How Can a Tenant Be Evicted During the Covid19 Crisis?

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.
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 at paragraph 57 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.

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.

Theresa Forrest, Paralegal provides Landlord Tenant Board services for clients located in London, Oakville, Niagara Falls, Woodstock, Brantford, among other places.

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