions on Bill 184 to the Standing Committee on Social Policy I stated,

64. Sections 206(3) and 206(3.1) of Bill 184 allow the LTB to include in a s. 206(1) order that a landlord may make a s. 78 application for eviction for non‐compliance with an order. This effectively removes the right of a tenant to appear before the LTB prior to an eviction based on an alleged breach of a settlement agreement. The existing protections under s. 206(3), which prohibit a tenancy from being terminated before a hearing before the LTB or allowing s. 78 applications to be included in an agreement to settle, ensure that the LTB plays an important role with regards to parties following settlements, but also that they do not engage in bad faith behaviour following a settlement. The provisions under s. 206(5), for example, allow for a party to reopen an application within 30 days, if a party “coerced them or deliberately made false or misleading representations,” also highlighting the important role the LTB plays in ensuring good faith settlements.

The concern with the current process includes the potential of landlords making false representations about the law to tenants, applying pressure or coercion, or otherwise engaging in improper tactics to obtain a settlement. They could then use a breach of that settlement to evict a tenant, without the tenant ever having an opportunity to challenge the eviction.

A pandemic seems to be an unusual time to introduce a fast-track process for evictions. While this particular challenge may not have been successful, future legal action may raise additional concerns about the propriety of increasing homelessness at this crucial time.

 

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