What A Tenant Can Do If Their Landlord Obtains an Order to Evict Them

In Ontario, if a landlord and a tenant have a disagreement they cannot resolve on their own, the way they can resolve that disagreement using the judicial system depends on whether or not the rental unit is subject to the Residential Tenancies Act (the “RTA”). To determine whether or not a rental unit is subject to the RTA is a simple matter: If a landlord shares a kitchen or a bathroom with a tenant or with two or more tenants, the RTA does not apply, and disputes would have to be resolved in court. Otherwise, the disputes would be resolved under the RTA, by the Landlord and Tenant Board (the“LTB”). For the purposes of this article, we will be discussing tenancies which are subject to the RTA. 

The LTB resolves disputes between landlords and tenants. Either the landlord or the tenant can apply to have the LTB resolve their dispute. Disputes are resolved through either mediation or adjudication. In mediation, an LTB mediator helps the landlord and the tenant resolve a dispute to the satisfaction of both parties. If one of the parties is not willing to try mediation, or if the LTB mediator is not able to help the parties resolve the dispute to the satisfaction of both parties, a hearing is held. The hearing is presided over by a member of the LTB. The member makes a decision based on the evidence the landlord and tenant present. The member’s decision is released in the form of an “order”. An order is the final written version of the LTB member’s decision.

If the landlord or tenant does not agree with the LTB’s order, there are three things that can be done:

1. A landlord or tenant can fill out and file a document called, “Request to Amend an Order”. This form is filed if the landlord or tenant believes that a clerical error was made (for example, a typing error such as a misspelled name or address, or an error in calculating an amount, or a similar error). In this document, you would explain what the clerical error is and how the order should be changed. There is a box on this form that the applicant can check off if the applicant wants the order put on hold. If the applicant checks off this box, they would explain why the order should be put on hold.

There is a deadline to request the LTB to amend an order: The request to amend an order must be made within 30 days of the date the order was issued. If the deadline is missed, a “Request to
Extend or Shorten Time” is required at the same time to explain why the deadline was missed and why more time should be allowed. A member at the LTB will decide whether or not to grant an
extension of time to the tenant.

There is no fee to make a request to amend an order.

2. The second possible course of action is for a landlord or tenant to fill out and file a document called, “Request to Review an Order”. This form is filed if the landlord or tenant believes that there is a
serious error in the order or if a serious error happened during the proceedings, or if the landlord or tenant was not reasonably able to participate in the process. Requesting that the order be reviewed
will not result in the matter being heard a second time if the landlord or the tenant does not agree with the decision.

Some examples of serious errors are:

• the LTB did not have the authority to decide the issue;
• the member applied the RTA to a situation where it did not apply;
• there was an error in procedure that caused harm to one of the parties;
• the member’s decision was affected by information that was misleading or incorrect;
• the member made a decision that was outside of the usual range of remedies or results, and the member has not explained the outcome in the order; and
• a party did not attend the hearing because they did not receive the Notice of Hearing

Like the Request to Amend an Order, the request must be made within 30 days of the date the order was issued. Once again, if the deadline is missed, the landlord or tenant must file a “Request to Extend or Shorten Time” at the same time.

Examples that may qualify as a party being “not reasonably able to participate in a proceeding” are:

• If the person requesting the review was out of the country, in the hospital, or in police custody when the notice of hearing was served and/or the hearing was held;
• The notice of hearing and other documents were served incorrectly (such as being served to the wrong person, or to the wrong address);
• The party was unable to attend or ask for an adjournment of the proceeding because of a sudden illness, family crisis, extreme weather conditions or transportation problems.

A person can only make one request to review an order, which has a $55.00 filing fee; if that request is denied, they cannot make another request to review an order.

3. If the LTB order contains an error in law, the landlord or tenant can appeal the LTB order to the Divisional Court of the Superior Court of Justice. An “error in law” occurs when the LTB member
incorrectly interprets or applies the RTA. The deadline to appeal the LTB order to the Divisional Court is 30 days after the party receives the order. If the 30-day deadline has passed, the party must
bring a motion to the Divisional Court requesting an extension of time. It is important to note that a party does not have to file a Request to Review an Order with the LTB before they appeal to the
Divisional Court. If a party appeals an order to the Divisional Court, they do have send a copy of the appeal documents to the LTB.

Quite often, the issue is not that the party disagreed with order, but that they did not comply with order. If a landlord is trying to evict a tenant for unpaid rent, or for other reasons, the LTB will often give
the tenant another chance. In such cases, the LTB will issue an order stating that as long as the tenant complies with the terms of the order, the tenant will not be evicted. If, for example, the issue is rent arrears, the terms typically set out a payment schedule for paying the rent as well as arrears.

The LTB’s orders can also state that the landlord is allowed to apply for an order, on an ex parte basis (meaning without a hearing being conducted or without the tenant being notified), evicting the tenant,
if the tenant fails to make the payments according to the schedule or comply with any of the terms of the order.

If a tenant does not agree with the order, they can ask to have the order cancelled (or in legalese, “set aside”), by completing and filing a form called “Motion to Set Aside an Ex Parte Order”.

Please note these materials have been prepared for general information purposes only and do not constitute legal advice. Readers are advised to seek legal advice by contacting Frank Feldman* regarding any specific legal issues.

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