Eviction during COVID-19 (LTB)

Morguard Corporation v Corredor, 2020 ONSC 2166 (CanLII)

[2] The landlord brought a proceeding before the Landlord and Tenant Board seeking to evict the tenants. The landlord alleged that eviction was required because the tenant Nicolas C. Lozada Corredor committed a sexual assault in the building complex.

[6] In response to the emergency declared by the government of Ontario in relation to the global COVID-19 pandemic, on March 19, 2020, the Attorney General brought a legal proceeding before Chief Justice Geoffrey B. Morawetz, the Chief Justice of the Ontario Superior Court of Justice. In that proceeding, the Attorney General sought an order “suspending the execution of all writs of possession to evict residents from their homes during the 2019 novel coronavirus pandemic”.

[10] Under s. 85 of the Residential Tenancies Act, 2006, an eviction order is enforced in the same manner as a writ of possession under the Rules of Civil Procedure, RRO 1990, Reg 194. By making an eviction order, the board has essentially given leave for the issuance of a writ of possession under Rule 60.10(1).

[11] However, the Chief Justice’s order has suspended the enforcement of all writs of possession related to residential evictions. The order creates a question as to whether and how the board’s order can or might be enforced. Rule 60.17 provides that “[w]here a question arises in relation to the measures to be taken by a sheriff in carrying out an order” an interested party may make a motion for directions to a judge.

[12] In my respectful view, the order for leave to evict a tenant despite the moratorium imposed by the Chef Justice’s order is properly a motion for directions under Rule 60.17 as supported by Rules 60.03, 60.10, and s. 85 of the statute.

Analysis

[13] Under the Chief Justice order, before a landlord may seek directions to enforce an eviction, it must first obtain leave of the court to make that request “pursuant to the courts procedures for urgent motions”.

[14] As delegate of the Regional Senior Justice in Toronto, I am required to consider whether the proposed motion for directions to lift the suspension meets the urgency requirements of the Notice to the Profession as set out above. In my view it does.

[15] The question of whether the tenant(s) should continue to reside in the building in face of the findings of the board quoted above is both time-sensitive and one that is necessary and appropriate for the court to hear urgently. Important interests of vulnerable third parties may be at stake. I am not today deciding whether the eviction may proceed despite the moratorium ordered by the Chief Justice. The legal basis for an order lifting the moratorium has not yet been briefed or argued by counsel for the parties. However, to allow for that issue to be considered, I grant leave to the landlord to bring a motion for directions on short notice.

[16] The terms set out in Schedule “A” apply to the hearing of this motion for directions.

[17] The landlord shall file an application record and factum in accordance with the Notice to the Profession as soon as possible and by no later than 3:00 p.m. on April 10, 2020. Service shall be made by leaving a copy of the materials in the front door mail-slot of the tenants’ apartment unit in addition to email (if the landlord has an email address for the tenants).

[18] The landlord’s counsel shall serve a copy of this endorsement on the tenant as well.

[19] The matter will be heard by the Court on April 15, 2020.

Chalich v. Alhatam, 2020 ONSC 2569 (CanLII)

[14] As to evictions, the Divisional Court has jurisdiction to hear statutory appeals from the Landlord and Tenant Board under the Residential Tenancies Act, 2006. Once an appeal is dismissed the Divisional Court does not retain jurisdiction to enforce eviction orders except in rare circumstances, for example, the manadamus application in Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII). Section 85 of the Residential Tenancies Act, 2006 provides that an eviction order has the same effect, and shall be enforced in the same manner, as a writ of possession under the Rules of Civil Procedure. In the normal course, eviction orders are enforced by the Sheriff upon filing of the Landlord and Tenant Board’s eviction order and payment of the required fee.

[15] In Morguard Corporation v. Corredor, 2020 ONSC 2166, Myers, J. clarified the enforcement route for eviction orders during the eviction moratorium in Ontario. Rule 60.17 of the Rules of Civil Procedure provides that “[w]here a question arises in relation to the measures to be taken by a sheriff in carrying out an order” a party may make a motion for directions to a judge. As Justice Myers states in para. 12, “the order for leave to evict a tenant despite the moratorium imposed by the Chief Justice’s order is properly a motion for directions under Rule 60.17”, made to a justice of the Superior Court of Justice. Motions for enforcement should not be taken to Divisional Court, and I have no jurisdiction to deal with the motion as a single judge of Divisional Court.

[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 1974 (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.

[19] The burden is on the landlord, as moving party, to establish that this is an urgent situation which requires eviction of the tenant in the middle of the pandemic. The landlord has not identified a truly urgent situation such as illegal acts by the tenant or threats to health caused by the tenant.

[20] The landlord cites the loss of a real estate closing. I find the landlord’s evidence is speculative, and the landlord has not met his burden of establishing irreparable harm or urgent and compelling circumstances. The evidence of harm must be definite rather than speculative: Grant v. Grant, 2020 ONSC 2455. I find the landlord’s evidence speculative.

Atkinson v. Lysak, 2020 ONSC 1878 (CanLII)

10] No motion has been brought by the landlord for leave to evict Ms Atkinson. Unless and until such a motion is brought and is granted by the court, enforcement of the current eviction order is suspended by the order of the Chief Justice. Thus there is no urgent need for this court to intervene: the Chief Justice has done so already.

[11] I wish to be clear with Ms Atkinson about her current situation, however. The Chief Justice’s order suspending evictions continues only so long as regular court operations are suspended. Once that ends, the landlord will be able to enforce the eviction order. Ms Atkinson may pursue a motion for further relief at that time, if she is so minded, but her motion will not be “urgent” until the suspension of enforcement of eviction orders is over.

[12] I appreciate that Ms Atkinson is in a difficult situation. But it is a situation of her own making. She decided to withhold a portion of her rent because she believed that the landlord was in default of his obligations. She was not entitled to do this. Before Favreau J., she argued that she withheld the rent on principle – the implication being that she had retained the disputed rent, not that she had spent it. Nowhere in her materials before this court has she explained why she did not pay the disputed rent into court by February 28, 2020, in accordance with the order of Favreau J.