Is It True That a Tenant Cannot Be Evicted in the Winter?
A Tenant Can Be Lawfully Evicted at Any Time of Year But the Landlord Tenant Board May Use Discretion and Choose to Postpone the Eviction Because of Hardship Concerns Rather Than Because of Any Actual Mandate to Refrain From Evicting During the Winter.
Understanding Whether a Tenant May Be Evicted During Winter
There is a common belief that the law forbids eviction of a residential tenant during the winter months. This belief is false. The law governing evictions, being the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 is without any provisions that expressly forbid an eviction in the winter; however, the Residential Tenancies Act, 2006 does contain section 83 which provides an adjudicator of the Landlord Tenant Board with the discretionary power to delay an eviction. Specifically, section 83 of the Residential Tenancies Act, 2006 states:
83 (1) 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 eviction order be postponed for a period of time.
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.
(4) The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 49.1, 52, 54 or 55, as the case may be.
(5) If a tenant has given a landlord notice under subsection 53 (2) and subsection 54 (2) or (4) applies, the Board shall not issue an eviction order in a proceeding regarding termination of the tenancy until the landlord has compensated the tenant in accordance with subsection 54 (2) or (4), as applicable.
(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.
(a) is made on or after the day subsection 17 (3) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force; or
(b) was made before that day and was not finally determined before that day.
Accordingly, the adjudicator may choose to refrain from issuing an Order to Evict during the winter months or may choose to issue an Order to Evict with a delayed eviction date. It seems that whereas an adjudicator may refrain from issuing an Order to Evict because it is wintertime, the urban myth was born that a tenant cannot be evicted during the wintertime. Of course, this is a false truth, meaning a perception based on misunderstanding. The misunderstanding arises when people misinterpret the reason that an adjudicator may refrain from issuing an Order to Evict in the wintertime whereas such a decision is a choice based on a discretion. The adjudicator may choose such a discretion out of concern for the hardship that a wintertime eviction would cause rather than because of any mandate in law.
The belief that a wintertime eviction is forbidden is an urban myth. It appears that many people falsely believe a wintertime eviction is illegal merely because the Landlord Tenant Board has the discretion to avoid ordering a wintertime eviction and, whereas the Landlord Tenant Board may frequently exercise that discretion, the urban myth was, incorrectly, born.