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

Chapter 8 - Other Termination Procedures


  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 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
________________________________________

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 Orders

(a) Overview

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 (1) provide for terms which contravene general RTA tenant protections, and (2) provide for "ex parte" (without notice to the tenant, and usually without hearing by the Board) 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)], establish terms similar in effect to those normally included in mediated settlements (ie. ex parte applications on alleged breach). 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 Order terms may be referred to collectively as "s.78 conditions", referring to the RTA section upon which they are based.
Note:
The Board's interpretation of these ex parte s.78 application provisions [Rule 13] is that they are not available where an application to terminate and evict for non-payment of rent has been settled by a mediated settlement, and the outstanding arrears subsequently have paid off. The argument seems to be that if the first arrears have been paid off, then that ground cannot recur again - and the landlord is limited to a fresh application to terminate for non-payment of rent. I find the reasoning for this conclusion a bit tortured but nonetheless it is a tenant-favourable conclusion.
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.
Such ancillary monetary compensation may be ordered if [Act s.78(3)]:
  • the termination and eviction are granted;

  • the landlord sought arrears of rent 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".
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."
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)]:
  • 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 oppposed to a Board order), additional information respecting that settlement (and any outstanding rent deposit held by the landlord) as follows is required:
  • any amounts paid under the settlement by amount, date and purpose;

  • 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; and

  • "(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".
(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 [Board Rule 26.1]. 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 Orders) "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 January 2010 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.
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