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  • Petar Guzina

Ontario Superior Court of Justice Sets Out Guiding Principles for COVID-19 Evictions

In the case of Neumann v. Anderson, 2020 CanLII 36845 (ON SC) the Superior Court of Justice considered an urgent motion to enforce an eviction order and has directed the Court Enforcement Office (Sheriff) to expedite the eviction process. More importantly for advocates, the Court also set out some guiding principles at paragraph 46:

[24] I find that the following principles may be drawn from the foregoing review of the Eviction Moratorium and the relevant case law:

(a) the intent of the Eviction Moratorium is to prevent evictions during the pandemic even though it could be expected to cause significant economic disruption and adverse financial effects. Thus, evidence of significant economic hardship to the landlord and resulting unfairness, viewed conventionally, will not by itself support an order that an eviction proceed;

(b) the interests served by the Eviction Moratorium are societal and directed towards the maintenance of existing shelter arrangements for individuals to assist in preventing the spread of COVID-19 during the pandemic;

(c) the Eviction Moratorium is not restricted to tenants who would otherwise be evicted for non-payment of rent in order to protect those who have lost income due to COVID-19 but applies to all evictions without limitation;

(d) on a motion to permit an eviction to proceed notwithstanding the Eviction Moratorium, the onus is on the landlord, as the moving party, to establish the existence of truly urgent and compelling circumstances which would justify overriding the societal interest that persons continue to shelter in place in order to prevent the spread of COVID-19, in the particular circumstances of the case;

(e) although the categories of urgent and compelling circumstances which may justify an order permitting an eviction to proceed are not closed, ordinarily they will involve illegal acts by the tenant or threats to health caused by the tenant; and

(f) a balancing of the concerns of the tenant and the landlord will be carried out primarily in the context of the societal objectives of the Eviction Moratorium directed towards the prevention of the spread of COVID-19 rather than focussing on economic disruption or economic hardship to the landlord, or conventional understandings of unfairness from a financial perspective.

It is noteworthy that the ground for eviction in this case is outside the scope of grounds to which the Landlord and Tenant Board has stated that they will be limiting their eviction applications during the declared state of emergency. As noted in a couple of earlier blog postings, the Landlord and Tenant Board has suspended the scheduling of all eviction applications and has stated that it is considering urgent motions to schedule hearings only for eviction applications alleging illegal act and serious impairment of safety. In Neumann v. Anderson, 2020 CanLII 36845 (ON SC) the ground for eviction was non-payment of rent and the eviction order was issued on an ex-parte basis on March 12, 2020, due to a breach of a mediated settlement

Since the order was issued the Landlord had entered into an Agreement of Purchase and Sale to sell their own residence and plan to move into the rental unit while they look for a lot to build a new home. There was evidence from the Applicant that there was no where for them to go themselves due to the restrictions put in place by the government.

Also noteworthy is that the Respondent did not file any responding material and did participate in the urgent motion. The lack of response is dealt with in paragraphs 60 and 61 in which the Court explains how the lack of evidence affected the analysis:

[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.

Frankly, I'm surprised that a non-payment of rent eviction is the first to be published on CanLII.

There is also this case that came down a couple weeks ago. Although this is old news for those familiar with residential tenancies law in Ontario, this landlord found out the hard way that the Landlord and Tenant Board has the jurisdiction to order eviction, which must be done before seeking eviction enforcement through an urgent motion. The case is here: Rabczak v. Dunford, 2020 ONSC 3031 (CanLII).

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