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Return to First Part of Chapter
5. Substantial Interference with Reasonable Enjoyment
(a) Overview
There are two forms of the "substantial interference" termination: the "remedial oppourtunity" and the "landlord as neighbour". They are slightly different in criteria, as explained below.
First, a landlord may issue an early Notice of Termination (with "remedial oppourtunities") on an allegation that: ... the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant" [Act s.64(1)]. Contrast this criteria carefully with the slightly different criteria for "landlord as neighbour" terminations discussed in s.5(d), below. Essentially, the "remedial oppourtunity" provisions apply where the problematic conduct is in the "residential complex" (thus including all rental units, related buildings, and common areas: [Act s.2(1)]) and where the interference is with respect to the "landlord or another tenant".
On the other hand, the 'landlord as neighbour' provisions apply where the problematic conduct is in the "building" (which can be much more restricted), and where the substantial interference is with respect to the "landlord" only.
Generally, the main route for termination for substantial interference is the "remedial oppourtunity" termination (with it's two contravention 'stages'). The "landlord as neighbour" procedure is available for the less common situation where the building in which the tenant's rental unit is located has three or fewer residential unit (note: not necessarily residential rental units) and where the landlord resides in one of them.
Note that 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.Case Note: Wilkinson v. Seritsky
In Wilkinson v. Seritsky (Div Ct, 2020) the Divisional Court quashed a residential landlord and tenant appeal. At the LTB the member granted termination and eviction where the tenant rented the condo premises only for short-term rentals, on the basis that short-term leases contravened the condo rules. The legal termination used was that:Following the hearing, on February 4, 2020, the Board issued a decision in which it found that the Tenant operated a short term rental business that interfered with the Landlord’s “lawful right, privilege or interest” because it exposed the Landlord to sanctions from the condominium corporation. I'm interested to see how the LTB handles these Airbnb 'sub-'rentals. My first instinct is to attack them under the unauthorized assignment or subtenant terminations under RTA s.100(1), which allows termination of both the 'chief' tenant and the unauthorized occupant. The cases are interesting, especially with landlords being motivated to act with the decline of short-term rentals during the COVID crisis. (b) Notice Periods
The notice periods vary with the type and stage of Notice of Termination used, as follows [Act s.64(2)(a), 68(2), 65(1)]: . First-contravention "remedial oppourtunity" ... 20 days
. Second-contravention "remedial oppourtunity" ... 14 days
. "Landlord as Neighbour" termination ... 10 days (c) "Remedial Oppourtunity" Notice of Termination and Eviction
. Overview
The criteria for a "remedial oppourtunity" termination for "substantial interference with reasonable enjoyment" is set out in "Overview", above. I repeat it here for reference: Act s.64(1)
A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. Form N5: Notice to End your Tenancy For Interfering with Others, Damage or Overcrowding
. First Contravention
There are a group of early terminations for cause that are subject to the 'remedial oppourtunity' provisions. These include "substantial interference with the reasonable enjoyment" [Act s.64] - and also terminations for damage to the premises [Act s.62; s.4 above] and overcrowding [Act s.67; s.6 below].
When "substantial interference" or 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' [see 'Note', below] 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 (above).
In the case of "substantial interference with reasonable enjoyment" terminations, these "remedial oppourtunity" provisions operate to void the Notice of Termination if, within seven days of the Notice of Termination the tenant "stop(s) the conduct or activity or correct the omission set out in the notice" [Act s.64(2)(c),(3)].
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 (below). Of course in such an application the tenant can also argue in defence that their remedial efforts were in fact satisfactory, and - if successful - avoid termination and eviction.
. 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. I list them all here:- damage,
- substantial interference with reasonable enjoyment (ie. a second allegation),
- 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) "Landlord as Neighbour" Terminations and Evictions
. Overview
As discussed in (a) above, there is a second termination procedure available for "substantial interference with reasonable enjoyment" where the building in which the tenant's rental unit is located has three or fewer residential unit (not necessarily residential rental residential units) and where the landlord resides in one of them (thus the "landlord as neighbour" description). For example, this would include a single building divided into two or three apartments, one inhabited by the landlord.
For the "landlord as neighbour" provisions, a landlord may issue an early Notice of Termination on an allegation that [Act s.65(1)]: ... the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord. Form N7: Notice to End your Tenancy For Causing Serious Problems in the Rental Unit or Residential Complex
Contrast this criteria carefully with that used for the "remedial oppourtunity" 'substantial interference' terminations discussed in s.5(a): "Overview", above. Essentially, the "landlord as neighbour" provisions only apply where the problem is in the "building" [as opposed to the "residential complex", which can include all rental units, related buildings and common areas: see Act s.2(1)], and the interference is with respect to the "landlord" only (as opposed to the "landlord and other tenants").
If these conditions apply, the landlord may opt not to use the "remedial oppourtunity" termination procedures (above). By so doing they avoid the 'remedial' provisions [Act s.64(3)], and can use a shorter (no less than) 10-day notice period.
. Expedited Eviction
'Landlord as neighbour' evictions are subject to mandatory expedited eviction requests by the Board to the sheriff [Act s.84], which in turn are 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"].
6. Overcrowding
(a) Overview
A landlord may issue an early Notice of Termination on an allegation that "the number of persons occupying the rental unit on a continuing basis results in a contravention of health, safety or housing standards required by law." [Act s.67(1)].
Form N5: Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding
The Notice of Termination procedure for "overcrowding" has "remedial oppourtunity" provisions like those for the "damage" and "substantial interference with reasonable enjoyment" terminations discussed above.
(b) Notice Period
The notice periods vary with stage of Notice of Termination used, as follows [Act s.67(2)(a), 68(2)]: . First-contravention "remedial oppourtunity" ... 20 days
. Second-contravention "remedial oppourtunity" ... 14 days (c) "Remedial Oppourtunity" Notice of Termination and Eviction
. First Contravention
There are a class of early terminations for cause that are subject to 'remedial oppourtunity' provisions. These include terminations for "overcrowding" [Act s.67] - and also terminations for damage to the premises [Act s.62; see s.4 above] and "substantial interference with reasonable enjoyment" [Act s.64; see s.5 above].
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 [see 'Note', below] the Notice of Termination through remedial or compensatory action satisfactory to the landlord [Act s.67(2)(c),(3)].
This right is explained on the standard RTA form Notices of Termination used for these causes of termination (above).
In the case of "overcrowding" terminations, these "remedial oppourtunity" provisions operate to void the Notice of Termination if, within seven days of the Notice of Termination the tenant "reduce(s) the number of persons occupying the rental unit to comply with health, safety or housing standards required by law." [Act s.67(2)(c)].
If the landlord believes 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 (below). Of course in such an application the tenant can also argue in defence that they did in fact reduce the occupancy as legally required, and - if successful - avoid termination and eviction.
. 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. I list them all here:- 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].
7. Social Housing Income Misrepresentation
(a) Overview
Where a tenant of social housing [see Ch.2, s.8(b): "Special and Exempt Premises: Social Housing: HSA, Federal and Related Housing Program Exemptions"] "knowingly and materially misrepresented his or her income or that of other members of his or her household", then the landlord (always a public housing provider) may serve an early Notice of Termination [Act s.60(1), Genl Reg 6(6)].
Form N6: Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding
(b) Notice Periods
The usual notice period for such a termination is (no less than) 20 days [Act s.60(2)].
However, note that a Notice of Termination based on an allegation of "social housing income misrepresentation" is one of the "second contravention" conditions discussed above regarding the "remedial oppourtunity" Notice of Termination procedures for causes of: "damage" [s.4], "substantial interference with reasonable enjoyment" [s.5] and "overcrowding" [s.6]. Thus a Notice of Termination for "social housing income misrepresentation" given within six months of an earlier "remedial oppourtunity" Notice of Termination under any of those causes allows the landlord to apply a (no less than) 14 day notice period [Act s.68(1)(b),(2)].
(c) Compensation Orders
A social housing landlord applying to the Board for termination and eviction by reason of "social housing income misrepresentation" may also request "an order for the payment of money the tenant would have been required to pay if the tenant had not misrepresented his or her income or that of other members of his or her household" (ie. retroactive compensation) [Act s.90].
As well, a social housing landlord who "has a right to give a notice of termination under section 60 [social housing misrepresentation]" may also claim for such compensation. This apparently means that the compensation application may be made on it's own if the landlord prefers (ie. not necessarily in conjunction with termination and eviction proceedings). However - even a 'compensation-alone' application may only be made while the tenant is still in possession.
Further note the difficulty imposed on such compensation applications by the operation of Act s.203: Act s.203
The Board shall not make determinations or review decisions concerning,
(a) eligibility for rent-geared-to-income assistance as defined in s.38 of the Housing Services Act, 2011 or the amount of geared-to-income rent payable under that Act; or
(b) eligibility for, or the amount of, any prescribed form of housing assistance. This provision was apparently drafted to prevent the Board from inquiring independently into the legal rent-geared-to-income (RGI), and to compel it to accept that rent level as given it by the public housing landlord. Taken literally however it would prevent the Board from even accepting that figure (ie. "shall not make determinations ... concerning ... the amount of geared-to-income rent") as a basis of determining any compensation due.
8. Animals in the Premises
Preliminary Note
"Animals in the premises" is not - by itself - a "cause" for termination and eviction. Rather, this section explains how "animals in the premises" is weighed and treated when other causes of termination and eviction (discussed in this chapter) are applied against tenants, and the legal duties of all parties towards the animals during those processes. (a) Overview
As is mentioned in Ch.3, s.2(c) ["Tenant Rights, Responsibilities and Remedies: General Rights and Responsibilities: Pets"], the Residential Tenancies Act voids provisions in a tenancy agreement purporting to prohibit the presence of animals "in or about the residential complex" [Act s.14].
However that only bars termination and eviction (and probably civil liability) for the presence of animals as such (ie. for the fact of their presence alone, not for any harm or injury caused thereby). When a landlord feels that the presence or behaviour of an animal in the premises is an actual problem, they can try to use a "cause" of termination corresponding to the nature of the problem (eg. safety, substantial interference with reasonable enjoyment, illegal activities, etc).
For some of those particular "causes" of termination that a landlord may resort to in these situations, the Act sets out further criteria restricting when an animal-related termination may be ordered by the Board (I call these "restricted pet terminations"). However the Act does not impose those criteria on all causes of termination that a landlord might select for these purposes ("unrestricted pet terminations").
Thus, if the facts allow, landlords may opt to try an "unrestricted pet termination" ground to end the tenancy, hoping to avoid the restrictive criteria.
That said, even when "unrestricted pet terminations" are used it is still open to the Board to effectively apply the restrictive criteria, or something like them, under its general discretionary "relief from forfeiture" jurisdiction [discussed in Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture"]. The restrictive animal criteria are clearly meant to be an expression of public policy on this issue.Case Note: Drewlo Holdings Inc. v. Weber (Div Ct, 2011)
In this case the tenancy was exempt from above-guideline rent increases by virtue of a categorical exemption set out in RTA s.6(2) [see Ch.10, s.6]. The landlord circulated a letter stating that the purpose of a nine percent increase was to compensate the landlord for the allegedly higher-than average damage costs that the presence of pets in units posed. The Board (upheld by the court), having regard to it's jurisdiction to ascertain the "real substance of all transactions and activities" [RTA 202], held this to be an illegal penalty charge and ordered a compensating abatement of rent. Abatement of rent was ordered as the Board accepted the characterization that “…a tenant’s reasonable enjoyment of the property…includes the expectation that they [sic] will not be made subject to premiums, penalties or other charges for otherwise lawful conduct.” The court's reasons suggest that if the landlord had simply been silent as to the reason for the increase, it likely would not have incurred this problem (though logically this is solely as a matter of not inadvertently giving the tenant evidence against it).
Case Note: In Whittaker v. Richmond Medical Centre Inc. (Div Ct, 2020) the Divisional Court considered a dispute over ownership of a dog during an RTA eviction:
[12] It emerged from the teleconference that Ms Whittaker had placed the dog with the landlord’s family almost two years ago, and that the dog has been living with the landlord’s family since around January 2019. The landlord says that Ms Whittaker gave the dog to one of the landlord’s children – including all of the dog’s tags and licenses and veterinary information. Ms Whittaker says that she did not give the dog away and expected to get it back – the arrangement, she says, was temporary.
[13] This situation is a far cry from the situation described in Ms Whittaker’s written materials. I put it to her that she had no reason to believe that the dog was not fine and well cared for, and her response was that she did not know this to be true. There is no evidence the dog is anything but well, and well provided for. Possession is, as they say, nine-tenths of the law, and I decline to make an order that the dog be returned now. It is clear that the status quo is that the dog lives with the landlord’s family, and Ms Whittaker’s materials on this issue were less than candid.
[14] If Ms Whittaker takes the position that the dog is her property then she shall pursue that issue in a claim in the small claims court, to be commenced within sixty days, and to include no other claims than title to the dog. If Ms Whittaker does not commence that claim as directed in this endorsement, then she will be deemed to have abandoned any claim to or in respect of the dog. (b) Restricted Causes of Termination
. Overview
Where a landlord serves a Notice of Termination "grounded on the presence, control or behaviour of an animal in or about the residential complex", under any of the following causes of termination, then no termination and/or eviction may be ordered by the Board unless specific "restrictive criteria" (explained below) are met [Act s.76(1)].
The causes of termination to which these restrictive criteria apply are:- substantial interference with the reasonable enjoyment of the premises - "remedial oppourtunity" procedure [Ch.6, s.5(c)];
- substantial interference with the reasonable enjoyment of the premises - "landlord as neighbour" procedure [Ch.6, s.5(d)]; and
- safety [Ch.6, s.3].
The "restrictive criteria" which must be met to allow termination and eviction for these causes are that the tenant is "keeping an animal", and that further criteria (described below) relating to any one of the following issues are met [Act s.76(1)(a-c)]:- behaviour;
- allergies;
- inherent danger.
. Behaviour
The Board may issue an order terminating the tenancy and evicting the tenant if "the past behaviour of an animal of that species has substantially interfered with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or other tenants" [Act s.76(1)(a)].
In defence however, if the tenant satisfies the Board that "the [specific] animal kept by the tenant did not cause or contribute to the substantial interference", the Board must refuse the application [Act s.76(2)]. This essentially shifts the burden of "proving innocence" of the specific animal onto the tenant pet owner (don't get excited about the "presumption of innocence", it doesn't apply here).
. Allergies
The Board may issue an order terminating the tenancy and evicting the tenant if "the presence of an animal of that species has caused the landlord or another tenant to suffer a serious allergic reaction" [Act s.76(1)(b)].
In defence however, if the tenant satisfies the Board that "the [specific] animal kept by the tenant did not cause or contribute to the allergic reaction", the Board must refuse the application [Act s.76(3)]. Again, this shifts the burden of proving innocence to the tenant pet owner.
. Inherently Dangerous
The Board may issue an order terminating the tenancy and evicting the tenant if "the presence of an animal of that species or breed is inherently dangerous to the safety of the landlord or the other tenants". [Act s.76(1)(c)]
Unlike the other criteria above (behaviour and allergies), there is no mandatory prohibition against the Board ordering termination and eviction if the tenant proves that the specific animal involved is not a threat. This does not mean that a tenant should not try to prove this, just that proving 'no threat' from the individual animal/s will not by itself win their case. It is still open to the Board to apply the 'innocence' of the specific animal in the exercise of it's "relief from forfeiture" discretionary authority in favour of the tenant [see Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture"].
. Comment
The first two of these restrictive criteria ("behaviour" and "allergies") are oddly structured. While they quite logically exonerate animals that the tenant shows to be uninvolved in the allegations of behaviour or causing allergies (a "reverse onus" placed on the tenant), they do first require that the landlord prove that "past behaviour of an animal of that species" has caused a problem, or that "animal of that species has caused the landlord or another tenant to suffer a serious allergic reaction".
Overwhelmingly these provisions will be applied with respect to dogs (and less so cats). For dogs, a fact-finding that the past behaviour or allergic effect of a different dog is only marginally relevant to show future risk with the dog in question. A more relevant (but still - in my opinion - overbroad) requirement, would be to require evidence that a dog of that breed was a prior problem.
Further, clearly there will be situations where an animal causes, for the 'first time' in a particular residential complex, a "substantial interference with reasonable enjoyment" - so why in such a case is the landlord also required to show "the past behaviour of an animal of that species" as having done the same. This only makes sense if the past behaviour of that very same animal (which, technically is an "animal of that species") can be counted towards this 'prior' misbehaviour requirement - but such an interpretation strains the wording of the provision, which could easily have been made to read: "that animal or another animal of that species". This provision seems to be a clumsy sort of 'collective species guilt' provision that that is simply wrong-headed in it's presumption of risk.
Further it is important to realize that many "breeds" of dog belong to the same single species ("species" is the operative class for the "behaviour" and "allergies" criteria). So the past "bad" behaviour of a yappy chihuahua is (legally) evidence to lead in the attempted eviction of an incontinent aged labrador retriever - something quite illogical in terms of risk avoidance.
That said, we do see the species/breed distinction acknowledged and applied in the "inherently dangerous" criteria. This is no doubt related to the contemporaneous legislative attempts by the province to outlaw and restrict ownership of "pit-bull terriers" [which have met (unsuccessfully) with dispute in the courts precisely due to the further ambiguity contained in the supposedly more precise concept of "breed"]. These issues are discussed in greater length in the Isthatlegal.ca Dog and Cat Control (Ontario) Legal Guide, linked at the header above.
In closing, it is to be hoped the logical awkwardness of these animal-related provisions will be ameliorated in individual cases by a judicious Board use of the "relief from forfeiture" provisions (mentioned above) whenever there is no serious evidence of future risk of substantial interference with reasonable enjoyment, allergies, or danger.
(c) "Unrestricted Causes" of Termination
. Overview
The potential causes of termination that are 'unrestricted' by these animal-termination criteria (above) are as wide as there are different causes of termination. That said, only terminations based on "illegal acts" [s.12 above] and "damage" [s.14, above] are logically available for this purpose. The interactions of these termination causes with the presence of animals in the premises are discussed in turn below.
. Illegal Acts
The main "unrestricted" cause available for animal-related terminations is that of "illegal acts" [see Ch.6, s.2] which essentially applies where the tenant either commits (or allows to be committed): "an illegal act or carries on an illegal trade, business or occupation".
"Illegality" involving animals covers a wide range of legal infractions. These can include (to list only some):- violation of municipal pet keeping by-laws (ie. limits on numbers, species and breeds);
- violation of the pit bull ban, or the conditions under which 'grand-parented' pit bulls can be kept (under Ontario's Dog Owners Liability Act);
- federal laws restricting the keeping of certain internationally endangered and protected species [based on the Convention on the International Trade in Endangered Species (CITES), and implemented into federal Canadian law in the 'Wild Animal and Plant Protection and Regulation of International Trade Act' or WAPPRIITA];
- provincial laws prohibiting the keeping of naturally wild native species (under Ontario's Fish and Wildlife Act);
- the keeping of animals in circumstances that are unhealthy for them and/or amount to cruelty under the Criminal Code.
The main point to be made here is that it is not the role of the Board to enforce other laws, and certainly not to do so in a punitive fashion. While "illegality" may provide prima facie grounds for the Board to terminate and evict, the Board is still under a mandatory duty to consider its "relief from forfeiture" discretion [Ch.8A, s.5((b)], a consideration where the issue of actual harm or inconvenience is primary.
Further, as is discussed in (d) below ["Legal Duties towards Animals in Terminations and Evictions"], it is legally incumbent (at pain of criminal prosecution) on all parties involved in such 'animal termination' cases (Board, tenant, landlord and sheriff) to weigh the legal rights of the animals to adequate care and protection in any decisions made in the termination and eviction processes. Criminal and now provincial [with the Bill 50 amendments to the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA)] laws are quite clear that anyone in a fiduciary position with respect to animals are under legal duties to look out for their interests. Just as the presence of a child in a rental unit is a factor that should be weighed by the Board, so with animals.
. Damage
Terminations for "undue damage" to the premises allegedly caused by the presence of animals are also unrestricted by the criteria discussed in (b) above, although animal/damage situations are quite foreseeable.
This cause of termination is discussed extensively in s.4 above, and has two forms: the "remedial oppourtunity" and the "severe damage" Notice of Termination procedures.
As is the case with "illegality" (above), any "damage" terminations involving animals must weight the respective interests of the parties, including those of the subject animals, in the "relief from forfeiture" stage of adjudication.
(d) Legal Duties towards Animals During the Termination and Eviction Process
The Criminal Code of Canada sets out the numerous legal duties of persons towards of animals regarding adequate care and humane treatment. These are discussed in detail in the Isthatlegal.ca Animals and the Criminal Law Legal Guide. These duties have been supplemented recently with the Bill 50 amendments to the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA), which create a range of mandatory 'care standards' for custodians of animals in captivity.
Besides a general prohibition on killing and injuring animals without lawful excuse [CC s.445], the Criminal Code imposes specific burdens on "owners" and those having "custody or control" of animals - which characterization certainly fits tenants, landlords and sheriffs at the various stages of the termination and eviction process: s.446(1)
Every one commits an offence who
(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird; ...
(c) being the owner or the person having custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it;
...
(e) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it; In the civil case of Robitaille v Moore [Court File #97-CU-119459, Ontario Superior Court, 27 April 2004], argued by the author, a landlord who intentionally killed a tenant's dog in the course of a landlord and tenant dispute was found liable for $15,000 compensatory and $15,000 punitive damages.
Tenants anticipating difficulty in caring for animals after a pending eviction should make prior private arrangements for them with friends or family. Failing that they should bring the presence of such animals (and the legal duties that relate to them) to the attention of the landlord and the sheriff in writing, so that they at least are forewarned. Sheriff's staff and landlords will normally respond to such notice by arranging to have a local OSPCA shelter staff there to take the animal/s.
Without such prior warning, Sheriff practices with respect to animals can be expected to vary widely, but present attitudes are primarily based on their avoidance of responsibility for tenant 'property' completely - a concept in which they include animals. Similarly, even RTA provisions respecting tenant 'property' [see Ch.8. s.4: "Other Termination Procedures: Tenant Property"] (in which the common law would include animals) are also mute on the possibility that animals may be left in premises as well.
Note that the City of Toronto has a specific provision in its "Animals" by-law Municipal Code c.349] for providing temporary "protective care" for animals homeless due to "eviction, incarceration, medical or fire emergency or any other situation that the Medical Officer of Health" deems appropriate. Such animals are to be held for five days, after which they are treated in the same fashion as strays seized by animal control [see c.349-9, and the Isthatlegal.ca Dog and Cat Control Law (Ontario) Legal Guide] and thus enter the municipal 'pound' system.
By-laws differ in this regard all over the province, but most have no protective care provisions. As is explained however in the Dog and Cat Control Law (Ontario) Legal Guide, a tenant's pet is almost always better off out of the pound system than in it. Informal boarding, and private or OSPCA shelters are much to be preferred over pounds, which are governed under the Animals for Research Act.
Parties may wish to inquire of locally-available OSPCA/Humane Society services well before the need is realized:
OSPCA Branches and Affiliates.
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