Landlord and Tenant Board practice is creating renter nightmare scenarios in Ontario

Imagine if Ontario’s Landlord and Tenant Board decided to evict you and write your landlord a blank cheque you then had to pay. It’s not a nightmare. In fact, it happens every day. Allow me to explain.

When the Board issues an eviction order, as a matter of standard practice, it orders tenants to pay all rent arrears owing and a pro-rated daily occupation rate for each day tenants remain following the written order’s eviction date.

For example, the Board might say that the tenants owe $4,000 in arrears and an additional $50 for each day they remain beyond their eviction date.

Including this daily occupation rate in eviction orders incentivizes tenants to vacate a property earlier, rather than wait to be forcibly removed by law enforcement (should that be necessary).

For landlords, it provides compensation for the time during which their property may be illegally occupied by a tenant, without requiring them to obtain a subsequent legal order.

So, as a practice, it makes sense for the Board to establish a post-eviction daily occupation rate in its eviction orders. But the arrangement rests on a problematic premise: that landlords can be trusted to not falsely claim a tenant occupied their property after an eviction date.

In the event a landlord does lie though, they can claim thousands of dollars from tenants without having to prove they are owed a penny of it, notify the credit bureaus of the ostensive debt, and file to garnish it from tenants’ employers.

Tenants are then put in the position of proving – or paying legal counsel thousands of dollars to prove – that they didn’t occupy the unit beyond the eviction date in Small Claims Court.

And what consequence will the landlord face for all this unlawful carnage? None.

Though it’s a criminal offence to file a false Affidavit of Enforcement Request, that’s an issue beyond the scope of what’s covered at the civil hearings held for garnishments and similar disputes, where landlords risk only minor consequences for falsely claiming thousands of dollars from struggling renters.

It’s the same story in the event of a false filing with credit bureaus. The bureaus do not require proof of daily occupation rate debt to list it on a tenant’s credit report.

Then they make removal astonishingly difficult for tenants, even after a court has invalidated the claim.

For the landlord, making a blatantly false filing with credit bureaus is also illegal. But again, there do not appear to be any real repercussions. I know because I’ve seen everything described above transpire with my own clients.

But this is not an impossible problem. On the contrary, the province could implement several simple solutions to prevent these situations and impose appropriate penalties.

Firstly, Queens Park can and should amend the Residential Tenancies Act to explicitly establish high punitive fines for landlords who attempt to falsely claim post-eviction daily occupation rate payments.

The province could allow these claims to be brought by tenants through the Board instead of the courts, which have more complex procedural requirements. This would make it easier and more affordable for tenants to seek justice.

But the legislation would, as a practical matter, have to establish minimum fines and other penalties, which the Board itself would be responsible for extracting. Otherwise, the Board will only issue the paltry, slap-on-the-wrist fines it typically awards – which are then rarely even paid.

Another option could be setting a deadline for the daily occupancy rate’s application, which would apply where landlords fail to file an eviction order with the sheriff’s office in a timely manner.

For example, two weeks following an eviction date. Since in some cases, landlords neglect to file an order with the sheriff’s office for months or years, then claim payment owing for the applicable time period, even if the tenant has been long gone.

Lastly, both the federal and provincial government must clamp down on credit bureaus’ mismanagement. We need appropriate regulations making it as easier for tenants to remove false debt claims, and harder for landlords to file them without substantiating evidence.

And bureaus must be mandated to ensure customer service personnel answer phones, respond to emails, and address issues like human beings rather than Kafkaesque robots.

One way or another, the province must fix this ridiculous situation to protect Ontario renters from these nightmare scenarios – because it’s hard enough for renters to afford costs of living without our tribunals writing effective blank cheques in their name.

Marc Z. Goldgrub is a lawyer at Green Economy Law Professional Corporation, a boutique Toronto law firm with a focus on green business, psychedelics, and housing.