There is much controversy over the recently enacted provisions of Bill 184. Many Critics and Tenants Rights Groups argue that the new laws give an unfair advantage to landlords over tenants. In a recently published CBC Post “Advocates say new Ontario bill gives an unfair advantage to landlords over tenants” https://www.cbc.ca/news/canada/toronto/ontario-rental-tenant-bill-1.5636914, But the reality is that Tenants, who are faced with eviction, actually have a number of opportunities to exercise their “Right to Be Heard” before a Member of the Landlord and Tenant Board.
A Tenant’s first Opportunity will arise upon receipt of the Landlords L1 Application, Notice of Hearing. The Notice of Hearing provides detailed information about the date, time, and location (or call-in number and password) of the hearing date and also sets out the parties’ legal rights and responsibilities. It also provides the parties with the Landlord and Tenant Board’s contact information should they have any questions, In essence, it provides tenants with all the information they need to properly navigate the process and respond to the landlord’s L1 Eviction Application.
SO WHAT IS ALL THE CONTROVERSY ABOUT? The controversy is regarding the legislature’s amendment to section 206 of the Residential Tenancies Act, 2006 (the “Act”). This section of the Act is a provision that allows the parties (on consent) to enter into an Agreement to Settle on negotiated terms of repayment of arrears. In essence, the legislature has provided the parties with a legislated, amicable, method for resolving arrears without having to attend the LTB hearing, which considering the Board’s backlog of cases is a great way of expediting authorized repayment plans and in the event of default, evictions.
Prior to Bill 184s recent amendment to s. 206 of the RTA, the Landlord only had a right to request a reopening of the L1 application in the event of default by the tenant once the Board approved and ordered the Agreement to Settle and canceled the hearing. As a result, s. 206, Agreements to Settle were rarely used by landlords as this particular legislative process, over others, lacked the “teeth” of enforcement and in essence, did not move the matter forward in the government’s remedial eviction proceedings.
The legislature has now amended section 206 and thus given the Landlord the right to file for an “Exparte” Eviction Order by setting out the tenant’s default in terms of that Agreement to Settle in either a sworn Affidavit or Declaration under section 78 of the Act.
The Critics, on the face of their articles, are attempting to make it appear as if the legislature has provided new rights to landlords without providing similar rights to tenants. However, it is my opinion, that this is not the case. The amendment to section 206 of the Act, actually provides both landlords and tenants additional rights under the Act that they did not have prior to the amendment of the law, and those rights are found in section 78 of the Act, specifically, both parties are (essentially) prompted by the Act, to negotiate and resolve the matter themselves without a hearing. The landlord will have the right to file for an exparte order and the tenant is given the right to file a motion to set aside that eviction order.
In my opinion, this particular amendment actually balances out the rights of landlords and tenants, that being one of the main purposes of Act, and prevents delinquent tenants from taking advantage of the system and negotiating repayment plans in “bad faith”. After all, if the tenant knows that any default on repayment would result in an exparte eviction order, wouldn’t that in itself prevent a tenant from entering into an Agreement to Settle that they could not meet?
The Landlords Exparte Eviction (s. 78) Application (L4 Application) and Affidavit or Declaration still needs to be approved by a Member of the Board, and if the Member has any questions or if the Affidavit or Declaration lacks the necessary information to prove the tenant’s breach of the Agreement to Settle, the Member is mandated to set the matter down for a Hearing and the Board will send out Notices to all parties. However, if the paperwork and affidavit provide the information that the Member needs to issue the eviction order, the Board will mail out the Eviction Order to both the Landlord and the Tenant, at which time the Tenant may then exercise their “Rights to be Heard” by filing under section 78 of the Act, a Motion to set-aside an Exparte Order, where the tenant will have the right to attend a hearing and explain why they should not be evicted and the landlord will have the right to explain the breach and why then the tenant should not be given another opportunity to repay the debt.
Under the Rule of Law, all laws should be capable of enforcement, and as a result of the recent Bill 184 amendments to section 206 of the RTA, now landlords can rely on section 206 Agreement to Settle of being capable of enforcement, thus promoting more landlord’s to utilize this process, take the back-log out of the Board and have their matters resolved right away rather than wait for a hearing date months down the road.
Moreover, landlords entering into section 206 Agreements also cover the landlords’ obligation under the new amendment contained in section 83 of the Act. Specifically, that the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant’s arrears during the pandemic https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-184.
The Section 206 Agreement to Settle may be filed today!
If you would like additional information about the section 206 Agreement to Settle, or any LTB process, contact the writer of this blog, Landlord Paralegal Lisa Barder at (289) 788-4113.