Navigating the unique barriers and legal structures governing evictions from coast to coast
According to the Canadian Housing Survey, 5.9% of households across Canada were forced to move between 2016 and 2021. Research shows that forced moves have a ripple effect through people’s lives contributing to emotional distress, poor health outcomes and homelessness. However, the experience of forced moves is not equal, and both tenants and landlords from province to province face different challenges when navigating eviction.
Evictions across Canada follow the same general steps. First, the tenant receives a notice of termination; then there is period to dispute; if disputed, the matter may be subject to a participatory hearing with an administrative tribunal; and finally, if the landlord succeeds, an eviction is ordered. While this is generally true, (closer) examination of each stage of the process exposes significant differences in the process governing termination of residential tenancies across the country, which can restrict access to justice for tenants, as well as introduce unnecessary barriers to researchers seeking to understand and quantify evictions activity across Canada. This blog post introduces some of those differences, shares an overview of evictions processes in Canada, and provides a suggested use for this research.
Rent Control
Noteworthy differences between Canada’s provinces permeate every stage of the eviction process. Even before the notice of termination stage, legislation around rent control can prevent or enable evictions. In Alberta, Saskatchewan, New Brunswick, Nova Scotia, and Newfoundland residential tenancy legislation does not limit how much a landlord can increase rent by, only how frequently these increases can occur and how far in advance they must inform tenants. Without rent control, tenants are functionally unprotected from eviction, because landlords can legally increase rent in an amount that either forces a tenant to move (i.e. informal economic evictions) or results in a formal eviction for non-payment of rent.
But even in provinces where there are prescribed maximum rent increases, legislation permits for exceptions – there are certain buildings (in Ontario and Manitoba) and applications (AGIs/ARIs) that can exempt a unit from rent control. Legally permitted exceptions can easily be exploited – particularly as these laws attempt to strike a balance between landlords’ rights to predictable investments with tenants’ right to housing (a dubious endeavour at best). Comparing rent control regimes across the country serves to emphasize the need for robust control, that ensures that tenants are not forced to hundreds of dollars more in rent each month at a moments notice.
Types of Eviction
While every province allows evictions for non-payment of rent, no two tenancy statutes stipulate the same timelines. Rent may be considered late anywhere from one day after it is due (as in BC, Ontario and PEI) to fifteen in Nova Scotia. In most provinces, there is a set period when tenants can pay amounts owed to cancel or void the eviction notice. These opaque and inconsistent processes have a direct impact on tenants, resulting in truly absurd outcomes like an eviction over $150 or arrears that have since been paid in full.
Disputing Notice
Another aspect of the eviction process illuminated by a comparative approach is the requirement to dispute. Who bears the onus of disputing a notice? If a tenant does not formally respond to a notice, are they implicitly accepting or refusing the eviction? Only in Quebec is the tenant presumed to refuse a notice if they do not file or communicate a disagreement within a prescribed time. On the other end of the spectrum, in British Columbia an undisputed notice may result in an order of possession without a hearing. Even in jurisdictions where a tenant’s inaction does not assume acceptance of the eviction, the burden to dispute can be procedurally complicated, overwhelming, and expensive. A recent study shows evictions are not filed with provincial tenancy tribunals as a result of these complications compounded with a general “pessimism in the legal process”. The lack of formal filings for evictions poses a barrier to research and advocacy.
Decision-Making Process
Where tenants and landlords do find themselves in front of a tenancy tribunal, the processes and outcomes available differ substantially. In some jurisdictions, the decision maker (an arbitrator, in most cases) is permitted broad discretion to “order the terms and conditions that [they] consider fair and proper in all the circumstances”, which is often referred to as proportionality, especially where an eviction might result in homelessness or there are extenuating circumstances. Decision-makers in other jurisdictions, including BC, are granted no discretion in deciding whether to grant an order of possession.
Conclusion
While comparing eviction processes across Canada provides important insights into how legislation can be strengthened to ensure tenants security of tenure is protected, it is important to remember that categories of comparison are often connected and interdependent. For instance, advocating for fairer timelines and notice periods for evictions for non-payment of rent, while a noble pursuit, only addresses the symptoms of a lack of vacancy control.
Further, it is prudent to step back and apply a critical lens. What does it say about our housing system that a central tenet of residential tenancy acts is striking balance between one party’s ability to extract profit and another’s fundamental right to shelter? How can we argue that balance exists when in some jurisdictions tenants must pay a filing fee to dispute an eviction for falling into arrears, and (in certain jurisdictions) decision makers have no discretion to consider alternative outcomes or the circumstances that led to arrears? How do we work toward legislative reforms when existing renter protections are not enforced?
Comparative research about provincial evictions processes is forthcoming from the Balanced Supply of Housing. It will be grounded in this interrogation of the ideological underpinnings of residential tenancy law, both with respect to who is excluded from residential tenancy legislation.
