What Does It Take to Get An Order to Evict During Covid19?

At Present It Appears That Exceptions to the Moratorium on Residential Evictions May Be Granted By the Court Only As Warranted Due to Unlawful Conduct or Concerns Posing Significant Health and Safety Risks. An Order to Evict Must Be Obtained From the Landlord Tenant Board Is First Required.

A Helpful Guide On How to Determine Whether An Eviction Is Possible During the Covid19 Crisis

Eviction Notice Document Shortly following the escalation of the Covid19 Crisis, an Order from the Chief Justice of the Superior Court was issued as a moratorium to suspend eviction of tenants whose tenancies are governed by the Residential Tenancies Act, 2006S.O. 2006, Chapter 17, was implemented.  The moratorium protects tenants subject to an existing, meaning previously issued, eviction Order as well as tenants who might otherwise have become subjected to an eviction process during the period of the moratorium, which currently remains unknown.  Without a definitive explanation, it appears that the moratorium was put into place to protect tenants who became unemployed and lost earnings and thus an incapacity to make full and usual rent payments.  Additionally, the moratorium also appears as for the benefit and protection of society by enabling tenants to comply with social distancing initiatives and thereby reduce the spread of the coronavirus.

As per the Order of the Chief Justice, an eviction may occur only by obtaining special permission granting an exception.  Applying for an exception must be done via urgent Application to the Landlord Tenant Board seeking an Order to Evict followed by an urgent motion to the court seeking permission to enforce the Order to Evict.  Specifically, the Order of the Chief Justice stated at paragraph two:

2.  THIS COURT ORDERS that, during the suspension of regular court operations by the Chief Justice, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended unless the court orders otherwise upon leave being granted to a party by the court pursuant to the court’s procedures for urgent motions.

Recently, an urgent Motion seeking special permission granting an eviction was heard by the Divisional Court per the case of Young v. CRC Self-Help, 2020 ONSC 1874 wherein it was said:

[57]  It is important to emphasize that this motion was brought in the context of the COVID-19 pandemic. On March 20, 2020, Chief Justice Morawetz made an order suspending the eviction of all tenants from their homes in Ontario unless an order is obtained from the Court allowing the eviction.  In addition, the Board itself has suspended all eviction hearings, except for hearings dealing with urgent issues such as illegal acts or matters of impairment of health. On their own, these two initiatives make clear that these are not ordinary times and that everyone has an interest in having a home that allows them to stay healthy and assist in preventing the spread of the virus.

In another case, being the matter of Chalich v. Alhatam, 2020 ONSC 2569 the Divisional Court again heard a motion seeking relief from the eviction moratorium.  In the Chalich case an Order to Evict existed prior to the moratorium Order by the Chief Justice.  Further, the purpose of the Order was to ensure that a tenant would vacate so to comply with contract terms involving a real estate sale requiring that vacant possession of the property be provided to the purchaser.  In denying the relief, and thereby denying enforcement of the Order to Evict, the Divisional Court said:

[18] The landlord argues that the eviction moratorium should apply only to tenants who would otherwise be evicted for non-payment of rent, to protect those who have lost income because of COVID-19. I disagee. There are no limiting terms in the Chief Justice’s order, except for urgent motions. It is not limited to those cases where eviction is related to COVID-19 non-payment of rent; it is not restricted to new evictions arising after March 17th. It applies to all evictions. Given its breadth, the clear intent of the Chief Justice’s eviction moratorium was, during the pandemic, to prevent evictions even though the moratorium could be expected to cause significant economic disruption and adverse financial effects. The Landlord and Tenant Board has also suspended eviction hearings except for those dealing with urgent issues such as illegal acts or threats to health: Young v. CRC Self-Help, 2020 ONSC 1874 (CanLII), para. 57. True emergencies will be dealt with. But the primary interest protected is ensuring that everyone stays home and stays healthy during the lockdown period.

Accordingly, it appears clear that the courts are indeed willing to provide relief from the eviction moratorium only in cases involving illegal conduct or posing safety or health risks and that the potential for significant financial harm is insufficient.

Requires an Order of Eviction

Furthermore, whereas an Application may be brought to the Superior Court via Rule 60.17 of the Rules of the Civil Procedure to seek leave to evict, an Order to Evict must first be obtained from the Landlord Tenant Board.  As was explained succinctly by the Superior Court in the case of Rabczak v. Dunford, 2020 ONSC 3031, the Landlord Tenant Board holds exclusive jurisdiction, as per section 168(2), for all matters governed by the Residential Tenancies Act, 2006; and accordingly, an Order to Evict, for qualifiying tenancies, must be issued by the Landlord Tenant Board prior to an Application to the Superior Court for a lifting of the moratorium on enforcement of evictions.  Essentially, the Superior Court stated that a lifting of the moratorium on enforcement of an eviction is available only where there is first an eviction to enforce.  Specifically it was said in Rabczak that:

[1]  The applicants ask to bring an urgent application pursuant to the Notice to the Profession dated March 15, 2020.  The proposed application seeks leave to evict residential tenants despite the moratorium on residential evictions ordered by the Chief Justice of this court in Attorney General of Ontario v Persons Unknown (unreported, Ont. S.C., March 19, 2020).

[2]  An application for leave to enforce an eviction of a tenant under the terms of the moratorium may be brought as a request for directions under Rule 60.17 of the Rules of Civil Procedure, RRO 1990, Reg 194. See: Morguard Corporation v Corredor, 2020 ONSC 2166 (CanLII).

[3]  However, the landlords have not obtained an order evicting the tenant from the Landlord and Tenant Board. They ask this court to grant an eviction order in light of the urgency of their situation.

[4]  I decline to schedule the proposed application. This court does not have jurisdiction to grant the order sought. The question of whether a landlord may evict a residential tenant is solely within the jurisdiction of the Landlord and Tenant Board under s. 168(2) of the Residential Tenancies Act, 2006, SO 2006, c 17.

[5]  An order for directions to enforce an eviction despite the moratorium ordered by the Chief Justice presupposes that there is already a valid eviction order. Under s. 85 of the Residential Tenancies Act, 2006 an eviction order made by the Landlord and Tenant Board is enforceable by a writ of possession in this court. An application or motion for directions under Rule 60.17 relates to the enforcement of a writ. But there is no writ of possession available until a landlord obtains an eviction order from the Landlord and Tenant Board. This court has no authority to order the eviction of a tenant despite the applicants’ plea of urgency.

...

[16]  In other words, the Legislature requires the board to consider the fairness to the parties in their particular circumstances in every case in which an eviction is requested. Moreover, the discretion to decide the  fairness question on the parties’ particular facts is specifically for the board. It is not an issue delegated to the court. See: 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 (CanLII) at para 31.

[17]  According to the website of the Landlord and Tenant Board, it is open for urgent proceedings relating to safety. That appears to be a basis asserted in the applicants’ proposed proceeding.

[18]  While the applicants are correct that if they wish to enforce an eviction in light of the moratorium in force in Ontario today, they will need leave of the court. However, before asking the court for leave to enforce an eviction order, they first need to obtain an eviction order to enforce. That can only be done at the Landlord and Tenant Board.

As explained, the Superior Court is only able to lift the moratorium to allow an eviction where there is first an Order to Evict.  Without first obtaining an Order to Evict from the Landlord Tenant Board, seeking an Order to lift the moratorium against enforcement of an Order to Evict is premature.

Eviction Ordered

In the case of Neumann v. Anderson2020 ONSC 3518, an eviction with lifting of the moratorium was ordered.  The case involved an eviction Order previously issued by the Landlord Tenant Board.  The landlord, and spouse, were needing to move into the rental unit for 'own use' purposes.  In granting the lifting of the moratorium, and thereby issuing an Order to allow enforcement of the eviction, the court noted that the landlord, and spouse, are front line workers within a hospital and are requiring a 'home' to enable social isolation.  The court also noted that the tenant failed to provide any evidence that the risks to society would be greater or equal if the tenant were evicted.  Specifically, the court said:

[56]  In answer to a question from the court, the applicant advised that he and his spouse both work in the maintenance department of Brantford General Hospital and, in the course of their duties, they are routinely required to access spaces occupied by patients. They may therefore be considered to be front-line workers in the hospital, with an elevated risk of contracting COVID-19 during the pandemic, and a corresponding need to self-isolate as they have been doing. The applicant also responded that he is not aware that any persons other than the respondent reside in or occupy the Unit.

[57]  Although these facts were not contained in the applicant’s supporting affidavit, in my view, it was necessary that the court be provided with this information to carry out an informed review of the relevant circumstances.

[58]  It is noted that the applicant entered into the APS for the sale of his and his spouse’s residence after the imposition of the Eviction Moratorium and did not lead evidence that he made any efforts to seek an extension of the closing date of May 21, 2020 from the purchaser. On the authority of Chalich v. Alhatam these factors may suggest that the applicant’s position is speculative. However, it is noted that the loss which the landlord sought to avoid in Chalich was purely economic and the landlord did not seek the premises for his own occupation. Moreover, the tenant in Chalich led evidence of the impact of his eviction on the societal interests supported by the Eviction Moratorium and the court carried out a balancing exercise between the landlord’s evidence and the tenant’s concerns. In contrast to the present case, Kristjanson J. noted at para. 28 that the tenant had been paying the money ordered by the LTB and had actively sought alternative accommodation. She concluded that “the clear intent of the moratorium is to protect tenants in exactly the kind of situation [the tenant] is in.

[59]  In the case at bar, the respondent, by leading no evidence, has, in my view, failed to discharge the evidential burden on her as described above; hence, no balancing of the relative impacts on societal interests is possible.

[60]  It can be inferred that the respondent wishes to remain in the Unit. However, there is no evidence that she needs to reside in the Unit to further the societal objectives of the Eviction Moratorium. There is also no evidence that the respondent would experience any specific difficulty in finding alternate accommodation. Although I can take judicial notice that the pandemic presents challenges to those seeking housing generally, there is no basis on the evidence to infer that it would be more difficult for the respondent to find alternate housing than for the applicant and his spouse. There is also no basis to infer, in the absence of evidence from her, that the respondent’s failure to pay the arrears of rent and ongoing rent is as a result of economic hardship.

[61]  On the basis of the foregoing I find, after considering the evidence before the court, that it is appropriate in the unique circumstances of this case to permit the eviction to proceed pursuant to the Eviction Order of the LTB.

Accordingly, it does appear that where the court views that society is placed at greater risk by failing to grant a lifting of the moratorium, the moratorium should be lifted and an eviction should be allowed to proceed.

Summary Comment

Recent cases as heard by the Divisional Court via urgent motion make it clear that the courts will grant relief from the eviction moratorium only in cases involving serious unlawful conduct or presenting significant health or safety risks.  Even significant financial harm, such as the potential for litigation and losses arising from a breach of contract for failing to provide vacant possession to a buyer in a real estate deal is insufficient to outweigh the public interest in ensuring tenants may remain secure during the pandemic.  Lastly, prior to seeking permission from the Court to grant relief from the eviction moratorium, and therefore allow enforcement of an Order to Evict, there must first be an Order to Evict.  Obtaining an Order to Evict is the first step.  Obtaining an Order to allow enforcement of the Order to Evict is the next step.


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