More Abuse of Our Justice System by Residential Tenants
I’ve written a number of posts lately about tenants who abuse the system and the calls from the judiciary to have our tenancy laws reformed. A decision released two weeks ago is another all-to-familiar another example of how residential tenants can game the system to their advantage.
The tenant entered into a one year lease agreement with the landlord on July 15, 2015. He took possession of the unit on July 20, 2015. He paid his first and last month’s rent but did not make any of the other rental payments (which were to be $1,400 per month).
This tenant in this case was “proactive” (if you will) and brought his own application to the Landlord and Tenant Board asserting that the landlord damaged his possessions and harassed the tenant. The purpose of this application was to set-off against the rental arrears that were owed.
The tenant failed to attend the Case Management Hearing for the application that he had initiated and his application was dismissed as abandoned on November 17, 2015.
The landlord’s application in respect of the rental arrears was put over to December 18, 2015 and then again to January 15, 2016 and once more to February 23, 2016.
The tenant did not attend the hearing on February 23, 2016 and the Board ordered the tenant to pay the arrears by March 3, 2016 failing which the landlord would be permitted to file the Termination Order with the Sheriff to have the tenant evicted.
The tenant did not pay the arrears and was served with the Termination Order on March 4, 2016. Instead of vacating the unit the tenant filed a Notice of Appeal on March 10, 2016 which automatically served to stay the pending eviction.
On March 22nd the landlord’s lawyer advised the tenant that the landlord would be bringing a motion to have the appeal quashed and asked the tenant to provide dates in March and April for the motion. The tenant responded and indicated that his counsel was not available until the first week of May, 2016.
When the motion came up for a hearing on May 11th the tenant showed up (without counsel). The tenant claimed to have not received the motion materials and sought an adjournment, which was granted by the court and the matter was put over to May 24, 2016.
When the motion was heard on May 24, 2016 the landlord put forth evidence that this was the third case where this particular tenant had been involved in a landlord and tenant appeal following an eviction notice, allowing him to live rent free before the Appeal was quashed.
The court found that the tenant’s pending appeal had no merit and quashed the appeal and lifted the stay of the eviction order. Although the landlord sought partial indemnity costs of $7,500, the court only awarded the landlord $5,000 in costs.
All in all, the tenant was able to live rent free for 10 months, at a cost of at least $14,000 to the landlord.
There are 1.3 million tenant households in Ontario.
The Federation of Rental Housing Providers in Ontario reports that the vast majority of tenants pay their rent in full and on time and that only 1.5% of tenants ever avoid payment of the rent they contracted to pay.
The United Way Toronto reports that 36% of tenants experience three or more major repair issues every twelve months.
There are about 81,000 applications filed with the Landlord and Tenant Board each year.
Last year, this resulted in 83 appeals to the Divisional Court – that’s landlord AND tenant appeals.
Yet articles and commentary like Matt Maurer’s “More Abuse of Our Justice System by Residential Tenants” dominate the popular press. In the face of real statistical evidence, I will leave it to your readers to figure out who is abusing whom in the world of landlord and tenant law.
British Columbia has a system that seems much better balanced than Ontario’s; tenants have the rights they need without the impunity that Ontario’s system provides them: http://canlii.ca/t/84lm.
Wistful landlords tell me that the Alberta system is good and harsh against tenants but I don’t understand that you want the pendulum to swing quite so far.
So you are using one case example to indict an entire system? By that logic, there are also cases of landlords interfering with their tenants’ rights, file appeals against orders in favour of tenants to drag the case out, and refuse to do maintenance and repairs even if ordered by by-law officers. The system doesn’t exactly act quickly for tenants in those cases either. Reform should also focus on expediting enforcement and penalties against landlords for not doing what they are supposed to do. It’s not a one-way street.
But surely saying that the system is also abused by landlords is not a particularly thoughtful response to an article pointing out – fairly – that the system can be and is abused by tenants. The system should be changed to address both problems.
Karen,
If I accept your numbers, you’re saying there are roughly 20,000 tenants each year who avoid payment of their rent (1.5% of 1.3 million). On that basis, they presumably account for one of four of the 81,000 applications to the landlord and tenant tribunal every year. That’s what your “real statistical evidence” is saying.
While an individual case study is anecdotal at best, what I would like to see is a comprehensive review of the cases that were brought before the LTB.
This way we could identify the key areas of reform. I suspect that there will be areas of reform for both sides. I find it is unheartening when individual cases are used to try to weaken the protections that are afforded to often disadvantaged tenants. While there will always be individuals trying to abuse the system, on both sides, we must find ways to address this without further unbalancing the powers between landlords and tenants.
While an individual case study is anecdotal at best, what I would like to see is a comprehensive review of the cases that were brought before the LTB.
This way we could identify the key areas of reform. I suspect that there will be areas of reform for both sides. I find it is unheartening when individual cases are used to try to weaken the protections that are afforded to often disadvantaged tenants. While there will always be individuals trying to abuse the system, on both sides, we must find ways to address this without further unbalancing the powers between landlords and tenants.
All,
This is not a single case or isolated case. There have been a number of cases like this recently and a number of judges have called for tenancy reform.
I’m not suggesting that there are not some landlords who take advantage of tenants as well. However, I don’t see how that has any bearing on whether or not changes should be made to prevent shady or “professional” tenants from living rent free for many months at a time due to glaring deficiencies in the system.
Sure there are “professional tenants.” I’ve had to deal with several when I was in private practice and later as tenant duty counsel. Bad apples on both sides. To lean against tenants without giving the stink eye to bad landlords is mendacious at best. Some municipalities are licencing landlords and using that to punish them should they fail to maintain their properties. I say hooray to that. I have one bad apple with many properties who never fixes his properties. He has had to pay $100Ts of fines, but he continues on. His complaint to me is I am “interfering” with his control of his tenants. What about the landlords who never give written notices and feel free to enter the tenant’s premises willy-nilly. What about the landlords who don’t care a whit about the LTB, but will arrive at a tenant’s premises, kick in the door and haul all the tenant’s items to the curb. A recent landlady kicked my female client in the shins, had her agent sneak in thru the bathroom window next day to then drag out the fridge, remove the stove fuses and then remove the toilet. The landlady then “moved in” to the house in one of the rooms. At 10 pm she then kicked in the door leading to my clients’ rooms, screaming at them to get out asap. I was at the premises when this last event happened. New Landlord immigrants using “homeland” rules to defy the Act are the worst.
The bearing, Mr. Maurer, is that any such changes will surely come at the expense of tenants who are neither “shady” nor “professional” but do require access to justice (including appeal, as necessary) before being turfed from their homes.
The suggestion that any one case justifies change – whether from a judge or yourself – is premised on the assumption that the adverse consequences of such change would be less important, and ignores how many might be adversely affected. (That’s perhaps why judges are judges and you are you, and neither are elected to consider such things).
Turning to your selected case of 10 months of non-paynent before enforcement of eviction, do tell: how long does it take the bank to obtain and enforce a writ of possession when a homeowner defaults on the mortgage? On average? Longest time at say, mean plus two standard deviations? Ballpark? How about the time it takes for property tax arrears to result in forced sale by a municipality?
Maybe that would put this 10 month period in context, relative to other Canadians who fail to meet their home-secured financial obligations and yet somehow remain housed.
SWT-88659-16
not in canlii yet order issues Nov 21, 2016
a great read
waste of landlord time/money and tax payers dollars. Order issued – Dismissed/Frivolous
Tenant alleging mold asking for $25,000
No mold report, no air quality tests, no tape test, no detailed inspection report?
Just a weak Dr.s Note