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Residential Landlord and Tenant (Ontario) Legal Guide

Chapter 8 - Other Termination Procedures
(01 September 2020)

  1. Unauthorized Occupancy
    (a) Overview
    (b) Application to Terminate Tenancy and Evict
    (c) Ancillary Remedies
    . Against Tenants
    . Against "Unauthorized Occupants"
  2. Application to Evict an Overholding Sub-tenant
    (a) Overview
    (b) Application to Evict
    (c) Ancillary Remedies
    . By Main Tenant
    . By Landlord
  3. Ex Parte Applications on Breach of Mediated Settlement or Conditional Board Orders
    (a) Overview
    (b) No Service to Tenant (Ex Parte Applications)
    (c) Conditions Authorizing Ex Parte Applications
    (d) Ancillary Remedies
    (e) Supporting Documentation
    (f) Limitation
    (g) Tenant's Motion to Set Aside
    (h) Comment
  4. Tenant Property
    Important Note Re Animals
    (a) Overview
    (b) Tenant Property After Vacating Premises Pursuant to Notice/Agreement or Eviction
    . Overview
    . Where Eviction
    . Former Tenant's Application for Determination re Property
    (c) Tenant Property After Abandonment
    . Overview
    . Pre-Conditions
    . Disposal Rules
    . Comment
  5. Terminations of Tenancies and of Interest in Joint Tenancies on Abuse
    (a) General
    (b) Proof of Abuse
    (c) Termination of Interest in Joint Tenancy on Abuse
    (d) Confidentiality
    (e) Entry Post-Notice for Prospective Tenants Restricted
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. Unauthorized Occupancy

(a) Overview

A tenant can 'legitimately' transfer their tenancy to others by following the sub-letting and assignment procedures explained in Ch.1, s.5: "Fundamentals: Subletting, Assignments and Similar Arrangements".

However, where "a tenant transfers the occupancy of a rental unit" other than by the appropriate sub-letting and assignment methods, then the new occupant is considered an "unauthorized occupant" and the landlord may apply to terminate the tenancy and evict both the tenant and the unauthorized occupant [Act s.100(1)].
Note 1:
"Transfer" in this context does not include the situation where a tenant simply lets someone 'move in' with them, such as a sharing partner or 'roommate' [for that see Ch.1, s.5(b): "Fundamentals: Subletting, Assignments and Similar Arrangements: Distinguish Sub-lets from Shared Occupation"]. "Transfer" - as the term is used here - involves the tenant 'giving' the premises to someone, and then themselves moving out, either temporarily (a sublet) or permanently (an assignment) [Act s.2(2)].

Note 2:
Remedies where a sub-tenant "overholds" past the end of their sub-tenancy term are addressed in s.2 below ["Application to Evict an Overholding Sub-tenant"].
(b) Application to Terminate Tenancy and Evict

In a situation of "unauthorized occupancy" the landlord may apply to the Board for orders terminating and evicting the tenant (who allowed the authorized occupancy), and evicting the "unauthorized occupants" (because the "unauthorized occupant" is not a tenant, there is no need to "terminate" them as well) [Act s.100(1)].

Form A2: Application About a Sublet or an Assignment

However, the right to make such application expires 60 days after the landlord learns of the unauthorized occupation [Act s.100(2)]. At that point the landlord is 'deemed' (presumed) in law to have accepted the "unauthorized occupant" as a new "assignee" (essentially a new tenant, but with no vacancy break which would justify a market rent increase) [see Ch.1, s.5(f): "Fundamentals: Subletting, Assignments and Similar Arrangements: Unauthorized Assignments and Overholding Subtenants"; and Act s.104(4)"].

(c) Ancillary Remedies

. Against Tenants

As with any landlord application to terminate and evict a tenant, the landlord has the right to combine with such an application claims for ancillary remedies such as arrears of rent, overhold compensation against the tenant, and legal costs [Act s.87; see Ch.4, s.4(g): "Termination Fundamentals: General Landlord Termination and Eviction Procedures: Ancillary Landlord Remedies".]

. Against "Unauthorized Occupants"

Due to the "non-tenant" status of the "unauthorized occupant" the landlord cannot claims arrears of "rent" (because technically only tenants pay rent).

Therefore the landlord is given specific additional authority to claim "compensation" [Act s.103(1)] against the "unauthorized occupant". Therefore, landlords may, if the "unauthorized occupant" is still in possession of the premises, also seek orders against them for [Act s.87(5), 100(3)(4)]:
  • use and occupation of the rental unit (to be calculated like overhold compensation) [see Ch.4, s.4(h): "Termination Fundamentals: General Landlord Termination and Eviction Procedures: Ancillary Landlord Remedies"];

  • any NSF cheque charges from the landlord's bank (maximum of $20), and

  • the landlord's own NSF cheque fees (maximum of $20).
Note that while the acceptance by a landlord of such compensation from an "unauthorized occupant" does not by itself operate to establish a tenancy [Act s.103(2)] (this is called "non-waiver"), a new tenancy may be established as noted in (b) above by either agreement between the parties or by 60 days delay of the landlord in moving to evict.


2. Application to Evict an Overholding Sub-tenant

(a) Overview

Sub-letting is explained in Ch.1, s.5: "Fundamentals: Subletting, Assignments and Similar Arrangements". Unlike the situation for most tenancies [see Ch.1, s.2(e): "Fundamentals: Formation of a Tenancy: Periodic v Term Tenancies: Automatic Renewal"], sub-tenancies do not automatically renew when their term expires, and the sub-tenant's right of occupancy ends at that time [Act s.97(5)]. This puts such an "overholding sub-tenant" back into a situation similar to that of common law or commercial tenant when a term lease expires: that is, it actually expires with no automatic renewal that most tenants enjoy under the RTA.

(b) Application to Evict

Both the main tenant (the "sublettor") and the landlord have the right to apply to the Board to evict (there is no further legal need to "terminate") an "over-holding" subtenant (ie. if their occupation continues after the end of the sub-let term) [Act s.101(1)].

Form A2: Application About a Sublet or an Assignment

Note however that the right to make such an application expires 60 days after the sub-tenancy ends [Act s.101(2)]. Provisions discussed in Ch.1, s.5(f)["Fundamentals: Subletting, Assignments and Similar Arrangements: Unauthorized Assignments and Overholding Sub-tenants"] explain how an "overholding subtenant" may be converted into a legitimate "assignee" if their occupation continues unchallenged for 60 days after expiry.

(c) Ancillary Remedies

. By Main Tenant

The main tenant may apply for "compensation" against the "overholding sub-tenant" - but only where they are still in possession of the premises at the time of the application [Act s.102]. Otherwise they will have to sue on civil court [see Ch.16: "Civil Remedies"].

. By Landlord

The landlord's right to claim arrears of rent, overhold compensation and NSF cheque charges against an overholding subtenant appears to derive from their general right to claim such ancillary remedies on a termination and eviction proceeding [Act s.87(1)(3)(5); see Ch.4, s,4(h): "Termination Fundamentals: General Landlord Termination and Eviction Procedures: Ancillary Landlord Remedies"]. As is the case with those general provisions, such claims may only be made where the overholding subtenant is still in possession of the premises.


3. Ex Parte Applications on Breach of Mediated Settlement or Conditional Board Orders
Note: With Bill 184, the RTA was amended so that references in s.78 to 'mediated settlements' (meaning Board-mediated settlements) were changed to read 'agreed settlements'. These changes were made to accomodate the COVID non-payment termination [see Ch.7, s.11] changes brought about on 21 July 2020, which did not rely on Board mediation [ie. which could include party-party agreements]. Therefore, please read any reference to 'mediated settlements' in this section, as meaning 'agreed settlements'. I do not make these changes in the text yet as the Bill 184 amendments may be repealed after the COVID crisis.
(a) Overview
Note:
The availability and terms of Board-mediated settlements of applications is discussed in Ch.14, s.2 ["Hearings, Orders and Enforcement: Mediated Settlements"]. Be sure to distinguish those procedures from non-mediated settlements (payment agreements) of non-payment of rent applications which may be converted into Board orders [see Ch.7, s.10: "Non-Payment of Rent Terminations: Settlement Orders"] - and other non-mediated settlements [see Ch.14, s.3 ["Hearings, Orders and Enforcement: Unmediated Settlements"].
"Mediated settlements" (which almost invariably favour landlords) are unique in that they may:
  • provide for terms which contravene general RTA tenant protections,

  • technically they keep the original application 'alive' until further breach by the tenant, although a new application is required to deal with breach of the mediated settlement, and

  • provide for "ex parte" (without notice to the tenant, and usually without hearing by the Board) 'resumption' of the landlord applications for termination, eviction and monetary compensation on the same grounds as were set out in the initial application [Act s.78].
As well, the Board may - under its general jurisdiction to attach conditions to its Orders [Act s.78, 204(1)] ("conditional Board Orders") - establish terms similar in effect to those normally included in mediated settlements. In either case the terms are generally set-up as "last chance" or "shotgun" conditions against the tenant, allowing abbreviated no-notice eviction procedures (and "over-the-counter" Board Orders) if the landlord alleges breach of the terms.

These special mediated settlement or conditional Board Order terms may be referred to collectively as "s.78 conditions", referring to the RTA section upon which they are based.

The following explains the procedures for such applications when a landlord alleges breach of terms of such a mediated settlement or conditional Order.

(b) No Service to Tenant (Ex Parte Applications)

As noted, alleged breaches of s.78 conditions (either resulting from a mediated settlement or a conditional Board Order) allow the landlord to make an ex parte (without notice) application to terminate and evict (normally the landlord has a duty to serve Notice of Application to the tenant). This means that the landlord can allege breach of the conditions unilaterally, not tell the tenant, and move for eviction without the tenant ever knowing about it.

Form L4: Application to End a Tenancy – Tenant Failed to Meet Conditions of a Settlement or Order

Note as well that the normal Board duty to directly advise tenants of landlord applications (by letter) [see Ch.14, s.4(d): "General Board Procedures: Hearings: Comment re Notices of Hearing"] does not apply to applications made under these provisions [Reg s.54(2)]. Therefore, generally tenants will not receive service (and thus notice) of such applications.

(c) Conditions Authorizing Ex Parte Applications

Specific terms must have been included in a mediated settlement or conditional Order to allow the use of these special ex parte applications. Where breach of these terms is absent, then the landlord must proceed under any of the other 'usual' (non-settlement) reasons, causes or procedures available generally to terminate and eviction [see Chapters 4-7] - and of course must satisfy all normal elements that those procedures require.

The elements that must be present for the Board to grant an ex parte application after (an alleged) breach of a mediated settlement or conditional order (and thus to grant the landlord's requested over-the-counter orders for termination and eviction) - are all of the following [Act s.78(1)(6)]:
  • the mediated settlement or conditional Order stemmed from a previous landlord's application to terminate and evict the tenant (the "previous application");

  • the previous settlement or conditional Order must have included terms that:

    - if breached, would resurrect the original ground of termination from the previous application; and

    - allowed the landlord to make application "under this section" [ie. Act s.78] if any such terms were breached.

  • a breach of such term or terms has occured (or more accurately, has been alleged by the landlord - there will be no tenant there to dispute it).
(d) Ancillary Remedies

Requests for ancillary monetary orders (as follows) may be combined with ex parte applications to terminate and evict [Act s.78(7)] [see Ch.4, s.4(h): "Termination Fundamentals: General Landlord Termination and Eviction Procedures: Ancillary Landlord Remedies"]:
  • overholding compensation;

  • any arrears of rent outstanding from any previous settlement, and incurred since the date of the previous settlement or order;

  • NSF cheque charges (from the landlord's bank) outstanding from any previous settlement, and incurred since the date of the previous settlement or order (maximum $20 each);

  • the landlord's NSF cheque "administrative fee" outstanding from any previous settlement, and incurred since the date of the previous settlement or order (maximum $20 each); and

  • amounts outstanding from any previous settlement for the landlord's previous application fees.
To consolidate prior and present ex parte orders, the Board may cancel arrears on any prior order and add them to the present ex parte order [Act 78(7.1)].

Such ancillary monetary compensation may be ordered if [Act s.78(3)]:
  • the termination and eviction are granted;

  • the landlord sought arrears of rent or compensation for the repair or replacement of damaged property in the previous application; and

  • the previous settlement or order ordered required "the tenant to pay rent or some or all of the arrears of rent or compensation for the repair or replacement of damaged property ".
In making any such ancillary monetary Orders, the Board shall credit the tenant the amount of any rent deposit, plus any interest thereon due to the date of termination [Act s.78(8)].

(e) Supporting Documentation

These ex parte applications for termination and eviction must be accompanied by [Act s.78(2)]:
  • a copy of the settlement or order stemming from the previous application; and

  • an affidavit setting out "what conditions of the settlement or order have not been met and how they have not been met."
Note:
'Declarations' are now allowed for as alternatives to affidavits, though they are very particular in format [see Ch.14, s.5(a) "Hearings, Orders and Enforcement: Evidence"].
Where additional requests [as in (d) above] have been made for ancillary monetary compensation, the affidavit must also include the following information [Act s.78(4)]:
  • "(i)f the settlement or order requires the tenant to pay some or all of the arrears of rent", any arrears of rent incurred since the date of the previous settlement or order;

  • any outstanding NSF cheque charges (from the landlord's bank) incurred since the date of the previous mediated settlement or order (maximum $20 each); and

  • any outstanding landlord's NSF cheque "administrative fees" incurred since the date of the previous settlement or order (maximum $20 each).
Further - where the previous application resulted in a mediated settlement (as opposed to a Board order), additional information respecting that settlement (and any outstanding rent deposit held by the landlord) as follows is required:
  • "the amount of compensation for damage payable to the landlord under the terms of the settlement,"

  • any arrears of rent still owing from the settlement;

  • any outstanding NSF cheque charges (from the landlord's bank) still owing under the settlement (maximum $20 each);

  • any outstanding landlord's NSF cheque "administrative fees" still owing under the settlement (maximum $20 each);

  • amounts still owing under the settlement for the landlord's previous application fees;

  • "(t)he amount of any rent deposit, the date it was given and the last period for which interest was paid on the rent deposit", and

  • "(t)he amount and date of each payment made under the terms of the settlement or order and what the payment was for."
(f) Limitation

No application may be made under these ex parte provisions (for termination, eviction or monetary compensation) more than 30 days after the alleged breach of the mediated settlement or conditional order has occured [Act s.78(5)].

(g) Tenant's Motion to Set Aside

Despite the ex parte application processes explained above, it is still Board policy to serve copies of any resulting Orders on the tenant [R22.1]. The tenant, if such an order comes to their attention, has 10 days after the issuance (not service) of the termination and eviction order to make a motion [see Ch.9, s.12: "Board and Other Procedures: Motions"] to the Board to "set aside" such order [Act s.78(9)]. Such 'set aside motions' must be served on the landlord and a hearing will be held.

Form S2: Motion to Set Aside an Ex Parte Order

Upon the filing with the Board of such a motion any such orders are stayed (suspended) [Act s.78(10)], though a copy of the Notice of Motion and Notice of Hearing must be filed with the sheriff by the tenant pending the outcome of the set aside motion [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement: Stays"]. The stay is only effective when filed with the sheriff.

On the hearing of the motion the Board shall do one of the following [Act s.78(11)]:
  • set aside all of the landlord's orders obtained under the ex parte application where the landlord has failed to satisfy the elements required for such an ex parte application [listed in (c): "Conditions Authorizing Ex Parte Applications", above];

  • set aside all of the landlord's orders for termination, eviction and ancillary monetary compensation obtained under the ex parte application, where "the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside" the termination and eviction orders [this is essentially a 'relief from forfeiture provision: see Ch.9, s.5(b): "Termination Defences: Positive Defences: Relief from Forfeiture", below]. Where such a set aside order is made the Board has discretion ("if it considers it appropriate to do so") to amend the previous mediated settlement or conditional order (as the case may be) [Act 78(12)];

    or

  • lift the stay (thus reinstating the ex parte Order) "effective immediately or on a future date specified in the order". This is what happens when the tenant loses the set aside motion.
(h) Comment

As noted above, these ex parte applications procedures do not require either the landlord or the Board to give notice of the Application to the tenant.

This procedural absence make it all the more important (as noted above) for tenants to be particularly careful regarding what terms are included in any mediated settlements or conditional Orders. Further, and depending on how practice evolves, the manner in which these ex parte "breach of mediated settlement" provisions are structured may make it a good idea for tenants to avoid them altogether unless absolutely impossible to do so. In this sense mediated settlements and similar conditional Orders should be viewed as "last chances" for the tenants involved.


4. Tenant Property
Important Note Re Animals
While pets and other animals are considered property for some legal purposes, the provisions of this section dealing with disposition of property found in the tenant's premises after vacating, abandonment, death or eviction of a tenant are influenced by other important and different legal considerations in the case of "left" animals [see Ch.6, s.8: "Early Termination for Cause: Animals in the Premises: Legal Duties towards Animals During the Termination and Eviction Process"].
(a) Overview

Under the common law, a landlord could seize, hold and/or sell a tenant's property as security towards payment of unpaid rent or other claims (called "distress" or "distraint", really a form of lien). This right however has been largely regulated and codified with respect to residential tenancies in Ontario by the Residential Tenancies Act [Act s.40], as explained in this section. These new provisions regulate the keeping, disposal and liquidation of such "left" property generally (upon vacating of the premises, eviction or abandonment) - and for the specific (and traditional) purpose of debt security.

Such property is commonly referred to as "chattel property", and is distinct from "real" property (ie. land and buildings). Chattels are generally characterized by being portable and not firmly "fixed" to real property. Special "left property" provisions apply in the case of mobile home parks and land lease communities [see Ch.2, s.4(f)].

Similar provisions apply in the situation of property upon the death of a tenant [see Ch.4, s.1(d): "Termination Fundamentals: Overview: Death of a Tenant"].

(b) Tenant Property After Vacating Premises Pursuant to Notice/Agreement or Eviction

. Overview

Where a tenant leaves the premises in accordance with proper process [ie. Notice of Termination (by either party), Agreement to Terminate and eviction order and/or actual legal eviction], the below rules apply to the treatment of any chattel property they leave behind.

Firstly, the landlord has a general right to "sell, retain for the landlord's own use or otherwise dispose of" such property [Act s.41(1)].

Further, the landlord is immunized from civil liability to the tenant for exercising such right, as long as it is done "in accordance with this section", being Act s.41.

That said, it is open to the parties to alter these RTA provisions by agreement [Act s.41(5)], thus avoiding the general paramountcy provision of the RTA [Act s.4]. The Act is unclear however as to whether the landlord's immunization from liability also applies to such privately-negotiated arrangements (as the right to engage in them is granted by Act s.41).

. Where Eviction

Where re-possession of the premises has been obtained by the physical execution of an eviction order, the landlord may not exercise this right to "sell, retain ... or otherwise dispose of" the property for 72 hours after the physical eviction [Act s.41(2)].

During this time, the landlord must make the property available to the tenant "to be retrieved at a location close to the rental unit" [Act s.41(3)], from the hours of 8am to 8pm each day [Reg s.46].

. Former Tenant's Application for Determination re Property

A former tenant may make an Application to the Board for a determination of any alleged breaches of the landlord's duties as above regarding the property of an evicted tenant [Act s.41(6)].

Form T2: Application About Tenant Rights

On such an Application, and if such a breach is determined to have occured, the Board may order:
  • that the landlord not breach the obligation again;

  • that the landlord return property in their possession or control to the former tenant;

  • that the landlord pay a specified sum to the tenant for past or future:

    - repair or replacement of property "that was damaged, destroyed or disposed of as a result of the landlord's breach", and

    - "other reasonable out-of-pocket expenses that the former tenant has incurred or will incur as a result of the landlord's breach";

  • an administrative fine against the landlord "not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court [which at 01 September 2019 was $25,000];

  • "any other order that it considers appropriate."
(c) Tenant Property After Abandonment

. Overview

The RTA establishes procedures for dealing with "left" property on "abandonment" of the premises. "Abandonment" occurs where the tenant, while being in arrears of rent, leaves the premises without either themselves or the landlord having issued a Notice of Termination, or without the parties having reached an Agreement to Termination the tenancy.

If the below pre-conditions are met, and in accordance with the below rules, the landlord may dispose of any chattel property left behind by a tenant (or an occupant of the rental unit) on abandonment of the premises.

The landlord is immunized from civil liability to any one for dealing with a tenant's property in accordance with these provisions [Act s.42(8)].

. Pre-Conditions

The below disposal rules apply where the landlord has either [Act s.42(1)]:
  • obtained a Board order terminating the tenancy as abandoned [Act s.79; see Ch.4, s.1(c)], or

  • given Notice to the tenant and to the Board of "the landlord's intention to dispose of the property" (there is no Board-prescribed form for this).
. Disposal Rules

If these conditions have been satisfied, then the landlord may "dispose of any unsafe or unhygienic items immediately" [Act s.42(2)].

Further, after 30 days have expired from the obtaining of the Board order, or the giving of the Notice, the landlord may then "sell, retain for the landlord's own use or otherwise dispose of any other items" [Act s.42(3)]. During those 30 days the tenant may notify the landlord that they intend to remove property, and may do so within those 30 days [Act s.42(4)]. After such notice by the tenant, "the landlord shall make the property available to the tenant at a reasonable time and at a location close to the rental unit" [Act s.42(5)].

However - before allowing the tenant to remove the property, the landlord may require the tenant to pay the landlord for:
  • arrears of rent, and

  • reasonable out-of-pocket expenses incurred by the landlord in "moving, storing or securing the tenant's property" [Act s.42(6)].
Where, within six months after the issuance of the Board order or giving of the notice referred to above, "the tenant claims any of his or her property that the landlord has sold", the tenant is entitled to payment of the net proceeds of such sale, after reduction for arrears of rent and "reasonable out-of-pocket expenses for moving, storing, securing or selling the property" [Act s.42(7)].

The tenant may apply to the Board for an Order for monetary compensation regarding the value of such property:

Form T1: Tenant Application for a Rebate of Money the Landlord Owes

. Comment

Practically, most situations of "abandonment" involve poor tenants who live at the margins of society. Many "abandon" their premises due to incarceration. In these cases the value of any chattel property is usually low or negligible.

To hope that landlords in these circumstances to be willing to comply with the Notice and/or Board order pre-conditions to the operation of these "disposal" rules is unrealistic. I expect that the vast majority of cases of abandonment will be met as they always have been, by property simply being placed out for municipal garbage pickup - or, alternatively to be disposed of directly by privately-hired bulk waste management. While this may leave the landlord liable to the tenant most landlords will risk the unlikely chance of rebate proceedings.

In my opinion these provisions will only rarely operate within their stated procedures. It will be interesting to see how many s.79 abandonment termination Applications are made, and how many required property disposal Notices are filed with the Board.


5. Terminations of Tenancies and of Interest in Joint Tenancies on Abuse
Note:
In 2016 the province amended the RTA to allow abused people, overwhelmingly women and/or their co-habiting children, to break leases (including joint tenancies) when they are suffering from domestic "violence or another form of abuse" from their partners, former partners, co-habitants, family members or those with whom they are dating. The provisions are very difficult to comprehend (no secondary sources I have seen have truly grappled with them), and the issue of 'not being sued for breaking a lease' (because of the rampant pro-landlord market in 2016) is among the least of abused womens' problems. But the effort has some novel legal aspects which should be respected ... so here goes.
(a) General

Amendments to the RTA in 2016 allow a tenant to terminate a tenancy by notice ("N15: Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse") where they or a child residing with them is deemed "to have experienced violence or another form of abuse" (the "victim") [Act 47.1(1), 47.3(1)].

As well, where the victim is a joint tenant, and "provided the notice is given jointly with all the other joint tenants" a 'full' notice of termination may be given (presumably because the dissolution of all the joint tenants terminates to entire tenancy).
Note Where 'Termination' by Only Some Joint Tenants:
But, the amendments also have a novel 'termination of interest in a joint tenancy' (for abuse), where the termination is not with respect to all the joint tenants, but only some - thus allowing the tenancy to continue through one or more remaining tenants [Act 47.1(2)]. These amendments make it clear that this 'termination of interest in a joint tenancy' (if not done by all the joint tenants) does not have the same legal effect as a normal notice of termination [Act 47.2(7)] - although the LTB N15 form [which doubles in purpose for 'normal 'Notice of Termination' and termination of this novel 'interest in a joint-tenancy'] effectively treats it as such, and they may not be far wrong. Terminations of interest in joint tenancy are fully dealt with in sub-section (c) below.
These termination rights override the standard termination notice periods for a monthly (60 days) and other periodic tenancies, and as well the normal rule that a termination may only be given at the end of a term lease or the end of a period of a tenancy [Act 47.1(1)]. Notice shall be served at least 28 days before termination and may be given with a termination date not tied to the end of a period (ie. any date of the month) [Act 47.1(3)].

An N15: "Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse") has the same content as a basic Notice to Terminate [Act 43(1)], requiring identification of the rental unit, the date of termination and the signature of the tenant or their agent, but it must in addition provide documentation demonstrating 'proof of abuse' [ie. one of the listed court orders, or one of the listed 'statements' at (b) below]. Where a court order is used for 'proof of abuse' it must be "issued not more than 90 days before the date the notice is given" [Act 47.1(4)].

(b) Proof of Abuse

For these purposes [Act 47.3(1)] a person (the 'victim') is deemed "to have experienced violence or another form of abuse" where an 'abuser' is subject to abuse-related other legal proceedings ('court order'), or the victim prepares a statement in the proper format ('statement').

"In any proceeding under this Act where one of the issues to be determined by the Board is whether a person is deemed ... to have experienced violence or another form of abuse, the Board may inquire into and make a determination as to whether the documentation accompanying the notice is genuine and is a copy of [a court] order ... or is a [abuse] statement ... but the Board may not inquire into or make any determination as to the truth of or the belief in the truth of any allegation or assertion [in 3 or 5 below]" [Act 47.3(6)].

Court Orders (Three Types)

This 'proof of abuse' is met with evidence of either of the three following court orders:
  • 1. Criminal Code 'Sureties to Keep the Peace' (Peace Bonds)

    . "an order has been made under subsection 810 (3) of the Criminal Code (Canada) against a person mentioned in subsection 47.3(4) and the order includes one or more conditions described in subsection 810 (3.2) of that Act relating to the tenant, the child or the rental unit";

    The 'abuser' under this proof scenario must be either [Act 47.3(4)]:

    • (a) "a spouse or former spouse of the tenant";

    • (b) "a person other than a spouse or former spouse of the tenant, who is living with the tenant in a conjugal relationship outside marriage, or who has lived with the tenant in a conjugal relationship outside marriage for any period of time, whether or not they are living in a conjugal relationship at the time the tenant gives" their Notice of Termination (or Notice of Termination of Interest in Joint Tenancy):

    • (c) a person who is or was in a dating relationship with the tenant; or

    • (d) a person who resides in the rental unit and who is related, including through marriage to the tenant or to a child who resides with the tenant."

    This is a court order called a criminal surety. A person (the 'complainant') may lay an information before a justice of the peace or a provincial court judge (or have an information laid on their behalf), that they "fear() on reasonable grounds that another person (the 'defendant') "(a) will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property; or (b) will commit an offence under section 162" [CCC s.162 is voyeurism] [CCC 810(1)]. If the court is satisfied that the complainant "has reasonable grounds for the fear" then the court may order that the defendent "enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months" [CCC 810(3)].

    If that is issued, and if the order includes one or more below conditions "relating to the tenant, the child or the rental unit", then the complainant is deemed "to have experienced violence or another form of abuse". These conditions are [CCC 810(3.2)]:

    • "prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the case may be, is regularly found; and

    • prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the case may be".
    .
  • 2. Family Law Act (FLA) Restraining Orders

    . "an order has been made under section 46 of the Family Law Act against a person mentioned in subsection 46 (2) of that Act and the order includes one or more provisions described in subsection 46 (3) of that Act relating to the tenant, the child or the rental unit";

    This is about Family Law Act (FLA) restraining orders. A person (the "applicant") may apply for an "interim or final restraining order" against "a spouse or former spouse of the applicant; or ... a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time" "if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody" [FLA 46(1,2)].

    If that restraining order is issued, and if the order includes one or more of the below provisions "relating to the tenant, the child or the rental unit" then the complainant will be deemed "to have experienced violence or another form of abuse" [FLA 46(3)]:

    • (a) "restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody";

    • (b) "restraining the respondent from coming within a specified distance of one or more locations";

    • "specifying one or more exceptions" to (a) and (b) above [I had trouble interpreting this clause, but I think it means that conditions like (a) and (b), with exceptions, typically to enable the respondent to attend at work];

    • any other provision that the court considers appropriate.

    If the FLA order was made against the tenant this does not qualify as 'proof of abuse' [Act 47.3(3)].

  • 3. Children's Law Reform Act (CLRA ) Restraining Orders

    . "an order has been made under section 35 of the Children’s Law Reform Act against a person mentioned in subsection 47.3(4) and the order includes one or more provisions described in subsection 35 (2) of that Act relating to the tenant, the child or the rental unit";

    The 'abuser' under this proof scenario must be either [Act 47.3(4)]:

    • (a) "a spouse or former spouse of the tenant";

    • (b) "a person other than a spouse or former spouse of the tenant, who is living with the tenant in a conjugal relationship outside marriage, or who has lived with the tenant in a conjugal relationship outside marriage for any period of time, whether or not they are living in a conjugal relationship at the time the tenant gives" their Notice of Termination (or Notice of Termination of Interest in Joint Tenancy):

    • (c) a person who is or was in a dating relationship with the tenant; or

    • (d) a person who resides in the rental unit and who is related by blood, marriage or adoption to the tenant or to a child who resides with the tenant."

    A person (the "applicant") may apply for an "interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody" [CLRA 35(1)].

    If that is issued, and if the order includes one or more provisions described below "relating to the tenant, the child or the rental unit", then the complainant is deemed "to have experienced violence or another form of abuse" [CLRA 35(2)]:

    • "restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody";

    • "restraining the respondent from coming within a specified distance of one or more locations";

    • "specifying one or more exceptions" to (a) and (b) above [I had trouble interpreting this clause, but I think it means that conditions like (a) and (b), with exceptions, typically to enable the respondent to attend at work];

    • "any other provision that the court considers appropriate".
The Board may not inquire into or make any determination as to the truth of or the belief in the truth of any allegation or assertion in this CLRA proceeding [Act 47.3(6)].

Victim Statement

Next there are specific allegations, that if supported by this formal "statement" also can provide 'proof of abuse' [Act 47.3(5)]:
  • "the statement shall be in a form approved by the Board":

    Tenant’s Statement About Sexual or Domestic Violence and Abuse

  • "the statement shall identify the rental unit to which it relates";

  • "the statement shall include an assertion that, as a result of the sexual violence or the act or omission committed against the tenant or the child, the tenant believes that he or she or the child may be at risk of harm or injury, if he or she or the child continues to reside in the rental unit";

  • "the statement shall be signed by the tenant", and

  • the statement alleges either:

    • 4. Abuse

      The 'abuser' under this proof scenario must be either [Act 47.3(4)]:

      • (a) "a spouse or former spouse of the tenant";

      • (b) "a person other than a spouse or former spouse of the tenant, who is living with the tenant in a conjugal relationship outside marriage, or who has lived with the tenant in a conjugal relationship outside marriage for any period of time, whether or not they are living in a conjugal relationship at the time the tenant gives" their Notice of Termination (or Notice of Termination of Interest in Joint Tenancy):

      • (c) a person who is or was in a dating relationship with the tenant; or

      • (d) a person who resides in the rental unit and who is related by blood, marriage or adoption to the tenant or to a child who resides with the tenant."

      And the 'abuse' must be "that any of the following acts or omissions has been committed by" an abuser [Act 47.3(1)(d)]:
      (i) an intentional or reckless act or omission that caused bodily harm to the tenant or the child or damage to property,

      (ii) an act or omission or threatened act or omission that caused the tenant or the child to fear for his or her own safety or the child’s safety,

      (iii) forced confinement of the tenant or the child, without lawful authority, or

      (iv) a series of acts which collectively caused the tenant or the child to fear for his or her own safety or the child’s safety, including following, contacting, communicating with, observing or recording the tenant or the child";
      The statement need not specify whether the occurrence is an occurrence of an act or omission as above.

    • 5. Sexual Violence

      "any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation" (sexual violence) has been committed against the tenant or a child residing with the tenant" [Act 47.3(1)(e),(2)];

      The statement need not describe the circumstances of the sexual violence or of the act or omission [Act 47.3(5)(4)(i)].

      The statement need not specify whether the occurrence is an occurrence of sexual violence [Act 47.3(5)(4)(ii)].

      The statement need not "identify the person who is alleged to have committed the sexual violence or the act or omission, either by name or by the person’s relationship to the tenant or the child residing with the tenant" [Act 47.3(5)(4)(iii)].

      The statement need not specify whether the sexual violence or the act or omission is alleged to have been committed against the tenant or a child residing with the tenant [Act 47.3(5)(4)(iv)].

      The Board may not inquire into or make any determination as to the truth of or the belief in the truth of any sexual violence allegation or assertion [Act 47.3(6)].

      or

    • 6. 'Other' [to be specified in Regs; Act 47.3(1)(f)]

      "an act or omission prescribed for the purposes of clause (1) (f) has been committed against the tenant or a child residing with the tenant. [GET REGS re this]

      The statement need not specify whether the occurrence is an occurrence of an act or omission as above.

      If the "sexual violence or an act or omission" allegation [made under 47.3(1)(f)] is made against the tenant this does not qualify as 'proof of abuse' [Act 47.3(3)].
(c) Termination of Interest in Joint Tenancy on Abuse

. Background on Joint Tenancies

Some background is in order first. A "joint tenancy" is essentially a lease with the landlord on one side, and two or more tenants on the other (thus 'joint' amongst the tenants). The typical example would be a married or spousal couple on the tenant's side. Joint tenancies are also common amongst unrelated students (especially with year term leases) where the landlords insists on renting to them collectively rather than individually, because the joint tenancy arrangement has beneficial liability arrangements for the landlord.

The beneficial liability arrangements for the landlord occur when an individual within the joint tenancy wants to leave, then the landlord can assert 'joint and several' liability against the one leaving and the one/s remaining. This commonly puts the previously 'joint tenants' in conflict with each other, with the pressure being on the remaining joint tenants to 'come up with the rent share' of the leaving joint tenants.

. "Termination of Interest in Joint Tenancy"

As part of the new termination of tenancies in abuse situations, these amendments have developed a novel 'Termination of Interest in Joint Tenancy' (my term). It needs to be made plain from the start that this is not normally a conventional termination of a tenancy, because the tenancy remains between the landlord and any 'remaining' tenants (and there normally are - at least the 'abuser') - but the legal 'interest' of the victim joint tenant is what does terminate. They get 'released' from the joint tenancy, and thus from the entire tenancy, in order to be freed from the abuser.

Thus, a joint tenant who is an abuse victim, or who resides with a child who is an abuse victim ["abuse" as proven in (c) above], may terminate a monthly, yearly or term tenancy early on terms similar to those set for termination of (non-joint) tenancies in sub-section (a) [Act 47.2(1)].

The "N15: Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse" (that's the LTB language for it) period is 28 days [Act 47.2(3)]:
  • be in a N15: Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse

  • "identify the rental unit for which the notice is given";

  • "state the date on which the interest in the tenancy is to terminate";
    Note:
    That the 'date of termination' on the joint tenancy 'interest' need not coincide with the period of the lease (ie. that the 28 days can occur any date of the month) is consistent with the LTB N15, and consistent with the 'full and normal' non-joint-tenant termination like 47.1(1) - but I can't find any solid support for it in the full 47.1-47.4 amendments. Section 47.2(3) is close ["(3) A notice under subsection (1) shall be given at least 28 days before the date the termination is specified to be effective."], but it doesn't override S.44(2-4) and 47 - like 47.1(1) does.
  • "be signed by the tenant or tenants giving the notice, or their agent"; and

  • be accompanied by 'proof of abuse', as in (b) above [ie. either the listed court order or the 'statement']. If the proof of abuse is a court order it must be "issued not more than 90 days before the date the notice is given".
They may terminate their interest in a joint tenancy either individually, or jointly with some of the other joint tenants [Act 47.2(2)]. These 'other' joint tenants whom the victim terminates the tenancy with do not have to be abuse victims themelves.

If the tenant giving the "N15: Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse" does not leave at or before the termination date set out therein the Notice is void [Act 47.2(5)].

. Effect of Termination of Interest of Joint Tenancy

Here's where this 'termination of interest in joint tenancy' gets significant.

A joint tenant who terminates their 'interest' in the joint tenancy and vacates the unit on or before the termination date (if later it is void) is released from the entire tenancy (ie. both their relationship with the landlord and the other joint tenants) "but this .... does not affect any right or liability of the tenant arising from any breach of obligations that relates to the period before the termination" [Act 47.2(6)].

And, the entitlement to the last month's rent deposit lies with the remaining joint tenants [Act 47.2(8)].

. Status of Remaining Tenants

So a termination of interest in the joint tenancy by the victim, still binds the remaining tenants and the landlord within privity of contacts and within the RTA. The (newly-amended) RTA [Act 47.2(7)] expressly emphasizes the following provisions that they are still bound by [as best I can tell this is done as a reminder to the remaining tenants and the landlord as to their ability to terminate the full tenancy, and on the terms that they can do that]:
  • "If a notice of termination is given in accordance with this Act and the tenant vacates the rental unit in accordance with the notice, the tenancy is terminated on the termination date set out in the notice" [Act 37(2)];

  • "A notice of termination need not be given if a landlord and a tenant have agreed to terminate a tenancy" [Act 37(3)];

  • "A notice of termination becomes void 30 days after the termination date specified in the notice unless,

    (a) the tenant vacates the rental unit before that time; or

    (b) the landlord applies for an order terminating the tenancy and evicting the tenant before that time" [Act 46(1)];

  • "A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy and evicting the tenant if, ... (b) the tenant has given the landlord notice of termination of the tenancy. [Act 77(1)(b)].
This 'reminder' is supported by the ability of the 'remaining' tenants to terminate (the full tenancy) on 60 days notice on the normal manner (and jointly, if there are still remaining joint tenants) as a statutory monthly tenancy, isregarding any time left to run in a term lease [Act 47.2(9,10)].

(d) Confidentiality

. General

When a N15 "Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse" is given to a landlord, they "shall keep confidential and shall not, ... disclose to any person or entity the fact that the notice has been given, the notice or accompanying documentation or any information included in the notice or accompanying documentation" [Act 47.4(1)], except as follows:
  • to an employee in the Ministry of Municipal Affairs and Housing (MMAH), an investigator for investigating alleged offences under the RTA or any other representative of the MMAH, in connection with the investigation or prosecution of an alleged offence under the RTA;

  • "to a law enforcement agency, but only upon request made by the law enforcement agency in connection with an investigation";

  • to a licensed lawyer or a paralegal "who provides services to the landlord";

  • to the Landlord and Tenant Board, an employee in the Board or an official of the Board, for the purposes of any proceeding under this Act where one of the issues to be determined by the Board is whether the Notice was properly given;

  • with the consent of the abused tenant who gave the Notice;

  • "to the extent that the information is available to the public", or

  • "as otherwise required by law".
Some other allowed disclosures are listed in below.

. Disclosure to Remaining Joint Tenants After Abused Tenant Vacates

After an abused joint tenant has vacated the unit in accordance with the N15 "Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse", and as well after the termination date on the Notice, the landlord may disclose to the remaining joint tenants the fact that such a Notice was given and the termination date [Act 47.4(3)].

. Advertising Disclosure Where

A landlord to whom a N15 "Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse" has been given may advertise the rental unit for rent under these alternate conditions [Act 47.4(4)]:
  • "during the notice period, but only if the rental unit is not mentioned in the advertisement and cannot otherwise be identified from the advertisement";

  • "after the tenant or all the joint tenants, as applicable, have vacated the rental unit in accordance with the notice;" or

  • "if the tenant or joint tenants, as applicable, do not vacate the rental unit in accordance with the notice, after the tenancy has otherwise been terminated".
. Disclosure to Staff Where Necessary for Duties

The landlord may disclose "to a superintendent, property manager or any other person who acts on behalf of the landlord with respect to the rental unit" ("staff") where "the person needs to know that fact or requires the notice or accompanying documentation or the information for the purposes of performing the person’s duties on behalf of the landlord with respect to the rental unit" [Act 47.4(5)], the following:
  • the fact that the notice has been given,

  • the notice or accompanying documentation or any information included in the notice or accompanying documentation.
The staff mentioned here are also bound by the confidentiality duties in the same manner as landlords [all of (d) "Confidentiality", above] [Act 47.4(6)].

(e) Post-Notice Entry for Prospective Tenants is Restricted

After a Notice of Termination has been given, a landlord normally has the right to show the unit to prospective tenants without notice as long as they exercise that within a 8am-8pm timeframe, and as long as they make an effort to inform the tenant of that intention beforehand [Act 26(3)]. When a N15 "Tenant's Notice to End my Tenancy Because of Fear of Sexual or Domestic Violence and Abuse" is issued under these 'abuse' provisions they may not do this until "the tenant or all the joint tenants, as applicable, have vacated the unit in accordance with the notice" and in that case, the duty to make an effort to notify the remaining tenants does not apply [Act 47.1(5)].

CC0

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Last modified: 19-01-23
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