The system is grinding to a halt. The heavy load at the province’s rental
housing tribunal combined with the automatic right of appeal to the courts of a
decision a party doesn’t agree with routinely delays justice. The inconsistency of decisions by the
statutory decision makers at the Landlord and Tenant Board is shocking and
rampant. Most of the mistakes come from
the lack of common sense, the overly strict interpretation of the wording of
the statute without giving regard to the purpose of the statute or the real
substance of the disputes. The appellate
body, the Divisional Court, almost always fixes the problem with common sense
decisions. But despite the availability
of the Divisional Court when the Landlord and Tenant Board gets it wrong, it’s
a slow and VERY expensive process that most landlords can’t afford. More than once the Divisional Court has
suggested that the Tribunal and the government get its act together and fix the
problems!
In fact, in 2012 Justice Ted Matlow from the Ontario
Superior Court commented in a decision, an appeal from a Landlord and Tenant
Board order as follows:
My recent experience sitting as a single judge of this Court to hear
motions has convinced me that there is a growing practice by unscrupulous
residential tenants to manipulate the law improperly, and often dishonestly, to
enable them to remain in their rented premises for long periods of time without
having to pay rent to their landlords. It is practice that imposes an unfair
hardship on landlords and reflects badly on the civil justice system in
Ontario. It calls for the Government, the Landlord and Tenant Board and this
Court to respond…… It is my hope that
those in a position to amend the Rules of this Court will consider this
judgment and see fit to restrict the right of appeal in residential landlord
and tenant cases and, perhaps, require that leave to appeal be obtained before
appeals can be brought.
Over the last two decades the appellate courts have made a
number of decisions that have modified the generally accepted interpretation of
the statute as it was when it was introduced.
For instance, jurisprudence since the Act came into force has confirmed
that lease-breaking parties are legal, negating the purpose of lease term as a
benefit to the landlord. A decision in
2006 from the Ontario Court of Appeal struck down a section of the statute that
deemed unlawful rent to be lawful if a year had passed and the tenant had not
made an application about the rent’s lawfulness. This has thrown rent disputes into disarray.
Serious confusion now exists between the jurisdiction of the
Landlord and Tenant Board and the Ontario Small Claims Court. Landlords often bounce back and forth between
the two bodies, finding there is no remedy at either court as each denies
jurisdiction. This is true in case of
utilities as well as monies owed to the landlord after the tenant has moved
out. There is also confusion about cases
that straddle what are normally seen as residential tenancy issues, versus
things that may happen in a rental unit, such as personal injury, but which generally
head to the superior courts or small claims court. The issue of a landlord’s claims for damages
that are legal in nature, not physical damage where something could be repaired
or replaced, is also a grey area in terms of jurisdiction. Confusion reigns!
Finally, the government is struggling with the availability of
affordable housing. The Ontario
government practically begs landlords to rent out units despite the terrible
risk landlords take and the unattractive rental environment the government has
created. The 2011 Strong
Communities Through Affordable Housing Act, and the recently passed Promoting Affordable Housing Act, 2016
which promote inclusionary zoning are honest efforts to create more accessory
suites and affordable housing. But it won’t work and landlords won’t open up
their homes until some of the risk is mitigated, the playing field levelled and
the confusion eliminated.
Many poverty activists are satisfied to retain these tenant-centered policies that are creating this crisis. They imagine that more non-profit housing, built and operated by government will be the result. But the government coffers are empty. Coincidentally, so are hundreds of thousands of potential basement apartments that could be freed up as affordable housing units.
Many poverty activists are satisfied to retain these tenant-centered policies that are creating this crisis. They imagine that more non-profit housing, built and operated by government will be the result. But the government coffers are empty. Coincidentally, so are hundreds of thousands of potential basement apartments that could be freed up as affordable housing units.
On the other side of the coin, maybe it’s time to change the
section 6(2) exemption in the Residential
Tenancies Act that allows buildings built after November 15th,
1991 to be exempt from the provincial rent increase guideline. We now have 25 year’s worth of new buildings,
many in downtown Toronto, that are not rent controlled. While the policy objective was legitimate, this
“forever” exemption from rent increases caps creates uncertainty for tenants,
allows evictions at the landlord’s whim disguised as rent increases, and is
contributing to the high cost of rentals. Today Peter Tabuns, an NDP MPP is introducing the 4th Private Member's Bill since 2011 to eliminate this exemption. Perhaps what the government needs to do is to get rid of the permanent
exemption, and have a sliding scale phase-out period, during which the
allowable increase that can be charged slides back to the provincial guideline
15 years after a building is first occupied.
We need a re-write to create a modern residential tenancy
statute that reflects the realities of 2017.
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