Centre for Equality Rights in Accommodation (CERA)
Submission to the Standing Committee on General Government
– Bill 109 Residential Tenancies Act, 2006
The Centre for Equality Rights in Accommodation (CERA), founded in 1987, is a province-wide, non-profit organization that promotes human rights in housing. CERA works to remove the barriers that keep disadvantaged individuals and families from accessing and retaining the housing they need. Since 1999, CERA has been operating a groundbreaking eviction prevention program, providing timely assistance to tenants across Toronto. Through the Early Intervention program, CERA has partnered with the Ontario Rental Housing Tribunal which has included our contact information on information packages distributed to all tenants in Toronto threatened with eviction. As a result of this outreach, CERA staff and volunteers work with over 200 tenant households every month, providing them with information on their rights and obligations, and linking them with resources to help them keep their housing. In addition, CERA staff work closely with housing providers across the City to distribute information on emergency income supports for tenants struggling to pay the rent.
CERA commends the Ontario Government for introducing reforms to landlord and tenant law in Ontario through the Residential Tenancies Act (RTA). In particular, the elimination of the default eviction process is a very positive step towards making landlord and tenant legislation fairer for tenants. At the same time, CERA has a number of serious concerns around some of the changes. Our comments and concerns are explained below.
1.The Elimination of the Default Eviction Process
A key component of the assistance we provide to tenants facing eviction is explaining the dispute process and the 5 day timeline for filing the dispute form. A large proportion of tenants are unaware that they will likely be evicted without a hearing if they do not complete and send in a dispute form. Many tenants are shocked to learn that the 5 days includes weekends and holidays and are late sending the dispute form because they planned to do so Monday morning. As well, many tenants misunderstand the meaning and intention of the dispute form. In the cases of eviction applications for rental arrears, which comprise approximately 85% of eviction applications, many tenants assume that “dispute” means they are disputing the fact that they owe money. Most do not dispute that fact, so often they think they should not send in a dispute form at all, and perhaps not even attend a hearing, since in their minds they have nothing to “dispute”.
The provincial rate of default evictions has been between 50 and 62 percent since 1998 when the Tenant Protection Act was introduced. In Toronto in 2005 alone, almost 30,000 applications for eviction were filed and 15,000 households were issued eviction orders without having had a hearing. We at CERA are ecstatic about the elimination of the default eviction process and that, in theory, every person will get a hearing without having to send in a dispute form. We know that the elimination of the default eviction process could potentially save thousands of people their homes.
However, the potential positive impact of removing the default eviction process is contingent upon a very important second piece, which is to have a set aside process in place for tenants who miss their hearings for legitimate reasons. This set aside process is currently available to tenants under the Tenant Protection Act (TPA) where they have received a default or ex-parte (check) eviction order. For tenants who have missed a hearing, the only available option under the TPA is to request a review of the decision. In order for a review to succeed, a tenant needs to be able to prove that a significant error was made during the hearing or in the ruling. As well, there is a cost of $75 attached to the application, which many tenants simply cannot afford.
There are many legitimate reasons why people could miss their hearings: work, illness, vacation and language barriers are some possible examples. As was mentioned above, some tenants are unaware that they should attend a hearing if they do in fact owe the arrears. In some instances, tenants call CERA after the hearing date has passed, wondering what they should do. In the new process under the RTA, many tenants could miss their hearings if the landlord fails to provide them with a notice of hearing. It is critical that tenants have an effective and accessible avenue for recourse if they miss their hearing for legitimate reasons.
The proposed Residential Tenancies Act does not address this issue. This is a critical shortcoming of the Bill. If the current review process is used, we will potentially see large numbers of tenants evicted unjustly. Without a set aside process, access to justice under the new act will be significantly compromised. The elimination of the default eviction process will completely lose its effect.
2. Section 82 – Tenant Issues in Application for Non-Payment of Rent
Section 82 allows tenants to raise issues such as maintenance or repairs in defense of an eviction application based on arrears. This is a very positive and important reform. Under the current process, tenants must file their own applications against the landlord in order to raise such issues. Many tenants do not file applications against their landlords for various reasons – the system seems too complicated or they can’t afford a lawyer and feel they don’t have the expertise to represent themselves at a hearing. Often tenants are frustrated and feel that nothing they do will force their landlords to take care of their units.
CERA staff recently spoke to a woman living with her two children in a one bedroom apartment infested with cockroaches and mice. She said that her kids sleep in the bedroom and she sleeps in the living room. She has not had a full night’s sleep in months because she is skittish all the time at hearing and seeing the bugs and rodents around her all night. She said she has become depressed because of her living situation and a serious lack of sleep. She was one and a half months in arrears and had an upcoming eviction hearing. She wanted to address these issues at the hearing but we had to advise her that, under the current legislation, it would be difficult to do so. She began to cry on the phone. She said she didn’t think she had the physical energy to even fill out a tenant application. As much as she hated where she lived, she was also terrified of being evicted and becoming homeless. We were seriously concerned for her mental and physical well being, and consequentially, the well being of her children. Under the proposed changes in the Residential Tenancies Act she would be able to raise these very important issues at her hearing, thus giving her some sense of control over the process and likely shedding light on a really bad landlord. Landlords are well aware that most tenants will not go so far as to file applications against them, and since maintenance and repair issues currently cannot be raised effectively at eviction hearings, they have no reason to fear tenants’ recourse to adjudication.
3.Sections 63 and 65 – Expedited Evictions
Section 63 of the proposed Residential Tenancies Act, in conjunction with section 80(2), provides for an expedited eviction process where a tenant, another occupant of the apartment, or a person who the tenant permits in the residential complex willfully causes undue damage to the apartment or “uses the rental unit or residential complex in a manner that is inconsistent with use as residential premises and that causes or can reasonably be expected to cause” significant undue damage to the apartment or residential complex. Specifically, landlords will be able to provide a notice period of 10 days without an opportunity to address the problem. It will also be possible to receive an enforcement date on an eviction order that is earlier than the termination date on the eviction notice.
CERA is concerned that this section of the proposed RTA will be open to abuse by unscrupulous landlords. It could make it very easy for these landlords to evict tenants based on unsubstantiated allegations - and innocent tenants may be evicted before they are even aware that eviction proceedings have started. In other words, landlords will be able to evict tenants through an expedited process before anything has actually happened. In addition, the human rights implications for tenants with disabilities who cannot respond to the short timeframes could be significant. In our view, forcing tenants out of their homes through a fast track eviction process – with the huge individual and societal costs that this inevitably entails – based on the potential for future damage, is simply outrageous.
Section 65 of the RTA permits a landlord who lives in a building with six or fewer units to give tenants in the building reduced notice periods for eviction due to substantial interference with the landlord’s reasonable enjoyment of the building or any associated rights or interests. It also provides no opportunity for the tenant to correct the problem and, thus, opens the door to evictions based on a single incident. In CERA’s experience, “substantial interference” acts as a catch-all ground of eviction open to abuse by landlords wishing to unlawfully evict tenants (e.g. in order to raise rents). Section 65 makes it even easier for landlords to use this ground of eviction inappropriately. Considering the significant proportion of rental units across Ontario in buildings with “six units or less”, this provision will potentially deny a huge number of tenants full protection of the law.
4.Section 100 – Unauthorized Occupant
Section 100 of the proposed Residential Tenancies Act permits the landlord of a unit to evict an occupant where there has been an unauthorized transfer in occupancy. CERA is concerned that spouses or other family members who reside with the tenant could be unfairly evicted as a result of a relationship breakdown or the death of the tenant. For example, where a tenant moves out of unit due to legal action against him for spousal abuse, the landlord could potentially evict the spouse if she is not on the lease. In our view, it would be appropriate to amend this section to include an exemption for family members who have been living with the tenant for at least one year.
5.Vacancy Decontrol
As stated earlier, the vast majority of eviction applications in Ontario are for arrears of rent. People who contact CERA for help related to an impending eviction due to arrears are not always facing a temporary financial crisis. Frequently, they simply cannot afford the rent they are paying. Between 1995 and 2005, average rents in Ontario increased by 28% while the Consumer Price Index increased by only 23%. Increases were particularly dramatic after 1998 when vacancy decontrol was introduced as part of the Tenant Protection Act. Because of these increases, approximately 266,000 tenants in Ontario now pay more than 50% of their incomes toward rent. If we are going to reduce evictions in this province – and bring some semblance of fairness to the rental housing market - it will be critical to provide tenants with protection from unwarranted rent increases.
The provincial Liberals came to power promising to bring back real rent controls. To our dismay, and to the dismay of our clients, this promise has been broken. The Province’s failure to introduce rent control legislation significantly undermines all of the provisions in the Residential Tenancies Act that provide protection for tenants. In our view, without real rent controls, achieving fairness and balance in landlord and tenant relations will be impossible.
- Conclusion
We would like to reiterate our support and commendation for the steps taken by the current government to address the inequities of Landlord and Tenant law in Ontario. In our view, the Tenant Protection Act certainly fell short in its apparent aim to carry out what the title of the act suggests: to protect tenants. The new Residential Tenancies Act is a much welcomed improvement and is fairer to tenants. However, we urge you to consider our concerns and suggestions, which are based on our first hand experience with tenants facing eviction.