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Residential Landlord and Tenant Law (Ontario)
(15 August 2015)

Chapter 9 - Termination Defences


    Note
  1. Overview
  2. Procedural Defences
    (a) Overview
    (b) Some Applicable Law
  3. Defences "On the Merits"
  4. Thinking Tactically
  5. Positive Defences
    (a) Overview
    (b) "Relief from Forfeiture" (Discretionary)
    (c) Mandatory Refusals (Landlord in Breach of Duties)
    . Overview
    . Serious Landlord Breach of Duties
    . Complaint Retaliation
    . Rights Enforcement Retaliation
    . Tenants Association Retaliation
    . Children in Premises
  6. "Tenant Rights" Defence to Money Claims
  7. Tactical Use of s.194 Mediated Settlements and Conditional Orders
    (a) Overview
    (b) s.194 Mediated Settlements
    (c) Conditional Orders
    (d) Tactical Comments
  8. A Case Study in Defence
    (a) Overview
    (b) The Example Facts
    (c) Procedural Defences
    (d) Defence "On the Merits"
    . Overview
    . Analyze
    . Think, Reason, Plan
    (e) Positive Defences
    (f) Mediated Settlements and Conditional Orders
________________________________________

Note
This chapter discusses general tenant defences to applications to terminate and evict. Additional commentary and discussion of defence issues that relate to specific types of termination proceedings (by cause or reason) are in the main discussions of those various causes and reasons for termination [Chapters 4-7]. In particular, additional defences available for non-payment of rent terminations and claims for arrears of rent are discussed at Ch.7, s.9: "Non-Payment of Rent Terminations: Tenant's Rights Defences".

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 (RTA), 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

Obviously, tenant defences to a landlord's termination and eviction proceedings will vary with the reason or cause of the termination proceeding advanced by the landlord, and the nature of evidence on each side. However, there are general defence issues and analyses common to all such proceedings: these are the subject of this chapter.

General tenant defences can be broken down as follows:
  • procedural defences (eg. the landlord's termination procedures are flawed) [see s.2, below];

  • defences "on the merits" (tenant showing stronger evidentiary position) [see s.3, below];

  • positive defences (various situations where the Board may or must dismiss an application or show leniency to the tenants) [see s.5, below].
These are just categories I use for explanation, and the lines between them are not always clear and bright. Often evidence used for one type of defence will find itself relevant to another.

All of them involve - to greater and lesser degrees - adequate preparation and presentation of suitable evidence. The vast majority of defence "activity" in disputed landlord applications is fact-based, and it is essential that tenants and advocates have a working knowledge of evidence law [Ch.14, s.5: "Hearings, Orders and Enforcement: Evidence"] (especially review the links to the more extensive discussions of evidence law in other Isthatlegal.ca Legal Guides).


2. Procedural Defences

(a) Overview

A "procedural defence" can also be described as a "negative defence" in that it is grounded in the failure of the landlord to properly follow the procedures necessary to terminate and evict a tenant. It is a common law tradition that legal provisions of forfeiture (a general term including L&T terminations) are read narrowly against forfeiture (ie. conservatively). For example, Donald Lamont, while reviewing the case law on this issue, has stated [Residential Tenanacies (5th ed., Carswell, 1993, p.193] that:
It has been said a number of times that notices of termination as to content and time periods must be followed exactly. There is little or no room for equitable or reasonable interpretation.
Procedural defences are as varied as the landlord's procedural requirements and they can arise at any stage of the process - from initial drafting and service of the Notice of Termination up to and during the hearing of the termination and eviction application.

Locating procedural errors requires the tenant studying the landlord's procedural burdens for the type of termination and eviction that they are using. This knowledge must then be applied to review all landlord documents and behaviour for technical compliance (eg. proper date of termination, proper notice period, proper service, proper contents of Notices), etc.

Tenants should therefore review those landlord requirements as they apply to their particular proceeding (these details for all types of proceedings are set out in Chapters 4-8), in light of the landlord's documents and procedural compliance. Flaws should be raised at the hearing in defence.

(b) Some Applicable Law

There are few hard and fast rules regarding the consequences of landlord procedural non-compliance. Generally, procedural defences are much stronger if the tenant can show that they have 'been prejudiced' by the error (ie. if the error or non-compliance has impaired the tenant's ability to properly present their case).

That said, failure to precisely state the date of termination in the Notice of Termination may be fatal to the Notice - even if adequate notice period is given Bianchi v Aguanno (1983) 42 OR (2d) 76 (Divisional Court). As well, failure to meet proper notice periods [which often involves issues of inadequate or late "service": see Ch.13, s.8: "General Board Procedures: Service and Filiing of Documents"] will most likely be fatal to the landlord's proceeding.

Interpretation Guideline 10 ["Procedural Issues Regarding Eviction Applications"] sets out the Board's perspective on most procedural requirements for a landlord-initiated termination and eviction. In particular, it discusses the consequences to a termination and eviction application of procedural non-compliance - both at the Notice of Termination and the Application stages. This Guideline should be reviewed carefully by anyone involved in a termination application.

Interpretation Guideline 10: Procedural Issues Regarding Eviction Applications

As per Rule 8 ["Application Screening Rules"] (linked below) some procedural errors may be caught by Board staff, preventing the commencement of the application until they are corrected, or even requiring that they be re-started right from the Notice of Termination stage.

Rule 8: Application Screening Rules

That said, the Act expressly excuses minor document flaws [Act s.212]:
Act s.212
Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.

3. Defences "On the Merits"

A "defence on the merits" is a term you will hear lawyers use when referring to the evidence (ie. fact-based) defence. The term is used to refer to the "case" when all procedural barriers are stripped away and the true "merits" of the case are being considered. It can be thought of as: "ok, forget all the procedural stuff - let's get down to the evidence".

Similar to procedural defences (where knowledge of the landlord's procedural burden is so important), defending a case "on the merits" requires a thorough knowledge of the legal grounds or criteria that the landlord has to satisfy (with evidence) to be granted the Board Orders they are seeking. To know this tenants must review the discussions of the specific termination and eviction proceedings they are involved with [see Chapters 5-7].

For instance, if the termination proceeding is based on an allegation that the tenant has caused "undue damage" to the premises, an argument (and good quality evidence: eg. photographs) that the damage is more in the nature of reasonable "wear and tear" is a good start on winning the case "on the merits".

Similarly, if the landlord is seeking "personal possession" of low-rent premises in a "bad" part of town for occupation by their daughter - who you can prove currently lives in an very up-scale condominium she owns on the waterfront - then you have good start on an argument that the landlord's claimed purpose for the termination is not "in good faith".

Defending a termination and eviction case "on the merits" is all about knowing the legal burden that the landlord faces, and then coming up with good quality, believable evidence to undermine it. An excellent way to do this is to try to put yourself in the position of the landlord and think about what evidence they need to make out their case, and what evidence they have available to them (this is discussed more in s.4 below).

At the heart of any defence case is the issue of credibility. Almost always, if - at the hearing - the tenant establishes that the credibility of their testimonial, documentary and other evidence (ie. true-telling and accuracy) is superior to that of the landlord's, then they will have the advantage.

In particular, inexperienced self-litigators often try to present themselves as saints in all respects - and the landlord as the devil in all respects. Board members are not stupid and know that such a scenario is quite rare. They much prefer - and will almost always be more favourably inclined towards - the evidence of people who openly admit their flaws and mistakes (and who show a willingness to address these if it is relevant to the case) - rather than people engaged in blatant, self-serving exaggerations and fabrications.


4. Thinking Tactically

This comment applies especially to "procedural defences" and "defences on the merits" as mentioned above. Both of these are similar in that they attempt to undermine or weaken the landlord's ability to make out their case where the landlord bears the "burden" of satisfying the legal test for termination (which in a termination and eviction proceeding they usually will). This makes them distinct from the "positive defences" discussed in s.5 below.

Essentially, tactical thinking requires the tenant to put themselves in the mind of the landlord when examining the case - and to identify and exploit any weaknesses they detect or suspect in it.

For the most part this is a surprisingly simple task. The most fundamental thing to do is to review the procedural and substantive (ie. merits) requirements and elements that the landlord faces. This is achieved by reviewing the legal requirements that the landlord faces. Think about what evidence the landlord may have to support their case: eg. superintendents as witnesses, unfriendly neighbours who may have observed things, prior document and correspondence exchanges between the parties: anticipate their case and try to think of ways to counter it.

For example, the superintendent who shows up at hearing to testify might be the supervisor, while the actual one who saw things was the junior. This makes their evidence weaker as it is second-hand. While hearsay evidence is admissible before the Board the tenant is denied the ability to cross-examine the direct witness and this should be raised and shown to the Board. Have them admit this fact in cross-examination.

Similarly, a neighbour brought to testify about loud music may have a previous grudge with you over something (affecting their credibility). Put this issue to them in cross-examination when they testify and, if they do not admit it, testify about it the direct evidence phase of your defence case.

Don't forget procedural defences. If they are found, some procedural tenant defences may be raised informally even before the landlord makes Application to the Board (and should be, if tactically merited to 'nip it in the bud') - but in many other cases the tenant may want to hold off to avoid prematurely tipping their hand (which may enable the landlord to correct their error and continue or re-start the process properly). For instance, if the landlord is under a time limit to commence a termination application [most causes of termination require that a Board application be brought within 30 days after the termination date: Act s.69(2); non-payment of rent is an exception: Act s.69(3)] but will be past it soon, a tenant would be acting against their own interests to bring the error to the landlord's attention. Such tactical choices will usually be challenging and demand a good knowledge of the law and procedures involved in the process.

Thinking tactically is primarily a matter of common sense and ingenuity - not law. Lawyers have no monopoly on those things.


5. Positive Defences

(a) Overview

The Act sets out several circumstances and situations where the Board may (relief from forfeiture), or must (mandatory refusals) refuse the landlord's application - or at least show the tenant some leniency by delaying the Order. These "defences" are distinct from "merits" defences as they are often unrelated to the grounds of termination advanced by the landlord.

The Board's perspective on it's mandatory refusal and relief from forfeiture authorities are set out in Interpretation Guideline 7: "Relief from Eviction: Refusing or Delaying an Eviction", linked below (which tenants should always review). Of particular note in this Guideline, the Board states that: "(t)hese considerations must be made whether or not the issues are raised by the tenant." However, tenants should not rely on the Board alone to extract the evidence relevant to their positive defence - they should actively prepare and present evidence relevant to it, just as they do with the other defences.

Interpretation Guideline 7: Relief from Eviction: Refusing or Delaying an Eviction

As well, tenants may allege in defence that the landlord has engaged in discrimination under the Human Rights Code. Such arguments can be located under discretionary relief from forfeiture principles, and even in some case under the mandatory refusal provisions if the discrimination can otherwise be located in the several grounds which trigger those rules.

Interpretation Guideline 17: Human Rights
.
(b) "Relief from Forfeiture" (Discretionary)

These is a common law landlord and tenant principle called "relief from forfeiture" that still applies under that name to commercial tenancies. It allows a reviewing court - at it's discretion - to refuse to order termination and eviction, unless they feel that it would be unfair to the landlord to refuse. This principle has been re-stated and codified in the Residential Tenancies Act. Now, when faced with a landlord's application for an order terminating a tenancy, the Board may, "despite any other provision of this Act or the tenancy agreement", [Act s.83(1)]:
  • refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

  • order that the enforcement of the eviction order be postponed for a period of time.
The first of these powers ["refuse to grant ... unless ... it would be unfair to refuse"] is awkwardly phrased (as it was at common law) but can be read as meaning that the Board may grant relief, except where it would be particularly burdensome on the landlord. Practically it usually amounts to a comparison of the weight of the interests of the parties, with the Board having a strong interest in seeing that any ongoing problem situations are addressed and ended through active efforts by all involved. Adjudicators love to go home feeling that they have contributed to constructive human solutions to problems rather than the force of law - an laudable inclination which should be fostered.

The Board is under a mandatory duty to consider the exercise of this discretion in all landlord-initiated eviction cases where a hearing is held, and in so doing must "review() the circumstances" relevant to it [Act 83(2)]. That is, the Board must always consider it's "relief from forfeiture" discretionary jurisdiction and must review the evidence relevant to it - even though its decision to grant relief is discretionary.

It is the nature of "relief from forfeiture" that it can operate in favour of a tenant even when the landlord has satisfied all of "their" burden for the granting of termination and eviction Orders. When relying on relief from forfeiture as a possible defence, it is tactically advisable for a tenant to respect and accomodate what the Board will view as the landlord's legitimate concerns - not to engage in a futile fight against it. Where the tenant's behaviour is likely going to be held to be at least somewhat 'at fault', then the tenant should be prepared to show that they have corrected it as far as they can, and to give firm promises (preferrably backed up by demonstrable preparations) that "it's not going to happen again". The same goes for any sympathetic vulnerabilities of the tenant such as children, mental or physical handicap, lack of safe housing options, etc - some of which may need to be proven through medical or other relevant evidence. Boards like to exercise compassion - but you must give them a solid reason to do so.
Case Note: Collins v BCIMC Realty Corporation (Div Ct, 2009)

This was an interesting non-payment of rent case. The tenant countered the non-payment with a tenant's rights abatement application grounded alleging the premises were in an uninhabitable condition [as is allowed under RTA s.82(1)] and sought to set-off the amount of the potential abatement against arrears. The Board essentially severed the matters, making an interim order of eviction and assessing arrears at just under $4,000. It adjourned the abatement issue but delayed the enforceability of the eviction to the return date for the abatement issue.

The Board, ostensibly while considering it's relief from forfeiture jurisdiction under RTA s.83, reasoned that as the amount of any abatement would not likely exceed the arrears, the balance of 'prejudice' favoured the landlord. The tenant appealed this to Divisional Court on the grounds that the Board had no jurisdiction to sever the matters - apparently on the argument that s.82(1) gave the tenant the right to counter a non-payment application with an abatement application by way of 'set-off'. The court upheld the Board's interim order and quashed the appeal, holding implicitly that the delaying of the eviction order to the return date of abatement application somehow (the court's rationale is sketchy) 'protected' whatever rights the tenant had to set-off. Of course the severing of the arrears matter from the abatement matter ends any set-off entitlement of the tenant insofar as it impacts the termination.

From the reported reasons it is unclear whether it was raised in argument, but I think a stronger argument against the Board's interim order is that relief from forfeiture under s.83, which both the Board and the court conflated with the common law interim injunction standard of 'balance of convenience', could not be properly considered until all of the primary issues had been decided, most significantly the tenant's case for abatement set-off. Relief from forfeiture, both logically and traditionally, is the final pre-Order consideration in any eviction proceeding and to proceed to it before all the substantive issues had been resolved was plainly premature. Rather than using s.83 relief from forfeiture in it's dedicated 'shield' function to provide equitable relief to tenants, the court here is endorsing turning it into a 'sword' against them.
(c) Mandatory Refusals (Landlord in Breach of Duties)

. Overview

In addition to the discretionary "relief from forfeiture" provisions above, the Residential Tenancies Act also sets out specific circumstances where the Board must deny a landlord's eviction application ("mandatory refusals") based on the behaviour or motivation of the landlord. These include any of the following [Act s.83(3)] (they are each explained further below):
  • serious landlord breach of duties;

  • complaint retaliation;

  • rights enforcement retaliation;

  • tenants association retaliation; or

  • children in premises.
The "mandatory refusal" provisions operate even if only one of these grounds is found, and even though the landlord can show valid reasons for eviction are otherwise present.

Tenants are cautioned that - historically - the application of these "mandatory refusal" provisions has been rare, and that the courts often resist them. The discretionary "relief from forfeiture" provisions are far more widely used, and may usually be based on the same underlying facts that might be relied on for a "mandatory refusal" argument.

. Serious Landlord Breach of Duties

The criteria here is whether the landlord is in serious breach of their responsibilities under this Act or of any "material covenant" in the tenancy agreement.

For purposes of this provision, most tenant "rights" are landlord "responsibilities". They are set out in Ch.3: "Tenant Rights and Remedies", and include rights to repair and maintenance, vital services, privacy, reasonable enjoyment of the premises, and to be free from harassment. That chapter should be reviewed thoroughly.

"Material covenants" refers to additional rights of the tenant (ie. ones not derived directly from the Residential Tenancies Act) granted by express terms of the tenancy agreement, or by terms that the common law will impute into the tenancy agreement. As the RTA is so exhaustive in terms of codifying tenant rights these will be relatively few these days, but they could (arguably) include such things as a denial of extra services that were originally agreed to (even car parking when it is otherwise unavailable). "Material" as the term is used here means substantial or basic, and material covenants are often characterized legally as "going to the root of the contract".

Note that this provision only operates when the breach is "serious". This term is necessarily vague but makes it clear that mere technical or minor breaches will not trigger it. Tenants should always try to demonstrate how they have been harmed, threatened or inconvenienced by the landlord's breach.

. Complaint Retaliation

The criteria here is that the reason for the eviction application being brought is that the tenant has complained to a governmental authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards.

It will always be difficult to demonstrate the landlord's motivation for initiating termination proceedings, so - barring any express threats or admissions by them - usually this ground of mandatory refusal will have to be shown by the circumstances in which the termination proceedings arise.

For example, take a tenant who has resided in the premises for years without incident, then commences a series of polite but firm written requests to the landlord to address a repair problem - followed by a formal government complaint after these requests are met with silence or inaction. If - shortly after the complaint is filed (and presumably the landlord has been contacted by the authority) the termination proceedings are commenced, then there is a strong "circumstantial" case that the termination is retaliatory under this category.

. Rights Enforcement Retaliation

This ground of "mandatory refusal" is that the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.

This is very similar to "complaint retaliation" (above) except much broader in terms of the triggering events. 'Attempting to secure or enforce legal rights' can include a repair request to the landlord citing one's RTA rights, initiation of a tenant rights application to the Board, commencing a lawsuit, or anything similar as long as it is grounded on asserting legal rights.

. Tenants Association Retaliation

This ground for "mandatory refusal" is that the landlord's application being brought because the tenant is, or has recently become, a member of a tenants' association or is attempting to organize such an association". It is self-explanatory.

. Children in Premises

This "mandatory refusal" criteria is that the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

Essentially, this is based on the principle that "adult-only" buildings are illegal. If the tenant can convince the Board that the landlord is attempting to create or maintain a building - or even a unit - as "adults only" then this ground could operate.

Useful evidence for such a case would be landlord advertising, evidence from other (friendly) tenants that few or no other tenants have children there, past landlord treatment of those who have children born while they reside there, etc.

Note the exception for "overcrowding". If the landlord is truly asserting an "overcrowding" situation they should proceed under the specific termination provisions for that reason [see Ch.6, s.6: "Early Termination for Cause: Overcrowding"]. "Overcrowding" in that section is defined as "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)]. The landlord would have to present evidence of such a legal violation before they could rely on this basis of avoiding the "children in premises" ground for mandatory refusal.


6. "Tenant Rights" Defence to Money Claims

Most termination and eviction proceedings by landlords involve "ancillary" or parallel requests for orders for arrears of rent and "overhold" compensation [see Ch.4, s.4(h): "Termination Fundamentals: General Landlord Termination and Eviction Procedures: Ancillary Landlord Remedies: Tenants Rights Defence"].

A tenant responding to any such ancillary money claim has the right to argue in "defence" any tenants rights breaches which could have been raised by way of separate tenant application to the Board [see Ch.3, s.5: "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications; Act s.82(1), 87(2)]. This "defence" does not require a separate tenant application, and the issue may simply be argued at the termination and eviction hearing.

Where this is done, the Board has available to it the full range or remedial orders that would be available to it under such a tenant application [Act s.82(2)]. These are quite extensive and vary with the nature of the rights breach alleged, so see Ch.3, s.5 as noted above. Most commonly they would be manifest as deductions from the landlord's monetary claim in the form of retroactive "rent abatements", what most lawyers would call a 'set-off' argument.

Note that this same tenant's rights defence is available against termination and eviction proceedings (ie. the main orders of termination and eviction) based on non-payment of rent [see Ch.7, s.9: "Non-Payment of Rent Termination: Tenant Rights Defences"; Act s.82(1)], because is a ground of termination that is all about money owed between the parties.

Use of this new "tenant rights" defence is tempting, but it does open the door to frantic, ill-prepared and last-minute defence issues which I predict the Board will quickly grow impatient with. It was designed to legitimize "rent withhold" strategies used by tenant in past (with limited success) to address chronic landlord breach issues. Indeed, the RTA expressly directs the Board, when considering the making of tenant's rights remedial orders, to "consider whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the Board" [Act s.30(2)]. See additional tactical comments in Ch.7, s.9(c): "Non-Payment of Rent Terminations: Tenant's Right Defences: Tactics".


7. Tactical Use of s.194 Mediated Settlements and Conditional Orders

(a) Overview

The RTA establishes special categories [Act s.78, 194] of Board-mediated (ie. by Board staff mediators) conditional settlements of cases [see Ch.14, s.2: "Hearings, Orders and Enforcement: Mediatiated Settlements"], and similar "conditional (Board) orders" [see Ch.14, s.6(d): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Final Orders: Conditions on Orders"].

As is explained below, these can sometimes be used as a "last resort" tactical option in a weak case. Tenants should however be extremely cautious about entering into such mediated settlements as they can seriously compromise their rights.
Note:
Be aware that the Act also establishes some "non-mediated" forms of settlements for non-payment of rent terminations cases. The special s.194 conditions discussed in this section do not apply to that type of settlement [see Ch.7, s.10: "Non-Payment of Rent Terminations: Settlement Orders"].

Further, there is nothing in the RTA which prevents parties from reaching their own settlements of cases, with or without having the terms confirmed in Board Orders [see Ch.14, s.3: "Hearings, Orders and Enforcement: Unmediated Settlements"].
(b) s.194 Mediated Settlements

A "mediated settlement" is one which involves the services of a Board staff mediator. That is, in order to invoke the special provisions discussed in this section, a mediator must be formally involved - even if the parties have already worked out terms on their own.

While "settlements" of cases have been going on ever since there have been lawyers, the main significance of a "mediated settlement" under the RTA is that it can contain terms which otherwise violate the tenant-protection (or any) provisions of the RTA.

Essentially, if a "mediated settlement" is later breached (or even just alleged to be breached), the landlord may recommence termination and eviction procedures by way of an expedited s.78 "ex parte" (no notice to tenant, no hearing) application, supported by affidavit evidence only [see Ch.8, s.3: "Other Termination Procedures: Ex Parte Applications on Breach of Mediated Settlement"]. It is the availability of this expedited procedure - without notice to the tenant - that makes mediated settlements "last resort".

(c) Conditional Orders

In addition to "mediated settlements" the Board may on it's own (ie. without the involvement of a mediator) make similar conditional orders, which - if breached (or if alleged to be breached) - entitle the landlord to apply to the Board using the s.78 expedited ex parte procedures referred to above.

However - unlike mediated settlements - these "conditional orders" may not contain terms which otherwise violate the RTA tenant (or other) protections.
Note:
Be aware that "mediated settlements" may also be confirmed (ie. embodied within) Board Orders. If this is done, they are still "mediated settlements" as per (b) above, with the attendent legal implications described there.
(d) Tactical Comments

As will be seen when the ex parte application procedures (after breach) are reviewed in Ch.8 [see reference above], those procedures are quite drastic in their removal of a tenant's normal procedural rights (ie. no notice of the application, no hearing). A tenant on the receiving end of such a proceeding will not likely even know that there is a problem until they get served with the Board termination and eviction Order. Then they have to scamper to have the Order set aside [see Ch.8, s.3(g)], which many will not be able to do in time. As such, tenants should not easily consent to or encourage such settlements or Orders.

However, when they have a weak - but otherwise sympathetic - case that they don't want to risk losing completely at hearing, tenants may want to consider using them as a "last resort". This can be done before the hearing if the landlord is willing to accept a mediated settlement, or otherwise in closing tenant submissions to the Board at the end of the case (but before the ruling): ie. "if the Board is inclined to rule against me, I am willing to accept whatever terms of a conditional Order that the Board thinks are appropriate in order to preserve the tenancy".

Be aware that Board members have in past encouraged mediations on the reasoning that they allow more flexible solutions than the Board's jurisdiction does, or - frankly - because they may be facing an excessive caseload. Due to the "last chance" situation that a mediated settlement puts a tenant in, they should be careful not to agree to mediation simply as a convenience to the Board.


8. A Case Study in Defence

(a) Overview

This section is meant to illustrate practical considerations involved in a tenant defence, drawing on the law explained in section 1-7 above.

(b) The Example Facts

Our example is a landlord attempting a "first contravention" termination and eviction for the reason of "overcrowding". The landlord is alleging that there are too many people living in the unit. The tenant's situation is that some of his brother's family have been sleeping over recently because there was a fire in their apartment building and the building inspector has declared it unsafe. The number of people each night is variable as they are also staying with their parents some nights, and they have moved some of their stuff over for safe-keeping.

The law relating to "overcrowding" termination is set out in Ch.6, s.6: "Early Termination for Cause: Overcrowding".

(c) Procedural Defences

"Overcrowding" is one of the several causes for termination that give the tenant a "remedial oppourtunity" to 'fix the problem'. "Overcrowding" itself is the situation where "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" [see s.16].

A landlord alleging this ground of termination and eviction must satisfactorily negotiate of all of the following procedural requirements (all of which the tenant should be familiar with):
  • The Notice of Termination must provide for a 20-day notice period (for first contravention) based on overcrowding;

  • The landlord must give the tenant a seven-day "remedial oppourtunity" before they can apply to the Board by "Notice of Application" to continue the process.

    If, in this period (counted from the date of service of the Notice of Termination), the tenant reduces the overcrowding down to acceptable levels, the landlord should not proceed to the Board application stage (subject of course to their later right to initiate "second contravention" termination for overcrowding and other associated causes of termination on new facts). If the landlord continues to proceed to the application stage despite the reduction having taken place, the tenant can argue the issue as an additional "merits" defence (see below).

  • If however the overcrowding is "cured" within the seven day "remedial oppourtunity" and the landlord does not proceed to the application stage at that time, and then another (listed) cause of termination is alleged to have re-occurred within the next six months, the landlord may issue a "second contravention" Notice of Termination with a 14-day notice period. These "second contravention" triggering causes can only include:

    - damage,
    - substantial interference with reasonable enjoyment,
    - overcrowding (ie. a second allegation),
    - social housing income misrepresentation, or
    - illegal activities [Act s.61(1),(2)(a)].

  • Notices of Termination expire 30 days after the date of termination set out in them (non-payment of rent is an exception) [Act s.46]. After that the landlord cannot rely on that Notice to support their application to terminate and evict.

  • The landlord must meet all of the above timelines in accordance with the rules for service of documents [see Ch.13, s.8: "General Board Procedures: Service and Filing of Documents" (for example, mail service is not legally effective until the fifth day AFTER mailing [Act s.191(3)]).
Failure of the landlord to strictly meet any of these procedural requirements is a procedural defence which may result in the dismissal of the landlord's application to terminate and evict. The tenant should know these requirements as well as - or better than - the landlord.

(d) Defence "On the Merits"

. Overview

In any termination and eviction proceeding, the landlord bears the burden of proving the preconditions required to grant the application. If the tenant can undermine, disprove or otherwise prevent that proof from being made out then the landlord's application should fail.

Again, the landlord must prove that [Act s.67(1)]: "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."

. Analyze

These elements can - and should - be broken down into their constituent elements (all of which the landlord must prove) and analyzed, as follows:
  • "the health, safety or housing standards required by law" (as they relate to overcrowding).

    Perhaps the landlord will just assert that "there are too many people" and "it's only a one-bedroom apartment" and hope for the best. Or perhaps the landlord is relying on a written lease restricting the number of people (which is trumped by the 'non-waiver' provisions of s.4 of the Act) without demonstrating to the court (by referring to or filing copies of applicable laws) that there is an actual legal standards violation as this ground of termination requires. Such laws are often municipal laws, and failure to show or prove the law that is being violated (by filing a copy of it) should be fatal to the landlord's case (the Board will normally 'take notice' of provincial and federal laws without them having to be given copies of them, but this should not be relied on and copies should be provided). But is it a reasonably current version of the law? Is the landlord's interpretation of the requirements of that law accurate?

  • "the number of persons occupying the rental unit"

    It can be very difficult for a landlord to prove this without a tenant's co-operation in admitting of the facts. All they usually have is anecdotal observations from staff or neighbours that there are 'lots of people' coming and going from the apartment. As well, the legal conclusion that a particular person 'lives somewhere' is not a clear-cut one: what is to distinguish a long-term guest from an 'occupant'? So unless the tenant is prepared to admit the number (which they may want to do at hearing as both a tactical and an ethical matter), the tenant can challenge this evidence by cross-examining (eg. re infrequency of observations, possibility of double-counting, etc).

  • "occupying the rental unit on a continuing basis"

    On the facts of this example the tenant can argue that the occupation is only "temporary", and explain the circumstances that gave rise to it. The likelihood of the situation being resolved once they 'find a new place' should be emphasized, and the brother or his family should testify as to their efforts to date to find a new place.
And don't forget - if - in the seven-day "remedial oppourtunity", the tenant did reduce occupany - that should defeat the application right there. Bring the people in to testify when they moved.

Basic principles of evidence and hearing presentation are explained in Ch.14.s.5: "Hearings, Orders and Enforcement: Evidence".

. Think, Reason, Plan

These are just examples. Once you understand the basic procedural and legal requirements of the landlord's case, developing your defence case becomes pretty much a process of common sense and brainstorming - and lawyers have no monopoly on those. Talk about the case with family and friends, get their ideas and follow up on them (children often have some of the best ideas as they tend to think 'out of the box').

(e) Positive Defences

Remember, "positive defences" [s.5 above] can be raised even if the landlord has successfully satisfied their procedural requirements and proven their case "on the merits". However the practical burden of proof here now shifts to the tenant.

Are there any conditions which justify a "mandatory refusal" of the landlord's application [see s.5(c), above]? For example: is the termination a retaliation based on a recent history of repair dispute, privacy intrusions, complaints to authorities by the tenant?

What are the respective inconveniences and risks to the parties if the application is refused [see s.5(b), above]? The Board is required by law to consider this balance and whether it should exercise its "relief from forfeiture" discretion to refuse or delay the Order sought. Does it look like the situation will be resolved shortly (perhaps the brother can attend with a freshly signed lease for a new place, effective next month)? Is there a real safety, health or fire risk or is the landlord just speculating? Does the brother's family have any other place to go? Could eviction force them into a shelter with the kids being seized by Children's Aid?.

(f) Mediated Settlements and Conditional Orders

If all else fails, and the tenant's case looks poor, offer to accept a mediated settlement [as per s.7 above], or a "conditional order" which gives the landlord 'quick & dirty eviction' rights if they allege breach of the conditions agreed to (in my view, this really should be a last resort). Strict conditions in such a case might include a low fixed limit on the number of occupants - and perhaps even random inspection rights by the landlord.
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