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Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 6 - Early Landlord Termination for Cause
(01 September 2020)Caution
- Overview
- Illegal Acts
(a) General
(b) Notice Period
(c) Illegal Drug-Related Activities
(d) Expedited Evictions
(e) 'Illegal' Tenancies
- Safety
(a) General
(b) Notice Period
(c) Expedited Evictions
- Damage
(a) General
(b) Notice Periods
(c) "Remedial Oppourtunity" Notice of Termination and Eviction
. Overview
. First Contravention
. Second Contravention
. "Remedial Oppourtunity" Eviction Procedures
(d) "Severe Damage" Notice of Termination and Eviction
. Overview
. Expedited Eviction
. Comment
(e) Landlord's Application for Damage Compensation
- Substantial Interference with Reasonable Enjoyment
(a) Overview
(b) Notice Periods
(c) "Remedial Oppourtunity" Notice of Termination and Eviction
. Overview
. First Contravention
. Second Contravention
. "Remedial Oppourtunity" Eviction Procedures
(d) "Landlord as Neighbour" Terminations and Evictions
. Overview
. Expedited Eviction
- Overcrowding
(a) Overview
(b) Notice Period
(c) "Remedial Oppourtunity" Notice of Termination and Eviction
. First Contravention
. Second Contravention
. "Remedial Oppourtunity" Eviction Procedures
- Social Housing Income Misrepresentation
(a) Overview
(b) Notice Periods
(c) Compensation Orders
- Animals in the Premises
Preliminary Note
(a) Overview
(b) Restricted Causes of Termination
. Overview
. Behaviour
. Allergies
. Inherently Dangerous
. Comment
(c) "Unrestricted Causes" of Termination
. Overview
. Illegal Acts
. Damage
(d) Legal Duties towards Animals During the Termination and Eviction Process
Caution
Readers are cautioned that whenever they are dealing with an actual termination and eviction proceeding that it is important to review this program thoroughly. For instance, this chapter only deals with what are called "early terminations" or "early terminations for cause" - which can have dates of termination falling at any time after the required notice period has run (from the issuance of a Notice of Termination by the landlord).
Basic issues and concepts involved in such proceedings are covered in Ch.4: "Termination Fundamentals". Reading this present chapter alone would ignore that basic law, which is applicable to all terminations and evictions. As well, other types of termination and eviction proceedings are discussed in Ch.5: "Regular Terminations", Ch.7: "Non-Payment of Rent Termination", and Ch.8: "Other Termination Procedures". You must determine if those topics are relevant to your proceeding or not.
Further, anyone defending termination and eviction proceedings before the Board would be remiss if they did not also review Ch.9: "Board and Other Proceedings" to understand basic procedural aspects of handling a case before the Board, such as service of documents, disclosure of evidence, basic evidence rules, basic hearing procedure, etc.
You never know what other issues can crop up in a case. Anyone using this program for important things should devote the time and effort required to appreciate the law involved in their situation and the complexities that it can give rise to.
Note Re: Special and Exempt Premises:
Some residential rental premises - such as care homes, mobile home parks, land lease communities, student accomodation, superintendent's premises, social housing, premises under mortgage proceedings - and others - may be exempt from all or part of the Residential Tenancies Act, or may be subject to special RTA provisions. Readers may want to review Ch.2: "Special and Exempt Premises" to check if this is the case for their specific premises.
Note Re: Offences
Many breaches of the Residential Tenancies Act are also prosecutable offences. Readers may want to review Ch.17: "Offences" regarding specific breaches
1. Overview
This chapter explains what I call "early terminations for cause" by a landlord (and related application procedures) which give a date of termination at any time after the required notice period has run (after the issuance of a Notice of Termination). They are distinct from "regular terminations" [see Ch.5] which can only specify a date of termination at the end of a period or term of a tenancy (as the case may be).
As is also explained in Ch.4, all landlord terminations (unlike tenant-initiated terminations) must be based on some specific "reason" or "cause". The available reasons which can justify an "early termination for cause" tend to be based on allegations of bad behaviour of the tenant or occupants of the rental unit. "Regular terminations" tend to be based on things related to external circumstances or to the landlord's situation.
The specific reasons for termination and eviction proceedings discussed in this chapter include:- illegal acts on the premises;
- safety risk;
- undue damage to the premises;
- substantial interference with the reasonable enjoyment of the premises;
- overcrowding;
- social housing income misrepresentation.
Some of these "causes" of termination come in several different forms, depending on the seriousness of the situation.
Some of them also have seven-day "remedial oppourtunity" periods in which the tenant can remedy "first contravention" problems and thus avoid Board termination and eviction proceedings, followed - if necessary - by shortened notice periods on further "second contravention" terminations based on the related causes. These "remedial oppourtunity" provisions can be complex as the causes which trigger them can be of different types. For instance: a "first contravention" for "damage" (since remedied) may ground a "second convention" for "overcrowding" (several other combinations are possible).
2. Illegal Acts
(a) General
A landlord may issue early Notice of Termination on the allegation that "the tenant or another occupant of the rental unit commits an illegal act or carries on an illegal trade, business or occupation or permits a person to do so in the rental unit or the residential complex" [Act s.61(1)]. No conviction of a criminal or other offence is required in order for the Board to terminate or evict under this provision [Act s.75], instead the 'illegality' issue will be decided on the civil standard of "balance of probabilities" (which is: "more likely than not").
Form N6: Notice to Terminate a Tenancy Early - Illegal Act or Misrepresentation of Income
Note that when a Notice of Termination or termination/eviction proceedings is based in whole or part on the presence or behaviour of animals in the premises, specific restrictive termination criteria may (or may not) apply. In these circumstances readers should carefully review s.8: "Animals in the Premises".
As noted, the Board's perspective on the interpretation and application of the "illegal act" provisions of the RTA is set out in Interpretation Guideline 9: "Eviction for an Illegal Act or Business", linked below. There the Board makes it clear that, in its view, "illegality" refers to criminal or quasi-criminal offence-type violations rather than non-prosecutable civil or statutory illegalities, and that there should be some impact from the activities on the community. Anyone involved in such a case should review that Guideline carefully.
Interpretation Guideline 9: Eviction for an Illegal Act or Business
(b) Notice Period
The "normal" notice period for such a termination is (no less than) 20 days [Act s.61(2)(b)], however in the case of drug-related illegal activities the notice period is shortened to (no less than) 10 days [see (c) below].
However, note that a Notice of Termination based on an allegation of drug-related "illegal acts" - is one of the "second contravention" conditions discussed below regarding the "remedial oppourtunity" Notice of Termination procedures for causes of: "damage" [s.4], "substantial interference with reasonable enjoyment" [s.5] and "safety" [s.3]. This means that a Notice of Termination for drug-related "illegal acts" given within six months after an earlier "remedial oppourtunity" Notice of Termination under any of those causes allows the landlord to terminate using a (no less than) 14 day notice period [Act s.68(1)(b),(2)].
(c) Illegal Drug-Related Activities
Special provisions apply to terminations and evictions where the allegation of "illegal act, trade, business or occupation" is illegal drug production, trafficking or possession for the purposes of trafficking [Act s.61(1)(a),(3)].
These are concepts derived from Canadian narcotics control law. They are more specifically defined in the RTA as follows [Act s.61(3)]:- "illegal drug" means a controlled substance or precursor as those terms are defined in the Controlled Drugs and Substances Act (Canada);
- "possession" has the same meaning as in the Controlled Drugs and Substances Act (Canada);
- "production" means, with respect to an illegal drug, to produce the drug within the meaning of the Controlled Drugs and Substances Act (Canada);
- "trafficking" means, with respect to an illegal drug, to traffic in the drug within the meaning of the Controlled Drugs and Substances Act (Canada).
Controlled Drugs and Substances Act
These specialized criminal law terms are also discussed in Interpretation Guideline 9, linked above.
Given the close connection between the listed drug-related criminal offences and the "drug-related" causes of termination, it is likely (but not necessary) that most terminations using these special "drug-related" termination will also be conducted where charges have also been laid. In such cases tenants may wish to consult directly with criminal lawyers on these issues. Otherwise the law relating to the criminal charges is extensive and beyond the range of this Isthatlegal.ca Legal Guide.
As noted above, the 'first contravention' notice period for an illegal-drug related termination is (no less than) 10 days [Act s.61(2)(a)].Case Note: Harris v Toronto Community Housing Corporation (Div Ct, 2009)
This is an interesting case focussing on the application of the (then) s.65 "safety impairment" early termination provisions of the Tenant Protection Act. These provisions have been carried forward in unchanged language to s.66 of the present RTA.
The facts were that resident children and their also resident acquaintances had been found, on warrant searches, to possess in the premises numerous illegal firearms and drug-dealing paraphernalia. The Board found that, while the tenants (the parents) had no knowledge of these items, nonetheless they (the tenants) should be evicted as well. It did this after considering, but dismissing as unviable, possible alternative conditional orders allowing the parents to retain possession - and after considering its discretionary application of the general relief from forfeiture provisions (now RTA s.83).
Tenant's arguments that the evidence and legal test should have been approached under the strict and absolute liability analysis of R v Sault Ste Marie (SCC, 1978), and landlord's arguments that tort liability standards such as apply under Rylands v Fletcher were both properly dismissed as misconceived and inapplicable. The court held that the statutory language of TPA s.65(1) was plain in that it did not apply any such fault considerations, the primary issue being preventative safety. The court noted that fault factors may have been relevant had the landlord proceeded on the express "illegal act" provisions, but as this was not the case the Board below did not commit legal error sufficient to allow appellate reversal. Case Note: Musse v. 6965083 Canada Inc.
In Musse v. 6965083 Canada Inc. (Div Ct, 2021) the Divisional Court considered a tenant's appeal partly on the meaning of the phrase "permits a person to" commit an illegal act under s.61 of the RTA. Largely on the basis of reversing the Tribunal's finding on this issue, the court allowed several other tenant arguments. The reasoning was unpersuasive, even my tenant's advocate thinking. There may have been a case for s.83 relief from forfeiture, but illegal acts did occur and to my mind they weren't given proper weight - it's as though the facts were assessed on a criminal standard:[23] In my view, the test under s. 61(1) is relatively straightforward. It requires the landlord to establish either that the tenant, or other occupant, committed an illegal act at the residential complex. In the alternative, that the tenant or other occupant permitted an invited guest to commit an illegal act.
[24] The act in issue is an assault. An assault is an intentional application of force, without consent and where the person applying the force knows that the person against whom force is applied is not consenting. Whoever spit in the face of the superintendent undoubtedly committed an assault.
[25] In this instance the Member was unable to conclude who spit at the superintendent. The upshot of that inability was to narrow the availability of s. 61(1) as a path to eviction. In particular, since the Member could not say that the appellant or her mother (the other occupant) committed an illegal act, the only other means of satisfying the test under s. 61(1) was for the Member to conclude that the appellant, or her mother, permitted another person to commit an illegal act on the premises.
[26] Permission, like consent, involves a state of mind. It is the voluntary agreement that something occur. It involves knowledge of what is going to happen and a voluntary agreement that it be done. A finding of permission did not inexorably flow from the mere fact of the appellant’s presence at the altercation. A finding of permission required at least some evidence upon which it could have been inferred that the appellant knew someone else was going to spit on the superintendent and that she voluntarily agreed that it be done. That evidence is absent in this record.
[27] The Member, in my view, clearly did not turn her mind to the element of permission. This is not a case where she simply failed to or chose not to advert to it. Her suggestion that it is immaterial who spat at the superintendent demonstrates that the Member misunderstood the permission element. She undoubtedly failed to analyse and apply it. This was an error of law, not a factual error or an error of mixed fact and law. (d) Expedited Evictions
Evictions for illegal drug-related activities are subject to mandatory expedited eviction requests by the Board to the sheriff [Act s.84], although that rule is subject to the general Board discretion to "order that the enforcement of the eviction order be postponed for a period of time" [Act s.83(1)(b)] [see Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture"].
(e) 'Illegal' Tenancies
The effect of the 'illegality' of a tenancy itself on it's status under residential landlord and tenant law was considered directly in the case of Fraser v Beach (Ont CA, 2005). While decided under the old Tenant Protection Act (TPA), it's result is equally applicable under the present RTA.
In the case the court was faced with an appeal, by the tenants of an illegal rooming house, against a common law Superior Court injunction which ordered the landlords to close it down. The tenants were not party to the original proceedings and a subsequent Tribunal application brought against them to terminate and evict was dismissed. The neighbours, the moving parties in the original injunction, then sought and obtained an order within the original Superior Court proceedings - on notice to the tenants - that the tenants must vacate. It was this order that the tenant's appealed to the Court of Appeal.
In granting the tenants' appeal the court dismissed several arguments from the neighbours, including one that the 'illegality' of the tenancies undermined their status as tenants under the TPA. This argument was firmly rejected by the court as follows: [10] There is no doubt that the Tenant Protection Act applies to the rooming house and the relationship between its inhabitants and the landlords, despite the fact that it is operated contrary to the city's bylaw. Subsection 2 (1) specifies that the Act "applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary." The Act defines "rental unit" as "any living accommodation used or intended for use as a rented residential premises." The definition specifically includes, in subparagraph (b), a room in a rooming house. A "tenant" is defined to include "a person who pays rent in return for the right to occupy a rental unit" and "tenancy agreement" means "a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit ..." The rooming house itself falls within the definition of "residential complex" as it is a "building in which one are more rental units are located."
[11] These definitions, which are clear, do not exclude an illegal rooming house from their application. Not only does the text of the Act provide no basis for holding otherwise, it would be inconsistent with the purpose of the Act to withhold the protections it provides from residents of the illegal residential units leaving them at the mercy of landlords. I conclude that the Act applies to the relationship between the landlords and the tenants in this case. There is little doubt that the reasoning used in this decision is broadly applicable to a range of other 'illegalities' - particularly zoning, licensing and other municipal by-law violations.
3. Safety
(a) General
A landlord may issue early Notice of Termination on the allegation that an "act or omission" of the tenant, an occupant of the rental unit or a person permitted in the residential complex by the tenant "seriously impairs or has seriously impaired the safety of any person" [Act s.66(1)(a)].
Form N7: Notice to End your Tenancy For Causing Serious Problems in the Rental Unit or Residential Complex
Such "acts or omissions" may occur anywhere in the residential complex (which includes all rental units, and all common areas and services and facilities as well) [Act s.2(1), s.66(1)(b)].
When a Notice of Termination or termination/eviction proceeding is based in whole or part on the presence or behaviour of animals in the premises, specific restrictive termination criteria may (or may not) apply. In these circumstances readers should carefully review s.8: "Animals in the Premises", below.
(b) Notice Period
The notice period for a safety-related termination is (no less than) 10 days [Act s.66(2)].
(c) Expedited Evictions
Safety-related evictions are subject to mandatory expedited eviction requests by the Board to the sheriff [Act s.84], subject to the general Board discretion to "order that the enforcement of the eviction order be postponed for a period of time." [Act s.83(1)(b)] [see Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture"].
4. Damage
(a) General
A landlord may issue an early Notice of Termination on an allegation that "the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex" [Act s.62(1)].
There are two routes to terminate for damage: the "remedial oppourtunity" termination (which may have two contravention 'stages'), and the "severe damage" termination (which has only one stage). These are explained below.
Landlords making application for termination and eviction by reason of tenant damage may also apply for compensatory orders for the damage in the same application. Such compensation applications may also be made independently of termination and eviction proceedings [see s.4(e), below].
When a Notice of Termination or termination/eviction proceedings are based in whole or part on the presence or behaviour of animals in the premises, specific restrictive termination criteria may (or may not) apply. In these circumstances readers should carefully review s.8: "Animals in the Premises", below.
(b) Notice Periods
The notice periods vary with the type and stage of Notice of Termination used, as follows [Act s.62(2)(a), 68(2), 63(1)]: . First-contravention "remedial oppourtunity" ... 20 days
. Second-contravention "remedial oppourtunity" ... 14 days
. Severe damage ... 10 days (c) "Remedial Oppourtunity" Notice of Termination and Eviction
. Overview
There are a class of early terminations for cause that are subject to 'remedial oppourtunity' provisions. These include terminations for damage [Act s.62] - and also terminations for substantial interference with the reasonable enjoyment of the premises [Act s.64; s.5 below] and overcrowding [Act s.67; s.6 below].
Form N5: Notice to End your Tenancy For Interfering with Others, Damage or Overcrowding . First Contravention
When any of these causes is alleged in a Notice of Termination for the first time, the notice period is (no less than) 20 days. However the tenant has a seven-day window in which they can void the Notice of Termination through remedial or compensatory action satisfactory to the landlord.
This right is explained on the standard RTA form Notices of Termination used for these causes of termination (linked above).
In the case of damage terminations, these "remedial oppourtunity" provisions operate to void the Notice of Termination if, within seven days of the Notice of Termination [Act s.62(2)(c),(3)]:- the tenant repairs or replaces the damaged property or pays the landlord the reasonable costs of repairing or replacing the damaged property, or
- "makes arrangements satisfactory to the landlord to comply with that requirement." (ie. repair, replacement or compensation).
If the landlord feels that no satisfactory remedial compliance has occured within this "forgiveness period" then the landlord may make application to terminate and evict in the normal course on the just-issued Notice of Termination. Of course, in such an application the tenant can also argue in defence that their remedial efforts were in fact satisfactory - an argument which - if successful - should defeat the landlord's termination and eviction application.
. Second Contravention
If there was a "first contravention" notice of termination served (regardless of whether it is 'voided' or not), the landlord may within six months (excluding the seven day remedial oppourtunity) serve a further ("second contravention") Notice of Termination for any of the below-listed causes, and the landlord may proceed to apply for termination and eviction normally with no further remedial oppourtunity [Act s.68(1)].
These 'second contravention' causes include not only the three causes which are granted a remedial oppourtunity on first notice, but also include two more. Here I list all of them:- damage (ie. a second allegation),
- substantial interference with reasonable enjoyment,
- overcrowding,
- social housing income misrepresentation, or
- illegal activities (other than illegal drug-related activities) [Act s.61(1),(2)(a)].
For a "second contravention" Notice of Termination the notice period is (no less than) 14 days [Act s.68(2)].Cater v. Khakh (Div Ct, 2020): Voidness and RTA s.68 Changes in 01 January 2018
Determining when remedial efforts are 'satisfactory to the landlord' (and thus void) is left maddeningly unclear in the RTA. If the landlord directly communicates that they are satisfactory (ideally in writing or email) the tenant should be safe, for the time being. Otherwise all 'remedial oppourtunity' Notices of Termination expire 30 days after the stated termination date [RTA 46], so if no termination and eviction application is commenced by that expiry date the tenant should be ok (again, for the time being). These 'for the time being' comments relate to the 'first contravention' notice of termination.
Note however that prior to 01 January 2018 the 'second contravention' (within six months) notice of termination could only be brought where the 'first contravention' notice of termination was rendered 'void' (as above). This led to confusion where the landlord didn't accept the 'voiding' but still didn't move to terminate and evict before the LTB. In such cases the LTB was requiring them to start fresh all over again.
At 01 January 2018 RTA s.68 was changed so that the landlord could bring a 'second contravention' notice of termination as long as they had issued a 'first contravention' notice of termination within the prior six months (excluding the seven day remedial oppourtunity) [the 'window'] - regardless of whether it was 'voided' by the landlord's statement, actions or otherwise. This was made clear by the 2020 case of Cater v. Khakh (Div Ct, 2020) [para 23].
The result is that a tenant's efforts to 'void' the first contravention notice of termination are of limited legal use (other than persuading the landlord not to apply for termination and eviction on that first contravention notice) prior to the LTB application stage. At the termination and eviction application stage the tenant can argue that they did in fact satisfy the landlord at the first contravention stage and thus void the 'first contravention' notice. This would be done to undermine the landlord's entitlement to use these 'remedial oppourtunity' terminations, because the effect of voiding the first contravention notice is not made clear in the RTA. We can expect more litigation on these awkward provisions. . "Remedial Oppourtunity" Eviction Procedures
In the case of a "first contravention" Notice of Termination, no application for termination and eviction may be made to the Board until after the seven-day forgiveness period has expired [Act s.70].
Where a 'second contravention' termination is used, the normal time for applications applies (ie. anytime after the Notice of Termination is served: [Act s.71]). Such applications to terminate and evict must include copies of the first Notice of Termination, and copies of the certificate of service associated with it [Reg s.53, clause 3].
(d) "Severe Damage" Notice of Termination and Eviction
. Overview
If they can make out a case for "severe damage" [author's term], the landlord may opt not to use the "remedial oppourtunity" termination procedures (above). By so doing they avoid the 'remedial' provisions [Act s.63(3)], and can use a shorter (no less than) 10-day notice period. Of course to use this procedure they must be able to meet the higher "severe damage" standard in order to eventually achieve a Board order terminating and evicting the tenant.
Form N7: Notice to End your Tenancy For Causing Serious Problems in the Rental Unit or Residential Complex
This termination procedures applies if the landlord alleges that the "tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex" [Act s.63(1)]:- willfully causes undue damage to the rental unit or the residential complex; or
- "uses the rental unit or the residential complex in a manner that is inconsistent with use as residential premises, and that causes or can reasonably be expected to cause damage that is significantly greater" than 'undue damage'.
. Expedited Eviction
'Severe damage' evictions are subject to mandatory expedited eviction requests by the Board to the sheriff [Act s.84], subject to the general Board discretion to "order that the enforcement of the eviction order be postponed for a period of time." [Act s.83(1)(b)] [see Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture"].
. Comment
These "severe damage" Notice of Termination procedures will be tempting for landlords seeking expedited termination and eviction, although as a practical matter if they fail to make out their cases in evidence they risk denial of their application entirely even if they meet the lighter criteria under the "remedial oppourtunity" provisions (ie. they cannot 'fall-back' on onto the "normal" standard to terminate and evict since that deprives the tenant of the first and second contravention "remedial oppourtunity" procedures, discussed above). In that sense using the "severe damage" route is a gamble by the landlord.
I suggest that we will also see landlords confusing 'severe damage' terminations with 'second contravention' (remedial oppourtunity) damage terminations - and inadvertently (and unnecessarily) imposing the higher damage standards on themselves.
(e) Landlord's Application for Damage Compensation
Tenants are responsible for "the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant" [Act s.34].
Of course - as is explained above - such behaviour is also grounds for termination and eviction.
Failing actual repair/replacement of such damage by the tenant, the tenant has legal liability for it's cost. The RTA provides for landlord's applications for such compensatory orders against tenants, though they must be initiated while the responsible tenant is still in possession of the rental unit [Act s.89(1)]. Such damage applications would normally - though not necessarily - be combined with termination and eviction terminations and applications, and are incorporated into the same Board forms.
Form L2: Application to Terminate and Tenancy and Evict a Tenant
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