You damaged the unit and your landlord wants you out. Now what?

Apart from not paying rent or the landlord wanting to renovate, sell or move back into a rental unit, tenants in Ontario can also face eviction for issues revolving around their conduct and the way they treat the unit.

There are broadly two sets of circumstances that could lead to such evictions:

• Interfering with others, damage or overcrowding
• Causing serious problems in the unit or complex.

Interfering with others, damage or overcrowding: The N5 process

“Landlords can seek to evict tenants based on them alleging that the tenant, a visitor or someone living with the tenant has substantially interfered with the reasonable enjoyment of the landlord or other tenants, or has substantially interfered with the landlord’s lawful rights or privileges,” explains Samuel Mason, staff lawyer at Parkdale Community Legal Services.

In such a case a landlord may issue the tenant an N5 notice to end tenancy.

Mason says common reasons cited on such a notice include not keeping the unit sufficiently clean, causing damage to the unit, behaviour that may be excessively bothersome to other tenants, or the landlord alleging that the tenant’s behaviour with them, their staff or other tenants was somehow offensive or inappropriate.

However, like all other eviction notices, an N5 does not mean the tenant has to move out. It is only meant to inform them that the landlord is seeking eviction.

If the tenant agrees with the N5 notice

If a tenant agrees with the notice, they have seven days to correct the issues described in order to render it void.

“Say your dog’s barking so loud that it’s interfering with other tenants, you have seven days to fix that. If it’s alleged damage, you have seven days to fix the damage or pay the landlord to repair the damage. So if you do that, your tenancy is secure,” explains Mason.

Thereafter a landlord cannot apply to the Landlord and Tenant Board (LTB) to evict the tenant based on that notice.

If the problem is not corrected within seven days or if this is the second N5 notice to end tenancy in 6 months, the landlord may file an L2 application with the LTB and a hearing will be scheduled.

If the tenant disagrees with the N5 notice

If a tenant does not agree with the issues detailed in the N5, they do not have to move out.

A landlord may file an L2 application with the LTB to request an eviction order and a hearing will be scheduled.

During the hearing, the landlord needs to provide proof that the reasons for eviction in the N5 notice are true and that the tenant did not take any corrective steps to void the N5.

Tenants can present their side of the story and explain why they are disputing the allegations in the N5.

Causing serious problems in the rental unit or residential complex: The N7 process

An N7 notice to end tenancy is issued if the landlord feels the tenant, someone living with them or their guest has caused a serious safety issue in the unit or residential complex, including willful damage.

“So it could be the presence of weapons, violence in the residential complex. Sometimes issues related to fires can be the basis of a landlord alleging serious impairment of safety,” says Mason. “The courts have found that this type of notice has to be for really grave and momentous conduct.”

Because of the seriousness of the alleged issues, an N7 is not voidable like an N5. There is no grace period to fix the issue and landlords may follow up with an L2 application to the LTB for a hearing immediately after serving the notice.

Thereafter a hearing will be scheduled where the landlord is given the opportunity to prove the allegations and the tenant can defend themselves.

Preparing for a hearing

Both the landlord and tenant need to provide evidence to support their arguments at an LTB hearing.

Mason suggests tenants seek legal advice from a community legal clinic or speak to the LTB’s Tenant Duty Counsel for guidance.

“If you have any evidence that you want to rely on before the hearing, like paper documents or photos or videos, you’ll want to make sure you disclose that seven days before the hearing,” says Mason.

The rules on how to submit evidence can be found here on the LTB website.

“If [the tenants] have any witnesses that they want to bring to the hearing, they want to make sure that their witnesses know about how and when to attend. And if you need to summon any witness, so say you need to summon someone from their work, you want to get that paperwork in order well before the hearing starts,” he adds.

In the case of an N7 hearing, Mason advises tenants to try and defend their tenancies even if they agree with the reasons provided in the notice.

“So if the allegations and the notice are not true, they should explain … their sides of the story. Even if the allegations are true, they should still be able to make their defense about why their tenancy should be preserved,” he says.

“Not everything that’s in a notice should result in the termination of a tenancy … the LTB still has to consider the individual circumstances of the tenant and in many occasions, those circumstances outweigh a fair outcome being eviction. So the circumstances outweigh eviction and the board will preserve the tenancy.”

That discretionary power to grant relief from eviction is described in section 83 of the Residential Tenancies Act, which says in part:

“Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
b) order that the enforcement of the order of eviction be postponed for a period of time.”

It adds that if a hearing is held, the LTB shall not grant an eviction application unless it has reviewed the circumstances and considered whether it should exercise those discretionary powers.

“Evicting someone, especially now in Toronto, is pretty grave as an outcome,” says Mason.

If an eviction order is issued, the tenant can choose to comply with it and move out or exercise the option to dispute it.

Disputing an eviction order

If the LTB grants an eviction order, a tenant has two options if they want to dispute it: request to review the order or appeal it.

A request to review is an internal appeal mechanism within the LTB, explains Mason.

“It’s making a request to the LTB saying ‘there are serious errors in the order. I would like to have a re-hearing, or I’d like those errors to be changed,'” he says.

Appealing the order is a process through a divisional court.

“That kind of raises it to the next level of the court system … so it’s going to the appellate level courts,” he says.