How Can a Tenant Be Evicted During the Covid19 Crisis?

The Moratorium Applicable to Residential Evictions May Be Lifted With Enforcement Granted In Situations Posing Significant Health and Safety Risks. The First Step In the Process Is to Obtain An Order to Evict Must Be Obtained From the Landlord Tenant Board.

A Helpful Guide For How to Determine Whether An Eviction Is Possible During the Covid19 Crisis

Eviction Notice Document Upon the escalation of the Covid19 Crisis, an Order was issued by the Chief Justice of the Superior Court implementing a moratorium suspending eviction enforcement for tenancies governed by the Residential Tenancies Act, 2006S.O. 2006, Chapter 17.  As described within the cases of Young v. CRC Self-Help, 2020 ONSC 1874 and Wilkinson v. Iyamu, 2020 ONSC 3890, the moratorium was implemented to assist with the safety and security of tenants as well as protection of society as a means to enable greater capacity and likelihood of tenants sheltering and complying with social distancing mandates and thereby reducing exposure to other people and thereby potentially mitigating the spread of, and affects of, the coronavirus.  As per the Order of the Chief Justice, an eviction may occur only by obtaining special permission granting an exception.  Applying for an exception must be done via urgent Application to the Landlord Tenant Board seeking an Order to Evict followed by an urgent motion to the court seeking permission to enforce the Order to Evict.  Specifically, the Order of the Chief Justice and the reasoning for the Order as per the cases of Wilkinson and Young state:

2.  THIS COURT ORDERS that, during the suspension of regular court operations by the Chief Justice, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended unless the court orders otherwise upon leave being granted to a party by the court pursuant to the court’s procedures for urgent motions.

[4]  The Chief Justice’s order allows exceptions to be made if leave (or permission) is sought under the court’s procedures for hearing urgent matters while the courts are not operating fully as a result of the pandemic. The applicant has followed this procedural path.

[5]  The board has already found that grounds exist to justify an urgent eviction. The reason this case is before me is not to review the decision of the board. Rather, it is to decide if the landlord has made out a sufficient case to allow the eviction of the respondent in light of the pandemic. Diaz v Kubinec, 2020 ONSC 3706.

[6]  Evicting tenants from the places at which they have been sheltering during the pandemic might expose them to increased risk of catching the virus. In addition, the need for tenants to move may involve significant interactions with others as tenants find and physically move to alternative lodgings. Some tenants may not have places to go. The court is therefore engaging in a balancing process; weighing the risks to the landlord and other tenants if the tenants stay, against the risk to the tenants and to the public if the they are evicted.

[57]  It is important to emphasize that this motion was brought in the context of the COVID-19 pandemic. On March 20, 2020, Chief Justice Morawetz made an order suspending the eviction of all tenants from their homes in Ontario unless an order is obtained from the Court allowing the eviction.  In addition, the Board itself has suspended all eviction hearings, except for hearings dealing with urgent issues such as illegal acts or matters of impairment of health. On their own, these two initiatives make clear that these are not ordinary times and that everyone has an interest in having a home that allows them to stay healthy and assist in preventing the spread of the virus.

In another case, being the matter of Chalich v. Alhatam, 2020 ONSC 2569 the Divisional Court heard a motion seeking relief from the eviction moratorium.  In the Chalich case an Order to Evict existed prior to the moratorium Order by the Chief Justice.  Further, the purpose of the Order was to ensure that a tenant would vacate so to comply with contract terms involving a real estate sale requiring that vacant possession of the property be provided to the purchaser.  In denying the relief, and thereby denying enforcement of the Order to Evict, the Divisional Court said:

[18] The landlord argues that the eviction moratorium should apply only to tenants who would otherwise be evicted for non-payment of rent, to protect those who have lost income because of COVID-19. I disagee. There are no limiting terms in the Chief Justice’s order, except for urgent motions. It is not limited to those cases where eviction is related to COVID-19 non-payment of rent; it is not restricted to new evictions arising after March 17th. It applies to all evictions. Given its breadth, the clear intent of the Chief Justice’s eviction moratorium was, during the pandemic, to prevent evictions even though the moratorium could be expected to cause significant economic disruption and adverse financial effects. The Landlord and Tenant Board has also suspended eviction hearings except for those dealing with urgent issues such as illegal acts or threats to health: Young v. CRC Self-Help, 2020 ONSC 1874 (CanLII), para. 57. True emergencies will be dealt with. But the primary interest protected is ensuring that everyone stays home and stays healthy during the lockdown period.

Accordingly, it appears clear that the courts are indeed willing to provide relief from the eviction moratorium only in cases involving illegal conduct or posing safety or health risks and that the potential for significant financial harm is insufficient.

Requires an Order of Eviction

Furthermore, whereas an Application may be brought to the Superior Court via Rule 60.17 of the Rules of the Civil Procedure to seek leave to evict, an Order to Evict must first be obtained from the Landlord Tenant Board.  As was explained succinctly by the Superior Court in the case of Rabczak v. Dunford, 2020 ONSC 3031, the Landlord Tenant Board holds exclusive jurisdiction, as per section 168(2), for all matters governed by the Residential Tenancies Act, 2006; and accordingly, an Order to Evict, for qualifiying tenancies, must be issued by the Landlord Tenant Board prior to an Application to the Superior Court for a lifting of the moratorium on enforcement of evictions.  Essentially, the Superior Court stated that a lifting of the moratorium on enforcement of an eviction is available only where there is first an eviction to enforce.  Specifically it was said in Rabczak that:

[1]  The applicants ask to bring an urgent application pursuant to the Notice to the Profession dated March 15, 2020.  The proposed application seeks leave to evict residential tenants despite the moratorium on residential evictions ordered by the Chief Justice of this court in Attorney General of Ontario v Persons Unknown (unreported, Ont. S.C., March 19, 2020).

[2]  An application for leave to enforce an eviction of a tenant under the terms of the moratorium may be brought as a request for directions under Rule 60.17 of the Rules of Civil Procedure, RRO 1990, Reg 194. See: Morguard Corporation v Corredor, 2020 ONSC 2166 (CanLII).

[3]  However, the landlords have not obtained an order evicting the tenant from the Landlord and Tenant Board. They ask this court to grant an eviction order in light of the urgency of their situation.

[4]  I decline to schedule the proposed application. This court does not have jurisdiction to grant the order sought. The question of whether a landlord may evict a residential tenant is solely within the jurisdiction of the Landlord and Tenant Board under s. 168(2) of the Residential Tenancies Act, 2006, SO 2006, c 17.

[5]  An order for directions to enforce an eviction despite the moratorium ordered by the Chief Justice presupposes that there is already a valid eviction order. Under s. 85 of the Residential Tenancies Act, 2006 an eviction order made by the Landlord and Tenant Board is enforceable by a writ of possession in this court. An application or motion for directions under Rule 60.17 relates to the enforcement of a writ. But there is no writ of possession available until a landlord obtains an eviction order from the Landlord and Tenant Board. This court has no authority to order the eviction of a tenant despite the applicants’ plea of urgency.

...

[16]  In other words, the Legislature requires the board to consider the fairness to the parties in their particular circumstances in every case in which an eviction is requested. Moreover, the discretion to decide the  fairness question on the parties’ particular facts is specifically for the board. It is not an issue delegated to the court. See: 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 (CanLII) at para 31.

[17]  According to the website of the Landlord and Tenant Board, it is open for urgent proceedings relating to safety. That appears to be a basis asserted in the applicants’ proposed proceeding.

[18]  While the applicants are correct that if they wish to enforce an eviction in light of the moratorium in force in Ontario today, they will need leave of the court. However, before asking the court for leave to enforce an eviction order, they first need to obtain an eviction order to enforce. That can only be done at the Landlord and Tenant Board.

As explained, the Superior Court is only able to lift the moratorium to allow an eviction where there is first an Order to Evict.  Without first obtaining an Order to Evict from the Landlord Tenant Board, seeking an Order to lift the moratorium against enforcement of an Order to Evict is premature.

Eviction Ordered

In the case of Neumann v. Anderson2020 ONSC 3518, an eviction with lifting of the moratorium was ordered.  The case involved an eviction Order previously issued by the Landlord Tenant Board.  The landlord, and spouse, were needing to move into the rental unit for 'own use' purposes.  In granting the lifting of the moratorium, and thereby issuing an Order to allow enforcement of the eviction, the court noted that the landlord, and spouse, are front line workers within a hospital and are requiring a 'home' to enable social isolation.  The court also noted that the tenant failed to provide any evidence that the risks to society would be greater or equal if the tenant were evicted.

In the case of Diaz v. Kubinec, 2020 ONSC 3706, the eviction moratorium was lifted when it was shown that the tenant, living in a basement apartment, was using marijuana within the residence wherein the heating and ventilation system was shared thoughout the house.  The landlords, living upstairs, both suffer from respiratory illness and the tenancy had a prohibition against smoking within the residence.  Despite the prohibition, the tenant engaged in smoking and the male landlord (husband) suffered a respiratory attack in April, was taken to hospital, and later died.  The female landlord (now widowed wife) also suffers respiratory issues.  In granting the lifting of the eviction moratorium, the court took into consideration the serious health effects to the landlord as well as the presence of oxygen tanks within the premises that presented a heightened safety.

In the case of Jing Yu Holdings Ltd v. Boudens, 2020 ONSC 4266, an eviction was permitted with the moratorium lifted where the tenants were found by the court as engaging in the unsafe keeping of python snakes.   Additionally, threats and racial slurs were apparently uttered toward the landlord such as that a toxic and hostile environment was viewed as to present a potential safety risk.

Specifically, within the Neumann, Diaz, and Jing Yu, cases, where safety and health issues were addressed as the turning points significant enough to warrant lifting of the moratorium, the court said:

[56]  In answer to a question from the court, the applicant advised that he and his spouse both work in the maintenance department of Brantford General Hospital and, in the course of their duties, they are routinely required to access spaces occupied by patients. They may therefore be considered to be front-line workers in the hospital, with an elevated risk of contracting COVID-19 during the pandemic, and a corresponding need to self-isolate as they have been doing. The applicant also responded that he is not aware that any persons other than the respondent reside in or occupy the Unit.

[57]  Although these facts were not contained in the applicant’s supporting affidavit, in my view, it was necessary that the court be provided with this information to carry out an informed review of the relevant circumstances.

[58]  It is noted that the applicant entered into the APS for the sale of his and his spouse’s residence after the imposition of the Eviction Moratorium and did not lead evidence that he made any efforts to seek an extension of the closing date of May 21, 2020 from the purchaser. On the authority of Chalich v. Alhatam these factors may suggest that the applicant’s position is speculative. However, it is noted that the loss which the landlord sought to avoid in Chalich was purely economic and the landlord did not seek the premises for his own occupation. Moreover, the tenant in Chalich led evidence of the impact of his eviction on the societal interests supported by the Eviction Moratorium and the court carried out a balancing exercise between the landlord’s evidence and the tenant’s concerns. In contrast to the present case, Kristjanson J. noted at para. 28 that the tenant had been paying the money ordered by the LTB and had actively sought alternative accommodation. She concluded that “the clear intent of the moratorium is to protect tenants in exactly the kind of situation [the tenant] is in.

[59]  In the case at bar, the respondent, by leading no evidence, has, in my view, failed to discharge the evidential burden on her as described above; hence, no balancing of the relative impacts on societal interests is possible.

[60]  It can be inferred that the respondent wishes to remain in the Unit. However, there is no evidence that she needs to reside in the Unit to further the societal objectives of the Eviction Moratorium. There is also no evidence that the respondent would experience any specific difficulty in finding alternate accommodation. Although I can take judicial notice that the pandemic presents challenges to those seeking housing generally, there is no basis on the evidence to infer that it would be more difficult for the respondent to find alternate housing than for the applicant and his spouse. There is also no basis to infer, in the absence of evidence from her, that the respondent’s failure to pay the arrears of rent and ongoing rent is as a result of economic hardship.

[61]  On the basis of the foregoing I find, after considering the evidence before the court, that it is appropriate in the unique circumstances of this case to permit the eviction to proceed pursuant to the Eviction Order of the LTB.

[15]  Balancing the risk to the public of evicting tenants in this state of emergency against the risk to the applicant and others in the house, I conclude, like the Landlord and Tenant Board, that this is a case where the eviction order should be enforced. The uncontradicted written evidence before me is consistent with the evidence summarized by the Landlord and Tenant Board in its decision, which it reached following a hearing at which the tenant participated. Although this is not a review of the Board’s decision, the reasons given by the Board are, on their face, reasonable, and support my conclusion. The tenant continues to violate the strict prohibition on smoking in the house which creates safety concerns given the presence of oxygen tanks and the vulnerable state of the applicant’s health. The immediate risk to the applicant and others outweighs the risk to the public if the tenant must find other accommodation at this time. And while I accept that the burden is on the applicant to satisfy me that an exception to the Chief Justice’s order should be made, the respondent has not filed any evidence that the eviction will put him in an untenable situation in which he will pose a particular risk to the public beyond that of anyone else required to move residences.

[45]  In addition to any issues arising from the snakes in Ms. Boudens’ apartment, Mr. Lu has expressed fears for his safety due to his interactions with Mr. Salisbury. I have already reproduced the text that Mr. Salisbury sent to Mr. Lu on June 25.  Mr. Lu testified that, on June 28, Mr. Salisbury told him that he knows where he lives, that he would look for him and that he would sexually assault him and other members of his family.  He produced voice messages, which I accept were recorded by Mr. Salisbury, containing other threats and racial slurs.  Finally, Mr. Lu filed a news release from Ottawa Police Services on June 30, 2020, stating that Mr. Salisbury had been arrested on a range of criminal charges the day before, after allegedly pointing a firearm at a security guard in the neighbourhood.  Mr. Salisbury was arrested at Ms. Boudens’ apartment.

[46]  Ms. Boudens admitted that Mr. Salisbury had been arrested but pointed out that none of the charges had been proven. She also said that Mr. Salisbury is no longer living with her. I do not find these reassurances very satisfying.  The tone and content of Mr. Salisbury’s statements to Mr. Lu give rise to legitimate concerns for his safety, whether or not Mr. Salisbury continues to live at the apartment or is found guilty of the criminal charges he now faces.

Accordingly, it does appear that where the court views that society is placed at greater risk by failing to grant a lifting of the moratorium, the moratorium should be lifted and an eviction should be allowed to proceed.

In another case being, Desgranges v. McCluskey, 2020 ONSC 3754, there was evidence indicating that the premises was used dangerously without social distancing, appeared that there was drug use upon the premises, and appeared that there was wilful damage to the premises, an eviction was ordered and the moratorium lifted so to allow enforcement of the eviction order.  Specifically it was said:

[11]  In Young v. CRC Self-Help, 2020 ONSC 1874 (Div. Ct.), at para. 57, Favreau J. noted that the Chief Justice’s moratorium on evictions and the LTB’s suspension of eviction hearings other than those dealing with urgent issues such as illegal acts or matters of impairment of health “make clear that these are not ordinary times and that everyone has an interest in having a home that allows them to stay healthy and assist in preventing the spread of the virus.”

[12]  In Neumann v. Anderson, 2020 ONSC 3518, Broad J., considered the case law that has developed in the wake of the eviction moratorium and identified the following principles:

a)  the intent of the Eviction Moratorium is to prevent evictions during the pandemic even though it could be expected to cause significant economic disruption and adverse financial effects. Thus, evidence of significant economic hardship to the landlord and resulting unfairness, viewed conventionally, will not by itself support an order that an eviction proceed;

b)  the interests served by the Eviction Moratorium are societal and directed towards the maintenance of existing shelter arrangements for individuals to assist in preventing the spread of COVID-19 during the pandemic;

c)  the Eviction Moratorium is not restricted to tenants who would otherwise be evicted for non-payment of rent in order to protect those who have lost income due to COVID-19 but applies to all evictions without limitation;

d)  on a motion to permit an eviction to proceed notwithstanding the Eviction Moratorium, the onus is on the landlord, as the moving party, to establish the existence of truly urgent and compelling circumstances which would justify overriding the societal interest that persons continue to shelter in place in order to prevent the spread of COVID-19, in the particular circumstances of the case;

e)  although the categories of urgent and compelling circumstances which may justify an order permitting an eviction to proceed are not closed, ordinarily they will involve illegal acts by the tenant or threats to health caused by the tenant; and

f)  a balancing of the concerns of the tenant and the landlord will be carried out primarily in the context of the societal objectives of the Eviction Moratorium directed towards the prevention of the spread of COVID-19 rather than focussing on economic disruption or economic hardship to the landlord, or conventional understandings of unfairness from a financial perspective.

[13]  I certainly accept, to quote Favreau J., that these are not ordinary times and that everyone has an interest in having a home that allows them to stay healthy and assist in preventing the spread of the COVID-19 virus. Despite the extraordinary times, however, there is no moratorium that favours willful damage to property. In deciding whether the eviction order should be enforced, as Broad J. noted, the court must consider the societal objectives of the eviction moratorium as they relate to the prevention of the spread of COVID-19. That a tenancy is being exploited for purposes which may actually promote the spread of the virus will weigh heavily in favour of enforcement of the eviction order.

[14]  Based on the evidence before me and the submissions of the landlord, I am satisfied that the scale in this case is tipped in favour of enforcement of the eviction. One night in April, in the midst of a pandemic, when no one would welcome a visit to a hospital emergency room, a large object was thrown from the tenant’s unit through its front window, smashing the glass. Glass shards were scattered across the front yard and the pathway leading to the building. The tenant did not contact the landlord. The landlord learned of the broken window and the glass from his brother, who happened to drive by the property the following morning. When the landlord arrived at the building later that day, none of the glass had been cleared away. Even if the shattering of the window had been an accident, the failure to notify the landlord or to pick up the broken glass is evidence of disregard on the part of the tenant for the welfare of those around her. A second window in the unit was also broken, without creating the same danger to the public, but also without the landlord having been informed. There is evidence that the tenant’s unit is being used for illegal activity. Further, the steady stream of people entering and leaving the tenant’s unit at all hours of the day and night, which continued unabated when the pandemic began, is evidence of the tenant’s indifference to the pandemic-related physical distancing expected of all citizens, to her own health and to the health of her visitors and everyone with whom they in turn come into contact.

[15]  The landlord was sworn and gave evidence at the hearing of the motion. He assured me that there are no children living in the tenant’s unit. He also suggested the tenant was intentionally avoiding this proceeding. He said she had told another tenant she was being evicted. He also said the envelope with his motion materials was still stuck to front door as of Saturday, June 13, 2020, even though he was aware that she had been in and out of the unit since he taped the envelope to the door on Tuesday, June 9, 2020.

[16]  For the above reasons, I make the following orders:

1.  The landlord’s motion is granted.

2.  The Court Enforcement Office (the Sheriff) is directed to proceed with the eviction of the tenant from the residential premises described in the May 28, 2020 LTB decision [Unit 1, 361 Iberville St., Ottawa (Vanier)] pursuant to this order and notwithstanding the order of Chief Justice Morawetz dated March 19, 2020 suspending eviction orders.

3.  The Court Enforcement Office (the Sheriff) is requested to expedite the eviction process and to give vacant possession of the unit to the landlord on or after June 16, 2020.

Interestingly, per the Wilkinson case above wherein an eviction Order was provided by the Landlord Tenant Board and a conditional Order lifting of the moratorium was provided by the Superior Court, the landlord was directed, as a condition of the lifting of the moratorium, to report the threatening and harassing conduct of the tenant to a crisis centre so as to assist the tenant in obtaining support services as well as for the collateral benefit of society.  In granting the conditional relief from the moratorium, the court specifically said:

[7]  In this case, the landlord has adduced evidence about the tenant’s behaviour that the board described as “unpredictable, aggressive, and violent.” The police have been called several times. The landlord has provided evidence of an incident in May in which the respondent made death threats and was physically violent with another tenant. The board concluded that allowing the tenant to remain in the rented premises until the end of the current emergency “puts the health and safety of other tenants at continued risk.

[8]  I have no qualms in finding that the landlord has made out a case that the risks to others in the house support enforcement of the board’s eviction order. However, if all that is necessary to obtain leave to enforce an eviction is to show that the landlord has good grounds to evict, then the Chief Justice’s order would have no content as that assessment is made by the Landlord and Tenant Board.

[9]  The point of the moratorium on evictions is to protect tenants and the public during the pandemic. As such, some assessment is required of the effect of the proposed eviction in light of the pandemic.

[10]  Unfortunately, Ms. Iyamu did not adduce any evidence for the hearing despite instructions provided in my triage endorsement and an exhortation that she seek legal advice.

[11]  However, there is some basis in the evidence to infer from Ms. Iyamu’s behaviour that she may have needs that require accommodation and assistance. Normally, a landlord is not responsible for a tenant’s wellbeing upon eviction. But these are not normal times. The effect of the pandemic on Ms. Iyamu and the public requires further consideration.

[12]  In my view, prior to evicting Ms. Iyamu, the landlord should be required to call a social services agency to seek its aid for her during her eviction. I would not stall the eviction for long. But I expect it will take some brief number of days for the sheriff’s office to carry out a residential eviction in any event. That would give a short time for government agencies to contact Ms. Iyamu and try to see to her wellbeing upon eviction. Regardless of whether she accepts any advice or help that might be offered, the court and the public will have some assurance at least that efforts are made to provide emergency assistance to Ms. Iyamu if she needs it and to protect the public during the pandemic by doing so.

[13]  It seems to me that the pandemic gives us all an enhanced obligation to care for each other. It is both appropriately compassionate and it is also in everyone’s self-interest to limit the creation of opportunities for the spread of the Covid-19 virus where possible.

[14]  Knowing that some effort will be made to provide a resource to Ms. Iyamu in case she needs assistance with the eviction provides the other side of the equation. With this condition, I can conclude that the eviction is appropriate in light of the pandemic.

[15]  Therefore, pursuant to the order of Morawetz CJOSCJ dated March 20, 2020, I grant leave to the applicant to enforce the Landlord and Tenant Board’s eviction order dated June 1, 2020. I direct the registrar to issue a writ of possession to the applicant and I direct the sheriff’s office to enforce the writ but not before Friday, June 26, 2020.

[16]  As a condition of granting this relief, I order the applicant to contact the Gerstein Crisis Centre at 416-929-5200 forthwith to seek its assistance on an urgent basis on behalf of Ms. Iyamu to provide for her eviction. He shall also provide whatever contact details he has for the respondent to the agency. This condition is satisfied just by making the call to advise the social service agency of the upcoming eviction, the respondent’s contact details, and the possibility that the respondent requires urgent services.

Summary Comment

Recent cases as heard by the Divisional Court via urgent motion make it clear that the courts will grant relief from the eviction moratorium only in cases involving serious unlawful conduct or presenting significant health or safety risks.  Even significant financial harm, such as the potential for litigation and losses arising from a breach of contract for failing to provide vacant possession to a buyer in a real estate deal is insufficient to outweigh the public interest in ensuring tenants may remain secure during the pandemic.  Lastly, prior to seeking permission from the Court to grant relief from the eviction moratorium, and therefore allow enforcement of an Order to Evict, there must first be an Order to Evict.  Obtaining an Order to Evict is the first step.  Obtaining an Order to allow enforcement of the Order to Evict is the next step.


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