18 Months Rent Free – Tenants Abusing the System

Posted on: Monday, March 6th, 2017

In the case of Nwabue v Rojas 2016 ONSC 7754, out of the Ontario Divisional Court (the “Court”), a tenant was finally ordered to be evicted after living rent-free for 18 months. The tenant, Nwabue, had not been paying rent since April 1, 2015. From that point on, the landlord had been taking the steps required to have the tenant evicted. However, it wasn’t until this decision was released on December 9, 2016 that an order was made by the Court entitling the landlord to file the order with the Court Enforcement Office who would be directed to give vacant possession of the unit to the landlord immediately, or as soon as practicable.

Background Facts

Following the non-payment of rent, the parties in this case requested mediation conducted by the Landlord and Tenant Board’s mediation service which occurred on June 25, 2015. Following mediation, the tenant consented to an order which terminated his tenancy as of July 31, 2015. The landlord agreed to waive all rent arrears and fees owed by the tenant up to June 30, 2015.

Despite this consensual agreement, the tenant refused to move out by the agreed upon date. Instead, two days after the agreement had been made, the tenant requested a review of the order, which was subsequently refused in an order by the Landlord and Tenant Board (the “Board”). As per section 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, any person who is affected by an order of the Board may apply to the Divisional Court within 30 days after the order is received in relation to questions of law. This allowed the tenant to appeal the matter, however, no effort was made by the tenant to set a hearing date. As soon as a tenant appeals, the eviction order is stayed which thus allowed the tenant to live-rent free until the appeal was heard.

In February, March and June 2016, the landlord’s counsel sent letters to the tenant’s known address suggesting possible hearing dates. No response was received from the tenant. A motion was made by the landlord in September 2016 to quash the eviction appeal and was scheduled to be heard on November 22, 2016 with the Court. The tenant did not show up for this motion hearing. However, instead of dismissing the appeal altogether, the motion judge set a hearing date for the appeal to be heard on December 6, 2016.

On November 23, 2016, the notice of hearing date was served and it wasn’t until December 5, 2016, a day before the scheduled hearing, that the tenant “sprang into action”. The tenant sent a letter to the landlord’s counsel objecting to the hearing date on the basis that he had a university exam for his graduate program, and further, that he did not have adequate time to prepare for, and arrange travel to, the hearing. The president of the panel of the Court requested some form of confirmation of this conflicting commitment but no word was received from the tenant by the morning of the hearing date so the hearing proceeded as scheduled.

Decision of the Divisional Court 

The Court dismissed the appeal for lack of merit and costs to the landlord were ordered in the amount of $5,000. The Court concluded that “it is plain that the tenant was evading contact and avoiding a hearing, particularly in light of the fact that he had been in possession of the apartment rent-free since April 1, 2015.” Since the effect of dismissing the appeal would be to lift the stay of the order terminating tenancy, and the initial eviction order had expired, the Court made a new order for vacant possession to be immediately enforced by the Court Enforcement Office.

Practical Considerations 

This case highlights some of the problems that are commonly faced by landlords under the existing regime. There have been numerous criticisms pertaining to the legislative scheme with regards to the amount of time that it takes to get an eviction and how easy it is for tenants to create delays. These issues have arisen in many of cases.

One example is the case of D’Amico v Hitti, 2012 ONSC 4467 which we have previously written about. In this case, Justice Ted Matlow out of the Ontario Superior Court noted that there are many “unscrupulous residential tenants” that will take advantage of the justice system by manipulating the law and taking advantage of legal loopholes. Justice Matlow recognized this problem when reviewing this case, and a number of other similar cases, which prompted him to call for changes to be made in relation to how landlord and tenant disputes are approached and handled within Ontario. Our article on this case can be accessed by clicking here

In response to these widely held criticisms, the government of Ontario has launched a series of consultations surrounding potential changes to the Residential Tenancies Act2006, which include proposals relating to how eviction appeals and hearings are handled and a review of rental increase guidelines.

The content of this Blog is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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