The Residential Tenancy Act balances the interests of landlords and tenants. It provides substantial security of tenure for tenants – at the expense of the landlord’s common law right to control the use of their property. This security of tenure continues until the tenant gives up the tenancy or the Landlord Tenant Board makes an order terminating the tenancy.
Where the Landlord Tenant Board makes such an order, there are rights of reconsideration before the board, and appeal rights to a court, either of which may serve to stay an eviction order and delay the date by which a landlord may evict you and recover the use of their property. However, the onus is on the tenants to avail themselves of the processes for reconsideration and/or appeal within the time constraints set out in the rules if they wish to prevent eviction and loss of the tenancy.
It must be noted that courts have repeatedly held that it is an abuse of process for a tenant to commence an appeal from an order of the Residential Tenancy Board just to obtain an automatic stay of an eviction order. It’s known and often referred to as “gaming the system”. Abusing the system will not end well.
In the case, Tataw v. Minto Apartment, the Divisional Court was asked to consider an already evicted tenant’s remedy, contrasting their situation with a pre-eviction automatic stay under R63.01(3). In paragraphs 5-7 of the decision, the court comments on the nature of the interests protected by the Landlord Tenant Board.
An eviction order of the Landlord Tenant Board is stayed automatically upon filing an appeal to this court: (Courts of Justice Act, RSO 1990, c. C.43, s. 134; Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 25 and R. 63.01 of the Rules of Civil Procedure). However, when the Sheriff has already carried out the eviction following an Landlord Tenant Board order before a stay is in place, then the situation is different. It is too late to stay the eviction order.
In this situation, the tenant is obliged to make a motion for an interim order from the court for repossession of the unit, or an order precluding the landlord from re-renting the unit. Without such an order, the landlord may rent the unit to a new tenant.
In Tataw, the landlord had re-rented the unit to a new arm’s-length tenant, (who had been in possession since September 2022). In these circumstances, even if the appellant’s appeal succeeded on the merits, the court would not oust the new tenant to restore the appellants to the unit.
As an alternative to getting her old unit back, Tataw was asking for an order to compel the landlord to “restore” her to a different unit when it became available. This relief was denied. The judge reasoned that the Residential Tenancy Act does not protect the landlord/tenant relationship, but rather the tenant’s interest in the rented unit. Once that interest has been extinguished, there is no jurisdiction to order that the tenant be granted an interest in a different rental unit.
Although not pertinent in the Tataw case, when the eviction or the re-renting of the unit has taken place in violation of a statutory stay or an order of the Landlord Tenant Board or the court, or where the new tenancy is a sham or to a person not at arm’s length from the owner, there may be room to restore a tenant to possession: MacMillan v. Martin, 2022 ONSC 357 (Div. Ct.); Margulis v. E. Manson Investment Limited, 2020 ONSC 7969 (Div. Ct.); Lysak v. Atkinson, 2020 ONSC 6972.
You don’t need a lawyer or paralegal to file motions but it can be intimidating. Tenants may benefit from hiring someone for an hour or two as needed but that is up to you. Seeking advice from a local community legal service to ensure proper procedures are followed is another option.
Finally, while the above is intended to be helpful, it may not apply to your case, may not be correct, and is certainly not legal advice for your particular matter.