(Disponible en français)
This is a temporary Guideline that addresses issues related to the COVID-19 pandemic. This Guideline will be revoked on a date to determined by the Landlord and Tenant Board (LTB).
Section 83(2) of the Residential Tenancies Act, 2006 (the "RTA") states that if a hearing is held for an application for an order evicting a tenant, the LTB shall not grant the application unless it has reviewed the circumstances and considered whether it should exercise its powers under subsection 83(1).
Subsection 83(1) of the RTA provides that the LTB may:
The circumstances of both the Landlord and the Tenant must be considered by the LTB when determining whether to grant relief from eviction.
The COVID-19 pandemic is a circumstance considered by the LTB when deciding whether to grant discretionary relief from eviction under section 83(1) of the RTA, together with the parties’ other relevant circumstances. While COVID-19 has seriously affected many landlords and tenants, it does not affect everyone equally or in same way. Therefore, when deciding whether to grant relief from eviction, the LTB will consider how each party to the application has been specifically impacted by COVID-19. For example, the LTB Member may consider whether as a result of COVID-19 a party has become ill, has suffered a loss of income or is unable to meet their financial obligations, or faces restrictions in their ability to move and find alternate accommodation. The LTB may also consider any relevant public health directions or advisories in effect on the hearing date.
At the hearing, the parties can provide evidence and submissions about circumstances they believe the LTB Member should consider under section 83. The parties also have a right to ask the other party questions (“cross-examine”) about their evidence.
If a tenant wants the LTB to grant relief from eviction under section 83(1), they should be prepared during the hearing to specify the type of relief they are requesting. For example, the tenant may ask that they have more time to move out or that the tenancy continue if they meet certain ordered conditions. The landlord may respond to the tenant’s request for relief. The LTB Member must consider both parties’ circumstances, including the prejudice each party may experience if the requested relief is granted or not granted, when deciding whether it would be unfair to deny or postpone eviction pursuant to section 83(1) of the RTA.
The LTB also recognizes that COVID related challenges may affect how quickly some parties receive orders once they are issued by the LTB. An LTB Member may order that the enforcement of an eviction order be postponed for a brief period of time pursuant to section 83(1)(b) of the RTA due to such issues. The LTB Member may grant a brief postponement even if the tenant does not attend the hearing or does not request a postponement for this reason. The LTB may also postpone the enforcement of ex parte (without a hearing) eviction orders issued pursuant to sections 77(4) or 78(6) of the RTA for this reason.
On July 21, 2020, the following provision was added to the RTA:
83(6) Without restricting the generality of subsections (1) and (2), if a hearing is held in respect of an application under section 69 for an order evicting a tenant based on arrears of rent arising in whole or in part during the period beginning on March 17, 2020 and ending on the prescribed date, in determining whether to exercise its powers under subsection (1) the Board shall consider whether the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant's arrears.
What this means is that when deciding whether to grant discretionary relief from eviction for an application about rent arrears on or after March 17, 2020, the LTB must also consider whether the landlord tried to reach a payment agreement with the tenant before the hearing. Therefore, at the hearing the parties or their representatives must be prepared to discuss whether the landlord and the tenant tried to reach an agreement. If the parties tried to reach an agreement but were not successful, the details of the negotiations should not be discussed during the hearing because settlement discussions are generally subject to privilege.
Section 83(6) applies to rent arrears that arose, at least in part, starting on March 17, 2020, and ending on a date to be proclaimed by the Lieutenant Governor. As of April 1, 2021, the ending date had not been proclaimed.
See Guideline 7 on "Relief from Eviction" for further discussion on section 83 and relief from eviction.