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Even though Ontario issued a moratorium on evictions due to the COVID-19 pandemic, a landlord brought an emergency motion to court to enforce an eviction order. The court refused the landlord’s request.

What Happened?

The landlord had sold a condominium unit occupied by the tenant in August 2019, with an original completion date of October 31. The landlord was to deliver vacant possession, and thus sought to evict the tenant. The tenant unsuccessfully pursued the matter at the Landlord and Tenant Board. 

On November 13, 2019 the Board terminated the tenant’s residential tenancy. The Board ordered that the landlord could file the eviction order with the Court Enforcement Office (Sheriff) after November 25, 2019. Once the order was filed with the Sheriff, the Sheriff was directed to give vacant possession of the unit to the landlord.

The tenant sought a review by the Board. The Board affirmed the November eviction order. The tenant appealed to the Divisional Court and the eviction order was stayed pending appeal. 

During this time, the closing date for the sale was extended until April 30, 2020.

The tenant arranged to move. On February 17, 2020, the tenant signed a lease agreement for an apartment with a new landlord commencing on May 1, 2020. The tenant and the landlord then negotiated a resolution, which included entering into a consent order.

On March 18, 2020, the court issued the Consent Order dismissing the appeal, vacating the stay, and ordering that the eviction order of the Landlord and Tenant Board should be enforced.

However, due to the COVID-19 pandemic, a provincial eviction moratorium had been issued, ordering that all eviction orders be suspended unless the court ordered otherwise upon leave being granted to a party by the court pursuant to the court’s procedures for urgent motions.

The landlord was granted leave to bring the motion on an urgent basis, which was heard by telephone.

Parties’ Positions

The landlord sought an order directing the Sheriff to enforce the eviction order, arguing that the continued tenancy may jeopardize the real estate closing scheduled for April 30, 2020.

The landlord argued that the eviction moratorium should apply only to tenants who would otherwise be evicted for non-payment of rent, to protect those who have lost income because of COVID-19.  

While the tenant had signed a lease for another apartment for May 1st, the new landlord had defaulted on it. The new landlord had stated that he could not evict the existing tenant but clarified that the apartment would be available on June 1st.

Decision

At the outset, the court disagreed with the landlord’s argument regarding the purpose and scope of the eviction moratorium, stating:

“There are no limiting terms in the Chief Justice’s order, except for urgent motions. It is not limited to those cases where eviction is related to COVID-19 non-payment of rent; it is not restricted to new evictions arising after March 17th. It applies to all evictions. Given its breadth, the clear intent of the Chief Justice’s eviction moratorium was, during the pandemic, to prevent evictions even though the moratorium could be expected to cause significant economic disruption and adverse financial effects. The Landlord and Tenant Board has also suspended eviction hearings except for those dealing with urgent issues such as illegal acts or threats to health […]. True emergencies will be dealt with. But the primary interest protected is ensuring that everyone stays home and stays healthy during the lockdown period.

The burden is on the landlord, as moving party, to establish that this is an urgent situation which requires eviction of the tenant in the middle of the pandemic. The landlord has not identified a truly urgent situation such as illegal acts by the tenant or threats to health caused by the tenant.”

Additionally, while the landlord had cited the loss of a real estate closing, the court found the evidence speculative and stated that the landlord had not met his burden of establishing irreparable harm or urgent and compelling circumstances. 

The court then stated: 

“[The tenant] lives with his wife and his two young children. He and his family cannot be put on the street. I take judicial notice of the fact that it is harder to visit potential apartments because of COVID-19 risks, and of the fact that if an existing tenant refuses to move, as is the case with the new apartment, it is challenging for a landlord to evict the tenant because of the provincial eviction moratorium.”

The court balanced the concerns of the tenant against the landlord’s evidence. It found that there was no evidence that the sale would not close.

As a result, the landlord’s motion was dismissed.

The court encouraged the tenant to confirm the availability of the new apartment and, otherwise, to search for another apartment. If the tenant failed to do so, the court stated that the landlord could bring a further motion for directions.

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Baker & Company has adopted all of the COVID-19 safety precautions and vulnerable employees have been invited to work from home. We are fully operational and continuing to work on client assignments. Where possible, meetings are being held via video link or by telephone conference.

At Baker & Company in Toronto, our real estate lawyers take the time to speak with you and understand your unique needs in order to guide you through your real estate matter, whether commercial or residential. We rely on our broad base of experience and expertise to provide exceptional legal advice and risk management in a variety of leasing issues. Call us at 416-777-0100 or contact us online for a consultation.

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