Court File and Parties

COURT FILE NO.: TBD DATE: 20200514 SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

Wladyslaw Rabczak and Halina Rabczak, Applicants

– and –

Jim Dunford and Adriana Zylinski, Respondents

BEFORE: F.L. Myers J.

COUNSEL: Paul Portman, for the Applicants

READ: May 14, 2020

Endorsement

The Application and Outcome

[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.

[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.

The Facts

[6] The applicants are a senior couple who own a house in Toronto. The house is made up of two residential units. The applicants live in the main floor unit. Since 2006, the respondents have been tenants on a month-to-month basis in possession of the second-floor unit.

[7] In January, 2020, the applicants serve a Notice of Termination on the tenants on the basis that they need their granddaughter to move into their house to care for them.

[8] After negotiation, the tenants agreed in writing to terminate their tenancy and leave the premises on June 30, 2020. They signed a Form N11 evidencing their agreement to terminate.

[9] The applicants are quite elderly and say they cannot afford to hire in-home care. They say their health has been adversely affected by social distancing and quarantine required during the current pandemic crisis. Their age and pre-existing health problems put the applicants in the high-risk category of potential covid-19 victims.

[10] By letter dated April 17, 2020, the tenants requested an amendment to their agreement to terminate the tenancy. They too are concerned about the pandemic. They wrote that they had not been able to secure alternative accommodations because many landlords are not showing premises during the crisis. The respondents asked for an extra 3.5 months to find alternative housing.

[11] The landlords assume that this letter means that the tenants will not leave on June 30, 2020 as they had agreed.

The Law

[12] Under ss. 77(1) to (4) of the Residential Tenancies Act, 2006, a landlord may apply to the Landlord and Tenant Board for an eviction order without notice to the tenant where the tenant has agreed in writing to leave. The application may be made before the agreed upon final date of the tenancy. But the eviction order cannot be effective before that date.

[13] A tenant who receives an eviction order under s. 77 is entitled to request an order to set aside the eviction order. Under s. 77(8)(b), after holding a hearing concerning the tenant’s request, the board “ shall make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so .” [Emphasis added.]

[14] That is, even if the tenant has agreed in writing to leave, the board is required to refuse an eviction order where it would not be unfair to do so in all the circumstances. The Legislature has granted the board a broad, fact-based discretion to apply to assess the fairness of the parties’ situation.

[15] Section 83(1) of the statute also provides a similarly worded discretion to the board based on fairness in the circumstances that applies despite anything else in the statute to the contrary. Moreover s. 83(2) of the statute positively prohibits the board from granting an eviction order “unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1)”.

[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, 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.

[19] Finally, I note that the applicants have presumed that the tenants will not leave on June 30, 2020. The respondents have been tenants of the applicants for nearly 15 years. They agreed to leave in writing earlier this year. No one expected the shutdown of the economy wrought by the pandemic. It has left both sides potentially in extreme circumstances. I expect that negotiation among the parties, approached with empathy for the situation the other, will provide the most efficient, affordable, and acceptable outcome and one that is consistent with the cooperation required by all of us in these very unusual and distressing times. If both sides agree, I am available to assist the parties with settlement negotiations.

[20] The applicants’ request to schedule a proposed application is dismissed. Mr. Portman is directed to provide a copy of this endorsement to the respondents.

F.L. Myers J. Date: May 14, 2020