This is Harry Fine's personal blog containing his comments on current Ontario legal issues and the current state, complexities and absurdities of landlord and tenant law in Ontario. Harry is a paralegal with over 15 years practicing landlord and tenant, Small Claims and Human Rights law and is a former member of the Landlord and Tenant Board. The comments in this blog do not constitute legal advice.
Saturday, May 13, 2017
Letter to Minister of Housing - The Honourable Chris Ballard
May 13th, 2017
The Honourable Chris Ballard
Minister of Municipal Affairs and Housing 777 Bay St., 17th Floor
I am writing you as a small
landlord in Ontario, looking to you for assistance in navigating Ontario’s difficult and complicated residential
tenancy laws. The playing field is about to become even more unbalanced following the government's April 20th announcement.
The quasi-judicial agency
overseeing rental housing in Ontario, the Landlord and Tenant Board (‘LTB’), is
broken.The heavy load at the provincial
Board combined with the automatic right of appeal of a Board decision to the
courts routinely delays justice.The
inconsistency of decisions by adjudicators at the Landlord and Tenant Board is
shocking.Most of their 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 that’s a slow and VERY expensive process that most landlords
can’t afford.Glaring drafting errors and
oversights have not been fixed through statutory amendment.More than once the Divisional Court has
suggested that the Tribunal and the government get its act together and fix the
Over the last two decades the
appellate courts have made a number of decisions modifying the generally
accepted interpretation of the law.For
instance, a recent appellate decision has confirmed that lease-breaking parties
are legal, negating the purpose of lease
term as a benefit to the landlord.
A decision in 2007 from the
Ontario Court of Appeal, Price v.
Turnbull's Grove Inc., 2007 ONCA 408 (CanLII) struck down a section of the RTA
that deemed unlawful rent to be lawful if a year had passed and the tenant had
not disputed the lawfulness of the rent.This was a result of inadvertent drafting.This decision has thrown rent disputes into
disarray.Evictions for non-payment
can’t happen unless the lawful rent can be determined.Successive governments have had over 10 years
to fix the problem and to this point have ignored it despite the occasional updating
of the Act.
Serious confusion now exists
between the jurisdiction of the Landlord and Tenant Board and the Ontario Small
Claims Court with regards to utilities as well as for damage or rent owed after
a tenant has moved out.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
the LTB’s jurisdiction.
Now this April, this government
has further shifted the balance, discouraging small landlords and driving us
out of the business of creating housing, much of it affordable through basement
second suites.The Ontario government and
non-profit agencies practically beg 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.
The LTB’s Rules of Practice need
amendment related to serving notices of entry.Email is not allowed.Fax is
permitted.Currently, a landlord with a home
in Burlington and a rental in Oshawa wanting to change a furnace filter on the weekend,
would have to drive from Burlington to Oshawa on Thursday or Friday to serve a
notice of entry, return home, and then make the trip again on the weekend to
change the furnace filter.In a day and
age when most faxing is done via email and e-fax, it is ludicrous that the RTA
Rules permit service of notices of entry to tenants by fax and not by
email.Our tenants generally do not have
fax machines, and they all have email.
We urge you to re-consider the elimination
of the s.6 exemption on rent increases.Those of us who are investors in condominiums will have no choice but to
charge higher rents to mitigate the risk of increasing condominium fees or
special assessments which cannot be recovered.Above Guideline Increases can not recover costs incurred through these
types of aggregated expenses.
I am asking specifically for eight
changes to the Residential Tenancies Act
that would assist landlords, restore some balance and create efficiencies:
1.Reconsider the proposed elimination of the s.6
2.Streamline the LTB process to have matters
resolved more quickly, ensuring that rent is paid into the Board by the tenant
if disputes are protracted
3.Fix the confusion currently existing between the
Small Claims Court and the LTB regarding jurisdiction for utilities and
post-occupation claims at Small Claims Court for damage and rent.
4.Amend the RTA provisions regarding “damage” to
make it clear that the LTB is the forum for legal, monetary damages, not just
physical damage, arising in the rental complex.That will go a long way in resolving the LTB vs Small Claims Court confusion.
5.Allow service of notices of entry (not
termination notices) by email if the parties agree in the lease that
communication may be by email and if they have provided their respective
address in the lease.
6.Lease term has become meaningless.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.This
needs fixing.A notice to terminate that
can be remedied (rent N4’s for instance) should not end the tenancy thereby ending
any statutory or common law obligations related to term.
7.Fix the problem caused by Price v. Turnbull's Grove. Governments never intended sections 136
and 116(4) of the Act to operate in this conflicting manner.
8.While theoretically tenants with a non-smoking
lease can be evicted for smoking, the legislation should be more specific.This is especially important with the
impending legalization of marijuana.In
addition, Ontario should specifically ban the proposed “4 plant” rule from all
In summary, I am asking that the
government consider fixing, clarifying and modernizing the Act to make it more
balanced, instead of just amending with the April 20th amendments
which will simply drive more landlords out of the business.
Yours very truly,
cc:Premier Kathleen Wynne PUT LOCAL MPP NAME HERE
AND COPY THEM AS WELL