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  • Petar Guzina

Perpetual Motions: Ontario's Eviction Process During the COVID-19 State of Emergency

In Ontario, the suspension of normal court operations due to the provincially declared emergency due to COVID-19 includes the suspension of enforcement of eviction orders. In addition, the Landlord and Tenant Board (LTB) has stopped all eviction hearings. These restrictions are not absolute as both the LTB and the Court have announced exceptions to the general suspension of eviction hearings and eviction enforcement.

The LTB stated that it would only schedule eviction applications for specific grounds. The most common ground of eviction applied for at the LTB is for non-payment of rent, which, historically, has accounted for approximately two-thirds of landlord applications at the Board. This is not a ground for which the LTB has said it would hold hearings during the provincially declared emergency. As previously noted in my blog the Board suspended all eviction hearings with the exception of matters related to urgent issues such as illegal act or serious impairment of safety. In the same news release the Board stated that "[h]earings related to eviction applications will not be scheduled at this time".

Since then, the Board has released no additional news release respecting the scheduling of eviction hearings during the provincially declared emergency. However, the Board has released a new form titled "Request For Urgent Hearing" in which a party may request an urgent hearing be scheduled.

A review of the instructions for the "Request For Urgent Hearing" form reveals the following:

  • The form is intended for use with applications for termination of the tenancy.

  • The motion form must accompany an application as it is filed or it may be used for applications that have already been filed.

  • Details about why an urgent hearing must be included (the form specifically mentions dates, times, and location of incidents as well as whether the issue is ongoing)

  • The factors to be considered for when an urgent hearing is required are "serious and ongoing health or safety issue at the residential complex or a serious illegal act that occurred at the residential complex."

  • The serious and ongoing risk to health and safety or the illegal act must relate to the original notice and application filed with the Board.

  • If the request is granted the Board will schedule a hearing and notify the parties.

  • If the request is denied the application will be scheduled (or rescheduled as the case may be) once normal Board operations resume.

I have spoken to one person who filed this request with the Board upon it's release to the public. Six days after the Request For Urgent Hearing form was filed, the Board reached out to the requester only to ask for information already provided in the request and to say that the Board is looking at the request. By that time the matter had been resolved (at great expense to the landlord) and the requester had already withdrawn the request and application earlier that morning.

Assuming that a landlord has obtained an eviction order from the Board, eviction will not be enforced unless leave is granted by the Superior Court Justice pursuant to the Court's procedures for an urgent motion. These procedures can be found in the March 15, 2020, Notice issued by the Superior Court of Justice. In short, it involves filing the motion material to the appropriate courthouse where a triage Judge will determine whether or not a matter is urgent and should be scheduled for a hearing. The schedule for service and filing of responding material will also be decided by the triage judge.

As of the writing of this entry, no decision on an urgent motion for the enforcement of an eviction has been published by the Court. The factors to be considered by the Court in such motions are as yet unknown and may not vary much from what the Board has indicated are to be factors for proceeding on an urgent basis during the provincially declared emergency. It is also an open question whether a Court motion for enforcement of an eviction order issued prior to the declared state of emergency would consider factors unrelated to the ground of eviction in the original notice or application.

The motion and motion process set out above appears to be the only lawful route to an eviction in Ontario at the current time.

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