An eviction order doesn’t always mean you have to move

In Ontario, tenants can only be evicted from a rental home if the Landlord and Tenant Board (LTB) issues an eviction order.

However in some specific circumstances, tenants still have recourse and can take steps to preserve their tenancy even if an eviction order has been issued.

Motion to set aside an ex-parte order

“A motion to set aside is a form that a tenant can file when they disagree with an ex-parte order that has been issued for their eviction,” explains Monica Moran-Venegas, staff lawyer at Kensington Bellwoods Community Legal Services.

An ex-parte order is issued when a landlord files for eviction with the LTB without notice to the tenant, which is only possible under specific circumstances.

For example, if a tenant does not meet the conditions of an agreement that was mediated with the landlord, the landlord can file an L4 form with the LTB, titled “Application to End a Tenancy and Evict a Tenant – Tenant Failed to Meet Conditions of a Settlement or Order,” without informing the tenant.

“The Residential Tendencies Act allows under section 78 for a clause to be added to any mediated or consent orders that in the event that … a tenant has breached one of the terms of their agreement, [the landlord] can file then for the tenant’s eviction without notice to the tenant. So that would involve paperwork strictly on the landlord’s part” explains Moran-Venegas.

The only paperwork the tenant will receive from the LTB is a copy of the eviction order that is granted based on the alleged breach of the agreement.

“Say for example, I own a dog and I have been maybe reckless for a little bit with my dog and forgetting to pick up after her in the residential complex … [the landlords have] issued me an N5 notice to end tenancy for interfering with others, causing damage or overcrowding. We go to the LTB and we say, ‘I’ve agreed to be very vigilant to pick up after my dog while on the residential complex,” she says.

The agreement usually has a term of one year and during that time, if the landlord believes the tenant did not keep up their end of the bargain, they have the right to unilaterally file for an eviction, as described above.

“Then I get [the eviction notice] and I read it over and it says [for example] ‘on March 20th, Monica failed to pick up after her dog.’ But I know for a fact I wasn’t actually even in town March 20th,” says Moran-Venegas.

At this point, the tenant has 10 days after receiving the eviction order to file a motion to set aside at the LTB if they want to dispute it.

Moran-Venegas says in such cases, the LTB will issue an interim order which will include a stay of the eviction. A hearing will then be scheduled where the tenant can state their position.

“The important part about this step is that there is no communication freeway between the Landlord and Tenant Board and the court enforcement office, which is the sheriff and they do the actual evicting,” she cautions.

“So I always recommend that once you get this stay, to immediately send it to the landlord and to immediately call your local sheriff’s office to make sure that they know that this stay has happened.”

Motion to void an eviction order for arrears of rent

If a tenant does not pay rent, a landlord can serve the tenant with an an N4 notice to end tenancy for non-payment of rent and then file an L1 application with the LTB to evict the tenant.

If the LTB grants the landlord an eviction order, the order is void if the tenant pays all the monies owed, including any other outstanding fees.

The payments can be made to the landlord or the LTB, or part of the money can be paid to each of them — as long as the amount is paid in full and done so before the sheriff enforces the eviction order.

Full payment automatically voids the eviction order by law, but Moran-Venegas says it is in the tenant’s best interest to nevertheless file a motion to void.

“Essentially they’re saying, ‘yes, I was behind, I paid it all and I want you to void this order so that it doesn’t exist anymore,'” she explains.

The motion to void serves as proof that all outstanding dues have been paid.

“[It’s] something to do for safety reasons, so that everyone knows that you’ve paid everything back and this [eviction] order is officially void on the books.”

She adds that a tenant must once again inform the local sheriff that the amount owed has been paid and a motion to void has been filed.

“Maybe the sheriff’s on their way, but you’ve paid before the sheriff arrives. So there’s a chance that even if you’ve paid everything you can still be evicted … so it’s important to let everyone know that you’ve paid everything, but especially the sheriff,” says Moran-Venegas.

She advises that filing these motions can be intimidating and tenants could seek advice from their local community legal service to ensure proper procedures are followed.