Eviction for Failure to Pay Rent Interpretation Guideline 11
This Guideline deals with applications based on a tenant’s failure to pay rent. (See also Guideline 10 on “Procedural Issues regarding Eviction Applications”).
Method of Ordering Arrears1
If the landlord’s application for termination based on arrears of rent is granted, the tenant will be ordered to pay: a) rent arrears up to the termination date in the notice of termination, and b) lump sum compensation for use of the rental unit from the termination date in the notice to the order date. The rent deposit and interest owing thereon will be deducted from the arrears and compensation in accordance with subsection 87(4) of Residential Tenancies Act (the “RTA”). Daily compensation will then be ordered from the order date until the tenant vacates.
If the landlord is attempting to enforce the order, the landlord has an obligation to inform the Court or the Court Enforcement Office of any rent payments the tenant made that are not reflected in the order.
If the tenant vacated the unit after the application was filed but before the date of the hearing, the tenant will be ordered to pay arrears plus compensation only up to the date they vacated, less the rent deposit and interest.
If the order does not evict the tenant but rent is found owing, the tenant may be ordered to pay arrears up to the end of the current month. The rent deposit will not be deducted from the arrears because the tenancy has not been terminated.
The determination of arrears is usually based on the principle that payments are applied to the earliest rent owing. For example, if the tenant did not pay the May rent, but paid in June, the payment for June will be applied to May leaving the June rent outstanding.
Ordering arrears of rent where the tenant has vacated the rental unit
At hearings about arrears of rent, the Member must decide if the tenant was “in possession of the rental unit” at the time the landlord filed the application with the Board.
If the tenant owes the landlord arrears of rent, the landlord can serve the tenant with a notice of termination. This notice states that the tenant must pay all of the arrears of rent by a date specified in the notice, known as a termination date. If the tenant moves out of the unit by the termination date, the tenancy will be considered terminated effective that date.2 If the tenant terminated the tenancy by moving out of the rental unit by the termination date, the Board does not have the jurisdiction to consider an application for arrears of rent filed by the landlord, even if the tenant still owes rent to the landlord.
If the tenant does not move out by the termination date but moves out of the rental unit before the landlord files an application with the Board requesting termination of the tenancy for non-payment of rent, the Board cannot issue such an order, even if the tenant owes arrears of rent to the landlord. Under subsection 87(1) of the RTA, the landlord may only apply to the Board for an order for the payment of rent if the tenant was “in possession of the rental unit” when the application was filed.
Whether or not the tenant is “in possession” of a rental unit depends, on whether the tenant exercises some “form of control over that unit as demonstrated by factors such as access to, use of, or occupation of the unit.3 The landlord is expected to be able to provide evidence about efforts made to determine whether the tenant is still in possession of the unit. Such evidence may include:
- Whether the tenant returned keys to the landlord;
- Whether the tenant gave notice to the landlord or it is otherwise clear that the tenant intends to move out;
- Whether utility service to the unit has been disconnected and the unit has been without gas or electricity for some time prior to the hearing;
- Whether the tenant has actually been observed moving out of the unit by the landlord or others;
- Whether the landlord has changed the locks and/or taking steps to re-rent the unit.
The existence of an unexpired lease, by itself, is not proof of “possession” under the RTA. There must be proof of actual use, control or occupancy of the rental unit by the tenant.
If the evidence provided to the Member establishes that the tenant was in possession of the unit when the landlord filed the application, the Board has the authority to consider the landlord’s application. If the tenant is still in possession of the unit as of the hearing date, the tenant can be ordered to pay the landlord all arrears of rent and compensation owing up to that point.
In some cases, the evidence may establish that the tenant moved out of the rental unit after the application was filed, but before the hearing date. In that case, the Board’s order will generally include a determination that the tenancy ended on the date the tenant moved out. Further, the order will generally: (1) end the tenancy effective the date the tenant moved out of the rental unit without ordering enforcement through the Sheriff’s Office; and (2) require the tenant to pay arrears up to the date specified in the termination notice, and lump-sum compensation for use of the unit from the termination date in the notice to the date the tenancy ended. Unlike orders for arrears and termination where the tenant is in possession of the unit on the hearing date, the order would not provide the tenant with an opportunity to continue the tenancy by paying all of the arrears by a specified date. Moreover, as there is a finding that the tenancy has ended, the tenant’s rent deposit and interest owing on it will be deducted from the arrears and compensation ordered to the landlord.
Arrears Less than a Rent Deposit
A notice of termination is not invalid simply because the landlord holds a rent deposit that is greater than the rent owing. The rent deposit can only be applied to the last month of the tenancy. Therefore, the landlord should not apply the deposit to the rent arrears before applying to evict the tenant.
The amount that is owed to the landlord on the order date may be a negative amount after the deposit and interest are deducted from the rent and compensation owing to the landlord. If so, the landlord would owe money to the tenant. In that case, the Board may order the landlord to pay the tenant the amount that will be owed as of the order date. The authority for this lies in section 205 of the RTA which states that the Board may order that “The landlord or the tenant shall pay to the other any sum of money that is owed as a result of this order.”
Non-Sufficient Funds Charges
Under section 87 of the RTA, where a landlord applies for an order for the payment of arrears of rent, the application may include a claim for the amount of NSF charges paid to a financial institution in respect of cheques tendered to the landlord by the tenant, plus the landlord’s administrative charges in respect of those cheques. The administrative charges are limited to a maximum of $20.00 per cheque per section 17 of Regulation 516/06.
These charges, if claimed, will normally be awarded and, if the order terminates the tenancy, the tenant will have to pay these amounts in addition to the other amounts payable in order to avoid eviction. See also the section below on Amount Payable to Prevent an Eviction.
Although a landlord may apply for NSF charges, they cannot be claimed in an N4 notice of termination. Under subsection 59(3) of the RTA, a notice of termination is void if the tenant pays the arrears and the additional rent that has become owing. There is no requirement for the tenant to pay NSF charges to void the notice. Therefore, including NSF charges on an N4 will likely invalidate the notice.
Other amounts may be owed to the landlord for charges permitted under the RTA or regulations, such as the cost of installing a mobile home under section 166 of the RTA, or for transferring a tenant to another unit in a social housing complex under section 17 of Regulation 516/06. Although the RTA allows a landlord to levy these charges, the RTA does not provide for their recovery in an application to the Board. A landlord should therefore not include such charges in a notice of termination or application for non-payment of rent.
Certain charges are not permitted by the RTA, even if they are set out in the tenancy agreement. This includes non-refundable key deposits, most types of administrative charges, and late payment charges in excess of what is permitted. See section 17 of Regulation 516/06.
In all cases, the Member must review the tenancy agreement to determine if the tenant is required to pay their portion of the costs of utilities.
When a landlord and tenant are entering into a tenancy agreement, they may agree that utilities will be included in the rent. In this case, the landlord is responsible for paying all utility bills and the rent would remain unchanged despite any fluctuations in these costs.
Alternatively, the landlord and tenant may agree that utilities will not be included in the rent and that the tenant will be responsible for paying all utility costs directly to the utility company. In this case, it is clear that the payment of the utility costs is not rent, and even if the landlord pays the bill because the tenant fails to, they would not be able to claim the amount as rent arrears.
In the case of a building containing not more than six rental units where the landlord supplies a utility to each of the rental units in the building, the tenancy agreement may require the tenant to reimburse the landlord for a portion of the cost of the utility in accordance with the rules made under Ontario Regulation 394/10. In any such case, the utility is not considered a service that falls within the definition of “rent”.
The landlord cannot include amounts for which the tenant fails to reimburse the landlord for the utility charge in an application for the payment of rent arrears or in an application for termination of the tenancy and eviction of the tenant based on the tenant’s failure to pay the utility charge.
Therefore, any unpaid amounts for utilities will not be included in the calculation of arrears of rent, although they may be a debt owing to the landlord that may be recovered by the landlord in the courts.
A landlord may require a tenant to pay a rent deposit of no more than one month’s rent, so long as the landlord does so on or before entering into the tenancy agreement in accordance with subsection 106(1) of the RTA. If the tenant does not provide a rent deposit, the Board cannot order the tenant to pay one. It follows that if the landlord claims a rent deposit on the notice of termination it will invalidate the notice.
The landlord may require the tenant to update the rent deposit when the rent increases so that the deposit is equal to the lawful rent for the last month: see subsection 106(3) of the RTA.
Under section 82 of the RTA, a tenant may raise any issue that could be the subject of a tenant application, such as maintenance problems or harassment, during a hearing about rent arrears. The tenant must give the landlord and Board a written description of each issue at least 7 days before the hearing. The tenant should include details such as a description of the issue, when it began, and when the landlord became aware of the issue. The Board has an s.82 disclosure form that can be used to provide this information, but tenants do not have to use it. The tenant must also give a copy of all their supporting evidence to the landlord and the Board at least 7 days before the hearing.
After reviewing the evidence and issues the tenant intends to raise at the hearing under section 82 of the RTA, the landlord may decide that they want to submit their own evidence to address these issues. The landlord must provide to all other parties and the Board any responding material, including documents, pictures and other arguably relevant evidence the landlord intends to rely on at least 5 days before the scheduled hearing.
If a tenant wants to raise issues under s.82 but has not provided the landlord and the Board with the required details about the issues and the supporting evidence at least 7 days before the hearing, the tenant will not be permitted to raise the issues under s.82 unless the tenant provides an explanation satisfactory to the Board explaining why the tenant could not comply with these requirements. If the Board is not satisfied with the tenant’s explanation, the issues may still be considered by the Board when deciding whether to delay or refuse the eviction under section 83 of the RTA. See Guideline 7 on “Relief from Eviction” for further discussion of this point. The tenant may also file their own application in order to have the Board consider the tenant’s issues.
The landlord will have an opportunity to respond to the Tenant’s section 82 issues at the hearing.
If the Board finds in favour of the tenant, the Board may award any remedy that could be awarded as a result of a tenant application, such as ordering the landlord to fix something or granting the tenant a rent abatement. If the Board determines that the tenant is entitled to a rent abatement, it will be deducted from any rent arrears owing to the landlord.
May a Guarantor be Ordered to Pay Rent Arrears
There are tenancies that the landlord only accepted on the basis that a person other than the tenants would guarantee that the rent would be paid, should the tenants not be able to pay. The question is whether the Board may order a guarantor to pay rent arrears if the landlord includes them with the tenants as respondents to the application.
In most cases, the guarantor has no express right of possession and, even if they do, no one expects them to ever occupy the rental unit.
The Board will not make an order against guarantors because they are not tenants. The RTA does not authorize the Board to deal with such claims, even if they are related to the issue of rent arrears. Landlords may seek enforcement of such obligations through the courts.
Relief from Eviction
Where the Board finds there is unpaid rent, the Board must consider whether to delay or refuse the eviction under section 83 of the RTA. In some cases, refusing or delaying the eviction is discretionary; in others, refusing the eviction is mandatory. Even if the eviction claim in the application is refused or delayed, the tenant will be ordered to pay any arrears to the landlord. A payment schedule for the arrears may be imposed upon the tenant under section 204 as a condition of giving relief under section 83. See also Guideline 7 on “Relief from Eviction” for further discussion of this point.
Amount Payable to Prevent an Eviction
Section 74 of the RTA provides that a tenant may avoid eviction in three circumstances.
Before the order is issued
Subsection 74(2) provides that if the tenant pays the landlord the full arrears, the application fee and any additional rent that is owed as of the date of payment by the tenant before the eviction order is issued, the landlord’s application will be discontinued.
After the order is issued
Under subsection 74(3), an order must specify the amount of rent arrears, the daily compensation payable and any costs ordered by the Board. The order will also set out any amount payable for NSF and administration charges. The order must also inform the tenant and the landlord that the order will become void under subsection 74(4) if the tenant pays the landlord or the Board the amount specified in the order before it is enforceable. An order is enforceable on the date the order specifies that the Court Enforcement Office (Sheriff) may give possession to the landlord.
If the tenant pays the amount specified in the order to the Board, the staff of the Board will issue a notice to the landlord and tenant acknowledging that the order is void. If the tenant pays the entire amount to the landlord or part to the landlord and part to the Board, the tenant may file a motion with the Board, without notice to the landlord, asking for a Member to issue an order determining that the tenant has paid the full amount due and confirming that the order is void. Such an order will be made without holding a hearing. However, within ten days after it is issued, a landlord may, on notice to the tenant, make a motion to set the order aside. A hearing will be held to determine the landlord’s set aside motion.
After the order is enforceable
Under subsection 74(11), if the tenant pays to the landlord or to the Board the amount specified in the order and any additional rent owing after it becomes enforceable but before it is enforced by the sheriff, the tenant may file a motion with the Board, on notice to the landlord, to set aside the eviction order. The eviction order has stayed once the motion is filed and cannot be enforced until the Board issues an order lifting the stay.
The tenant must file an affidavit with the motion setting out all of the payments made by the tenant since the hearing. Payments made prior to the hearing cannot be listed in the affidavit because those payments should be included in the order. If the tenant believes that the order is incorrect because it does not include all the payments that were made before the hearing, the tenant may consider filing a request to review the order.
The Board will hold a hearing on the motion. If the Board determines that the tenant has not paid the arrears and any additional rent owing as of the payment date, any NSF and administration charges and the costs ordered by the Board, the Board will make an order denying the motion and lifting the stay. If the Board determines that the tenant paid the arrears and any additional rent owing as of the payment date, any NSF and administration charges and the costs ordered by the Board, the Board will make an order declaring the eviction order to be void. However, under subsection 74(15), if the Board determines that the landlord has paid a non-refundable amount under the Administration of Justice Act for the purpose of enforcing the order (e.g. sheriff fees), the Board will specify that amount in the motion order and require the tenant to pay that amount into the Board by a specified date.
If the tenant pays the specified amount by the specified date, a Board employee will issue a notice to the tenant and the landlord acknowledging that the eviction order is void.
If the Board determines that the tenant did not pay the specified amount by the specified date, a Board employee will issue a notice stating that the stay of the order ceases to apply and the eviction order may be enforced.
If the tenant paid some or all of the amount owing to the landlord by non-certified cheque, and the landlord is concerned that the cheque may be returned NSF, the member holding the hearing can grant an adjournment or permit post-hearing submissions to allow time for the cheque to clear before making their final order.
A motion to void an order after it has become enforceable may be made only once during the period of the tenant’s tenancy agreement with the landlord: see subsection 74(12).
1 For simplicity, the descriptions in this Guideline assume monthly payment of rent. If the tenancy was on a weekly or another basis, it should be adjusted accordingly.
2 See RTA, s. 43(2)(a).
3 See the Ontario Court of Appeal’s unanimous judgment in 1162994 Ontario Inc. v. Bakker, et al.,  O.J. No. 2565 (Ont. C.A.) (hereinafter “Bakker“).