Utility Costs and Post-Tenancy Property Damage New Hope for Landlords – Could Bill 184 be that Hope?

What do the Ontario Legislature’s executive branch, the judicial branch, the Landlord & Tenant Board (LTB), and Landlords all have in common? They have set the wheels in motion before the legislature in the passing of Bill 184 https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-184 and creating the legal foundation for a Landlord to finally make a claim at the LTB for Utility Costs and Property Damages up to one year after the Tenant Vacates or is evicted from the rental unit.

After years of lobbying and numerous arguments over jurisdiction put before the courts, finally, new hope that Landlords will not find themselves before the Small Claims Court spending extraordinary time and expense arguing for jurisdiction, tracking down their former tenants’ whereabouts, filing voluminous court documents, arguing motions, and litigating at trial.

But for Mike Harris’s government, failing to ensure equal rights of landlords and tenants in the passing of Bill 96 – Tenant Protection Act, 1996, a Landlord, over the past almost 20 years could have simply filed their application at the Landlord and Tenant Board after paying the application filing fee, locate and serve the Tenant and have their claim for utility costs and property damages heard within the exclusive jurisdiction of the Landlord and Tenant Board rather than the extensive task of having to go before courts.

It is well-known knowledge that utility costs and damages don’t usually crystallize until after the tenant has vacated the property, and why should the Landlord have to cover costs for their former tenant’s hydro, gas, and water consumption or have the unpaid water levied on property tax and spend a considerable amount of time and money in litigation before the Small Claims Court to obtain judgement? Why shouldn’t a landlord have a similar right of jurisdiction before the LTB that a tenant has? The lobbying has reduced the “gap” in the legal system and the solution rests in the passing and enactment of the provisions set out in Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020 before the Ontario legislature.

You see, up until now, Tenants may file a claim against their former Landlord up to one-year after they vacate the rental property, but (surprisingly) former landlords are not granted a similar right to file against their former tenants. This naturally, has created a variety of complications for both Landlords and Tenants. For example; landlords and tenants having to split their cases before the LTB and Small Claims Court and the landlord having the grueling tasks of arguing jurisdiction and the provisions of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 alongside common law principals of contract law before the Small Claims Court, and the former tenant having the jurisdiction to have their claim heard separately by making claims for rent abatement, harassment, interference, and human rights violations before the government-appointed executives and specialized Members of the LTB under the umbrella of “Social Justice.”

The Executive Branch of government has come along way in the past 76 years in its efforts in obtaining the control and exclusive jurisdiction over all landlord and tenant disputes after being forced by lobbying businesses to repel rent regulation in Ontario under the National Housing Act 1944 in under a decade (https://en.wikipedia.org/wiki/Rent_control_in_Ontario).

Even when the Progressive Conservative government of Mike Harris in June of 1998.[3] took the control of rent increases, eviction, arrears, and dispute resolution from the Ontario court system (the judicial branch of government) and assigning jurisdiction to a newly created quasi-judicial body (the executive branch) the Ontario Rental Housing Tribunal.[5] (the now Landlord and Tenant Board), claims for utility costs and, damages and arrears that crystallized after a tenant vacates a property remained within the exclusive jurisdiction of the small claims court, the Landlord and Tenant Board does not (currently) have the jurisdiction or authority to hear any of these cases.

It appears now, however, some 70 years later, with the anticipated passing and enactment of Bill 184, (in terms of all landlord and tenant disputes under $35,00.00) will finally be 100% within the “Exclusive Justification” of the executive branches Landlord and Tenant Board and upon the current Conservative Government enacting the provisions of Bill 184, the Landlord and Tenant Board by virtue of section 168 of the Residential Tenancies Act, 2006, S.O. 2006, C. 17 will, indeed, finally have “Exclusive Jurisdiction” to determine all landlord and tenant legal disputes and finally all matters (both landlord and tenant) can all be heard together at one government agency.

Landlords have the power to file, up to one year after the tenant vacates (not the usual two years before the small claims court) the following applications;

  1. File a claim for arrears of rent after a tenant vacates, including the rent that accrues after a tenant breaks a fixed-term lease or fails to give proper 60 days’ notice.
  2. File a claim for general damages after a tenant vacates for interfering with the landlord’s reasonable enjoyment, lawful rights, privileges or interest.
  3. File a claim for compensation after the tenant vacates for outstanding utility costs.
  4. File a claim for property damage after the tenant vacates.

The legislature, however, has passed the buck with regard to service of the Notice of Hearing and Application to Landlord. In the proposed Bill, the RTA will also be amended to include a provision that the landlord must give the tenant or former tenant a copy of the application and a copy of any notice of hearing issued by the Board and must, in specified circumstances, file with the Board a certificate of service.

This is an important point of the new proposed law to remember; If you do not know where your tenants moved to, and you do not serve them, you may have difficulties convincing a Board Member to give you judgment. After all, this is an Administrative Board functioning within a democratic system and all citizens have the right to be heard and make full answer and defense before any court and Administrative (quasi-constitutional) Board.

Collecting information, at the outset of the tenancy from prospective tenant(s) and requesting updated information as the tenancy progresses is also important in collecting outstanding utility costs and damages at a later date. Obtaining plate numbers, and copy of your prospective tenant’s driver’s license, personal and emergency references, accepting rental payment made by cheque and retaining a copy of that cheque, and gathering updated employment information are some very important things to do in increasing your chances of collecting bad debt.

My advice to each and every landlord out there file at the LTB, at the time of your “cause of action,” and when (hopefully) the tenant is still in possession, file your application, and should the Board not have a process in place whereby a landlord can update the utility costs at the hearing (similar to arrears of rent L1/L9 Update Form) you can always seek to amend your application to include all accrued utility costs and or property damages as they crystallize once the tenant moves out.

In Ontario’s current system, there are many challenges landlords face in obtaining a judgment, and collecting against former delinquent tenants. Has the enactment of Bill 184 made those challenges easier? As a matter of procedure and having a “one-stop-shop”for all landlord and tenant disputes before the LTB, I would say, yes. However, without knowing the tenants whereabouts, a landlord will be out of luck once the strict one year limitation period expires.

Lisa Barder is a Licensed Paralegal and has been providing legal services for Landlords since 2001 and has collected hundreds and thousands of dollars and evicted tens of thousands of tenants in her career as a paralegal.  To schedule a one hour consultation with Ms. Barder, you may contact Lisa Barder at barder@landlordparalegal.com or by phone (289) 788-4113.