Court File and Parties
COURT FILE NO.: 20-83655 DATE: 20200615
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JEAN-JACQUES DESGRANGES, Applicant/Landlord AND REIANNA McCLUSKEY, Respondent/Tenant
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Self-Represented Applicant Self-Represented Respondent (did not participate in the hearing)
HEARD: June 15, 2020 by teleconference
Endorsement
H. J. Williams, J.
[1] The landlord requests an order enforcing an eviction order of the Landlord and Tenant Board (“LTB”). On May 28, 2020, the LTB terminated the tenant’s tenancy as of June 2, 2020 and ordered the tenant to move out of the rental unit on or before that day.
[2] The landlord attended the hearing of the motion by teleconference on June 15, 2020. The tenant did not contact the landlord or the court prior to the hearing, filed no materials and did not participate in the hearing, although she was served in accordance with an order I made on June 4, 2020.
Background
[3] The order requested by the landlord is required because of the following order of Chief Justice Morawetz dated March 19, 2020 which imposed a province-wide eviction moratorium:
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.
[4] The landlord’s motion was determined to be urgent by one of my colleagues and was initially scheduled to be heard by telephone on Thursday, June 4, 2020 at 10:00 a.m.
[5] Neither the landlord nor the tenant called in for the hearing that day.
[6] Later that day, I released an endorsement stating that I considered the motion to have been abandoned. I said that I would not have granted the motion in any event because of the manner in which the landlord had served the tenant with his motion materials, which was by email only, with no evidence that the email had been received or read. I said that if the landlord wished to renew the motion, he would be required to request a new hearing date and serve his motion materials, including the May 28, 2020 LTB decision, either through personal service by leaving a copy with the tenant or, alternatively, by sending a copy to the tenant both by email and by taping an envelope addressed to the tenant and containing the motion materials to the front door of the rental unit.
[7] The landlord then rescheduled the motion and filed an affidavit of service indicating that the tenant was served by email and that an envelope containing the motion materials was taped to the front door of her unit on June 9, 2020. The affidavit of service included a photograph of the envelope taped to the door.
The Facts
[8] The LTB found that the landlord had satisfied both the normal test for eviction and the higher test being applied during the COVID-19 pandemic, specifically, that there are urgent circumstances which require the eviction of the tenant.
[9] The LTB found that there had been willful damage to the leased premises and that the tenancy presented a threat to safety. The LTB based its decision on evidence that a large window at the front of the unit had been willfully broken and on the high frequency and number of visitors to the premises, which had not abated following the onset of the COVID-19 pandemic. The LTB heard that visitors to the unit arrived throughout the day and night, that many stayed for only a few minutes and others for extended periods of time, including overnight. There was evidence that the police were watching the property because of suspected drug-related activity. A tenant who cuts the lawn at the property testified that he found both needles and small white baggies, which he said were of the type used for drugs, containing white residue. The same tenant said visitors to the tenant’s unit sometimes gather on the driveway and that the noise from the unit disturbs him and the neighbours at all hours.
[10] In an affidavit, the landlord said that because of the tenant’s conduct, he is concerned about the safety and well-being of his other tenants, the building’s neighbours and himself.
Analysis
[11] In Young v. CRC Self-Help, 2020 ONSC 1874 (Div. Ct.), at para. 57, Favreau J. noted that the Chief Justice’s moratorium on evictions and the LTB’s suspension of eviction hearings other than those dealing with urgent issues such as illegal acts or matters of impairment of health “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.”
[12] In Neumann v. Anderson, 2020 ONSC 3518, Broad J., considered the case law that has developed in the wake of the eviction moratorium and identified the following principles:
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.
[13] I certainly accept, to quote Favreau J., 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 COVID-19 virus. Despite the extraordinary times, however, there is no moratorium that favours willful damage to property. In deciding whether the eviction order should be enforced, as Broad J. noted, the court must consider the societal objectives of the eviction moratorium as they relate to the prevention of the spread of COVID-19. That a tenancy is being exploited for purposes which may actually promote the spread of the virus will weigh heavily in favour of enforcement of the eviction order.
[14] Based on the evidence before me and the submissions of the landlord, I am satisfied that the scale in this case is tipped in favour of enforcement of the eviction. One night in April, in the midst of a pandemic, when no one would welcome a visit to a hospital emergency room, a large object was thrown from the tenant’s unit through its front window, smashing the glass. Glass shards were scattered across the front yard and the pathway leading to the building. The tenant did not contact the landlord. The landlord learned of the broken window and the glass from his brother, who happened to drive by the property the following morning. When the landlord arrived at the building later that day, none of the glass had been cleared away. Even if the shattering of the window had been an accident, the failure to notify the landlord or to pick up the broken glass is evidence of disregard on the part of the tenant for the welfare of those around her. A second window in the unit was also broken, without creating the same danger to the public, but also without the landlord having been informed. There is evidence that the tenant’s unit is being used for illegal activity. Further, the steady stream of people entering and leaving the tenant’s unit at all hours of the day and night, which continued unabated when the pandemic began, is evidence of the tenant’s indifference to the pandemic-related physical distancing expected of all citizens, to her own health and to the health of her visitors and everyone with whom they in turn come into contact.
[15] The landlord was sworn and gave evidence at the hearing of the motion. He assured me that there are no children living in the tenant’s unit. He also suggested the tenant was intentionally avoiding this proceeding. He said she had told another tenant she was being evicted. He also said the envelope with his motion materials was still stuck to front door as of Saturday, June 13, 2020, even though he was aware that she had been in and out of the unit since he taped the envelope to the door on Tuesday, June 9, 2020.
Disposition
[16] For the above reasons, I make the following orders:
The landlord’s motion is granted.
The Court Enforcement Office (the Sheriff) is directed to proceed with the eviction of the tenant from the residential premises described in the May 28, 2020 LTB decision [Unit 1, 361 Iberville St., Ottawa (Vanier)] pursuant to this order and notwithstanding the order of Chief Justice Morawetz dated March 19, 2020 suspending eviction orders.
The Court Enforcement Office (the Sheriff) is requested to expedite the eviction process and to give vacant possession of the unit to the landlord on or after June 16, 2020.
Released: June 15, 2020
COURT FILE NO.: 20-83655 DATE: 20200615
ONTARIO SUPERIOR COURT OF JUSTICE
RE: JEAN-JACQUES DESGRANGES, Applicant/Landlord AND REIANNA McCLUSKEY, Respondent/Tenant
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Self-Represented Applicant Self-Represented Respondent
ENDORSEMENT
Madam Justice H.J. Williams
Released: June 15, 2020