Housing Providers, Emergency Services, and the Landlord and Tenant Board In May of 2011, we were retained by a local subsidized housing provider to assist with the eviction of a tenant who was problematic, to say the least. By the time of our firm’s involvement, the tenant had received a series of eviction notices in form and content consistent with the Board’s guidelines, and application had just been made to the Board to terminate the tenancy. Most interesting to us was the fact that the tenant was already “evicted” from the subject unit by police and fire personnel.

How was that possible? The Fire Department can “evict” tenants?

Here’s an excerpt from the Directive that created a very unique twist to this case:

NOTICE Under Section 15 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, To: (Landlord), I (Fire Department employee), an “Assistant to the Fire Marshal”…had reasonable grounds to believe that a risk of fire posed an immediate threat to life at (address), those grounds being:

Accumulation of excessive combustibles to constitute a fire hazard.
Dangerous use and disposal of smokers materials.
Means of egress being obstructed with combustibles and debris preventing escape.
Combustibles too close to service equipment which constitutes a fire hazard.
Accumulation and storage of combustibles and debris creating a hazard to emergency responders.

I have entered this property, without a warrant, under the authority of subsection 15(1) of the Fire Protection and Prevention Act... for the purpose of removing or reducing the threat to life, by implementing one or more of the procedures below:

X Removed persons on the land or premises... etc.

At the time the application to terminate was made to the Board, the tenant was not permitted to reside in the unit, but did have supervised access offered to him on a number of occasions. Was he in possession of the rented premises? Did the Board have jurisdiction in this matter? That was to be seen.

We viewed photos depicting a unit that was literally teeming with a wide variety of refuse, drug paraphernalia, and combustibles, and evidence of willful structural damage sustained over a period of time. Of greatest concern to us, the client, and emergency personnel who had viewed the premises: the smoke alarms were disabled by the tenant. The history suggested that this tampering of safety equipment was a recurring problem. Exacerbating matters, the subject unit was attached to an adjacent tenant occupied dwelling, that housed a family with children. Impaired safety was a real issue here. It was no wonder that the Fire Services Personnel were concerned, and acted swiftly.

This was going to be a challenge.

The Board hearing was held in Barrie on May 26, 2011, a full six weeks after the application was made! Impaired safety applications are supposed to receive priority, and earlier hearings, but that didn’t happen here. Remember, the neighboring tenants and their children were “sitting ducks”, the entire time, as were first responders in the very real likelihood of a fire in the subject unit. The tenant did not attend, or send a representative to speak on his behalf. The subject unit had not been touched by the landlord, other than to secure it, and disconnect services that could potentially fuel a fire.

Witnesses for the landlord: the property standards by-law officer, an official from the fire department, the maintenance/purchasing manager, and the property manager, all of whom gave good testimony related to the state of the unit, the estimated cost to repair, and the degree of the problem in this unit. The applications were for illegal act, and impaired safety, and final termination of the tenancy was the goal. A claim for monetary compensation for the damages was also sought.

Surprisingly, the presiding Member did not jump on the fact that the tenant was no longer occupying the unit at the time the application was made. It was expected that this would be a preliminary issue, and our greatest challenge.

The Member reserved, and took an appropriate amount of time to issue her directive, under the circumstances. The result was not what was needed. The damages claim was awarded in full, and the impaired safety was acknowledged, yet under section 83 of the Act, termination of the tenancy was refused!

I have considered all of the disclosed circumstances in accordance with subsection 83(2)(3) of the Residential Tenancies Act, 2006, (the ‘Act’), and find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1)(a) and 204(1) of the Act. Specifically, on April 7, 2011, the Landlord unlawfully altered the locking system on a door giving entry to the rental unit without giving the tenant replacement keys.

Now what?

Clearly, the Board agreed to jurisdiction, because they awarded in full for the damages portion of the Claim. However, when it came to termination, they decided that the landlord’s removal of the tenant from the unit was inappropriate. Was it the landlord’s decision? Was it “unlawful”?

We challenged the Order from a number of angles, and on July 7, 2011, our Request to Review that Order was denied!

Enter David Strashin, Toronto lawyer extraordinaire, who was presented with the next stage of proceedings, our challenge to the Divisional Court.

David will tell you what happened next, but I will say this story has a happy ending...

At the end of the day, this case illustrates that Tenant Rights may indeed trump even life safety, according to the Board. The landlord was caught in the middle of a Fire Marshal determined to prevent tragedy, and a Board determined that no tenancy will be terminated by anyone other than them.

Exceptional circumstances do arise, and the Board needs to recognize this. Other government agencies such as the Fire Department and Fire Marshal’s Office similarly need to educate themselves in the ways of the Residential Tenancies Act, and the Landlord and Tenant Board. Conflicting statutes should not put real people in harm’s way.

Thankfully, there was no fire, and there was no loss of life. If this tenant remained in control of the subject unit while the landlord waited those six long weeks for a hearing, I have a feeling the outcome would have been much different, and potentially very tragic.

C. April Stewart
Landlord Legal

    What Can you Do If your Tenants Refuse to Leave? It sounds a little “wild, wild, west, doesn’t it? Your problem tenants are finally going to leave…because the Landlord and Tenant Board directed them to do so. What do you do if they are directed to move out, and don’t? Cue the music, kick the tumbleweed. It’s time for the Sheriff.

I’m often asked about this stage of the process. “Is there actually a Sheriff”? Do you picture a leather-faced hombre with spurs, ten gallon hat and a spit-shined revolver in his holster? If so, you’ve got it all wrong.

Here’s the truth about enforcing Landlord and Tenant Board Orders. It’s not nearly as dramatic as you may think.

Case Synopsis:
Tenant Jones receives a Landlord and Tenant Board Order directing him to vacate the rental unit on or before May 31, 2011. On May 31, 2011, Tenant Jones decides to watch television instead.

Landlord Smith knocks on the door at 7:00pm on May 31, 2011 and asks Jones what his intentions are. Tenant Jones shrugs, lights a smoke and says, “Do what you need to do.”

Fortunately, Landlord Smith is a member of the Ontario Landlords Association. He logs in, enters the Help Forum and finds out that he now needs to attend the Enforcement Office at the court house closest to the rental unit, armed with a certified copy of the LTB Order and between three and four hundred dollars.

The Enforcement Office gives Smith a requisition to complete, describing the rental unit and confirming the LTB Order, indicating if the Sheriff can expect to find large pets or any danger at the unit. Smith is sent away and told the date will be booked depending on their schedule, and he will be contacted. This particular process varies slightly by jurisdiction, but that’s the general idea. It’s at least a two week wait in most areas.

On enforcement day, Smith or his authorized representative must meet the Sheriff’s officer(s) at the property, but Smith should NOT, for any reason, approach the subject unit. Once the officer(s) arrive, they will greet Smith, confirm which door is the correct entry, and take his key.

A lock smith arranged and paid for by the landlord is standing by to change the locks. The officer(s) will knock on the door, immediately enter with the key, and announce their presence: “SHERIFF’S OFFICE – IS ANYONE HOME?”, and “clear” the premises, ensuring that no persons, animals or threats exist inside the unit.

What if someone is home? They will be given a brief period of time to grab some belongings, if the landlord agrees. If not, they will be told to leave immediately. Landlord Smith is still waiting out front.

Once the officers, who are employed by the Ministry of the Attorney General, determine that the unit is safe, they will invite the landlord inside to survey the damage and sign important documents giving possession back to the landlord.

Now what?

A notice will be posted on the door by the Sheriff’s officers, directing the tenant(s) to contact the landlord or their authorized agent should they wish to pick up any remaining belongings. They will be given 72 hours within which to do so.

The landlord or their agent needs to be available during this critical period of time, but not for “cherry picking”. There is nothing inappropriate about insisting that the tenant arrive by appointment, with enough people and vehicles to get the job done, and a representative for the landlord absolutely has the right to supervise this process.

What if the LTB Order says May 31st, the landlord thinks the tenants are gone, but there is a ratty sofa, some boxes and a lamp inside the unit? I recommend that if anything of value is inside the unit, don’t take a chance. Book the Sheriff, and don’t leave yourself open to vexatious claims from bitter tenants later on. The 72 hours is a black and white period of time. If you don’t book the Sheriff, you run the risk that the evicted tenants will come back to haunt you, suing you for a two page list of belongings they fully intended to collect.

As they say in the saloon, “It just ain’t worth it”.

C. April Stewart, aka “the Terminator”

April Stewart presented at the September Toronto REIN™ Meeting
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Landlord Legal was Invited by the Ministry of Housing to Discuss Changes to the Residential Tenancy Act and the Landlord and Tenant Board!

April Stewart, of Landlord Legal, is proud to be representing the small business landlords of Ontario on Thursday February 17, 2011, when she meets with the Ministry of Housing Staff in Toronto to plea for the much needed changes to the system governing residential tenancies in Ontario.