Destabilizing Tenancy Rights Is Not the Solution to Ontario’s Housing Shortage

Destabilizing Tenancy Rights Is Not the Solution to Ontario’s Housing Shortage

Jonathan Robinson (2016-05-17)

The Ontario government is quietly considering making changes to the Residential Tenancies Act, 2006, the legislation which governs the landlord-tenant relationship in Ontario. Although these changes are pitched as a way to increase the number of housing options for people who rent by choice or necessity, it seems the government believes increased choice must come at the expense of tenants’ rights.

A consultation process is in place for Ontarians to speak their mind, but the lack of publicity is disheartening. With a rental market at least 600,000 units strong, one would hope that the Liberals would announce their intentions with a little more fanfare. Indeed, the first deadline for making submissions already passed in April, though parties were given too little time to respond to the Ministry of Municipal Affairs and Housing consultation paper. So the deadline has been extended until June 30th.

There is time enough, then, for us to take a moment and reflect on the proposed changes, which are part of a long-term “affordable housing strategy” that aims to encourage small landlords and private homeowners to enter the rental market. The reason is not hard to find, of course, as the recent and tragic rooming house fire suggests: Ontario needs more affordable places safe enough for people to call it home.

We must remember that this purpose is central. The government insists it wants to increase the number of “affordable, suitable and adequate” homes for Ontarians. As a result, the consultation paper is pitched as a way to incentivize small landlords to enter the rental market, since increasing this form of housing is instrumental to the broader purpose. It is unfortunate, therefore, that many of the proposed changes seem to be about securing stronger safeguards for landlords and assume that tenants should rest content with (possibly) more choice but (certainly) fewer rights.

More questionable still is the fact that many of the proposed changes are clearly meant to apply to large and small landlords alike. In fact, of the fifteen proposals in the consultation paper, only one explicitly concerns “small landlords”: namely, whether small landlords should be able to prohibit pets. But why must all the other changes apply across the board? There is no reason why this must be so. There are several provisions in the Act today that distinguish between small and large landlords.

Not all of the proposed changes are obviously wrong. Perhaps the Landlord and Tenant Board should be able to help landlords and tenants resolve certain kinds of disputes without the landlord needing to seek eviction at the same time. But the majority of the changes are designed to make the eviction process easier. Some of the highlights of this variety include: not allowing a tenant to raise other issues at arrears evictions without prior disclosure to the landlord; insisting on “proof” by tenants that all arrears are cleared before filing a motion to stay the eviction order, while loosening landlords’ needs to comply with the forms required to start the eviction process, and dispensing with the need for landlords to swear affidavits in support of the (few) motions and applications where they are currently required; limiting the kind of access tenants have to appeal decisions to the Divisional Court; and allowing the Landlord and Tenant Board to roll the results of previous orders against tenants (but not landlords) into more recent ones.

Many things could and indeed should be said about each of these proposals. But let us concentrate on the first as landlord applications for arrears of rent are by far the most common type of application at the Board: approximately 65% of all applications, which number in excess of 80,000 for the last few years for which we have figures (2011-2014). By comparison, all tenant applications account for only 9% of the total.

Sadly, disclosure rules are incredibly lax at the Landlord and Tenant Board. It is not required by default and rarely ordered for either party. Insisting that tenants must provide prior disclosure on the most common application at the Board lest they not be able to discuss, say, the disrepair in their unit would unfairly prejudice tenants. After all, it is an accepted point in law that a tenant should not be bound to pay full rent for an apartment they cannot fully enjoy. Another sad fact about the rental market in Ontario is that not all landlords honour their own maintenance obligations and many tenants, especially those forced to live in the buildings where disrepair is the worst, are not as quick to initiate a legal action to enforce their rights as the corporate landlords in breach of their obligations. As a last resort, tenants sometimes feel compelled to withhold rent in order to “force” landlords to live up to their repair obligations. Withholding one’s rent inevitably results in an eviction application. In such cases, it is hard to believe that landlords cannot guess what reason(s) might be the cause for the non-payment of rent. And perhaps the most appropriate first step is not to apply immediately for eviction, but to investigate first whether the problem stems from disrepair, or a lack of vital services, or some other mechanical problem that could be fixed rather easily. Regardless, denying tenants the ability to discuss anything they have not disclosed prior to the hearing would be tantamount to preventing the Board from hearing the underlying cause of the arrears and would violate a provision of the Act that states that the Board must “ascertain the real substance of all transactions and activities” pertaining to the tenancy. This proposal, in other words, may seem modest, but it is one of Swiftian proportions.

Encouraging people to open up their homes so that others might find a home of their own is certainly a good thing. And it is reasonable for Ontario to recognize that the homeowner renting out her basement is not in the same position as the corporate landlord who is in the business of making money off people who, by choice or necessity, rent rather than own their home. But if we want to encourage these small landlords to enter the market, why are we proposing to make changes that would affect all landlords equally? If the “cost” of being a small landlord is too high for some to become small landlords, why is the solution to reduce the cost for all landlords?

Finally, let us not forget that we are not talking about mere commercial transactions. These “rental units” are people’s homes. If we destabilize renters’ tenure in what they call home simply to bring more rental units onto the market, can we be said to have helped solve Ontario’s housing problem? I think not.