Talk:Constitutional Question, Bankruptcy & RTA Termination

Evidence Issues

• TSL-62310-15-IN (Re), 2015 CanLII 85061 (ON LTB), <https://canlii.ca/t/gmmtc>, retrieved on 2024-11-04

Cases to Review

• Alberta (Attorney General) v. Moloney, 2015 SCC 51 (CanLII), [2015] 3 SCR 327, <https://canlii.ca/t/gm22l>, retrieved on 2024-11-04

Test Case

• Agreed Facts,
  • The (order) for termination was issued on September 25, 2024.
  • The date in the order to pay the arrears by was October 15, 2024.
  • The tenant was issued a stay by way of entry into bankruptcy on October 11, 2024.
  • The request to review was filed on October 15, 2024.
  • The board issued a stay of proceedings for the L1 Order on October 16, 2024, pending a review.
  • There are no reasonable grounds for upholding the review, and thus, the stay must be lifted.

The problem is that under the RTA, there is no way to stop a termination post order under the current schema.

Proposed Constitutional Question

PART 1

Do the automatic stays granted under sections 69(1), 69.1(1), 69.2(1), and 69.3(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985 ("BIA"), operate as a stay for an order of eviction granted under the Residential Tenancies Act, S.O 2006 ("RTA"), where the board has issued an order of eviction by reason only of a finding of arrears that were accrued before the date a bankrupt entered into bankruptcy?

PART 2

If yes to PART 1, then is there an operational conflict of laws between sections 74 (4), and (5), and section 85 of the RTA, with sections 69(1), 69.1(1), 69.2(1), and 69.3(1) of the BIA? By extension, do the conditions set out under sections 74 (4), and (5) that permit a tenant to void an order of eviction operate as an inverted administrative enforcement mechanism, as contemplated in 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52 (CanLII), [2015] 3 SCR 397, by frustrating the purpose and intention of sections 69(1), 69.1(1), 69.2(1), and 69.3(1) of the BIA? (See also: Paterson v. City of Oshawa, 2023 ONSC 2287 (CanLII))

PART 3

If yes to PART 2, then must section 85 of the RTA be found of no force or effect under the authority of Section 52 (1) of the Constitution Act, 1867?

PART 4

Does a finding of constitutional invalidity of section 85 of the RTA, applied to the facts of this case, operate as a stay of eviction in the present case?