It's been a tough year to be a landlord-side housing lawyer with a social conscience. Our tenant-side colleagues post horror stories of evictions happening by the dozen without tenants getting notice or benefiting from other procedural fairness protections. We feel for tenants whose economic circumstances have changed profoundly in the last year, leaving them unable to pay rent. When we hear their stories, we agree with measures taken to prevent an opening of floodgates at Ontario's Landlord and Tenant Board (LTB) and to slow or stop the enforcement of eviction orders.
One housing co-op's story
In our work though, we see other casualties of COVID-19. Let me share with you one such case, anonymized to protect all involved. This is a frightening story with serious consequences for everyone involved, including of course, the person who was evicted. It also highlights some significant problems in our system that pre-date the pandemic but are exacerbated by it.
At our firm, we act for many non-profit housing co-ops and one contacted us last June. Ontario housing co-ops are self-governed: members elect a board which oversees staff. This co-op has an employee well-versed in handling the things that happen when people live together -- like all co-op staff, she's part social worker, part accountant, part handyman, part engineer, and part mediator. She was at her wits end, not surprising given what she shared with us.
One day in February 2020 a member of the co-op had had two fires, one inside and one outside. The fire department attributed both to the member's actions as there was no other evident source. Although the person had lived in the unit only a few months, this was not the first round of concerns, but certainly the most serious.
Housing co-ops are reluctant to evict. Their boards and staff recognize co-ops play a critical role in solving Canada's affordable housing crisis. Co-op boards make decisions knowing people who are evicted will have few rehousing options, often ending up in shelters. Boards know too that the LTB bar for evicting is high, as it should be, to ensure people are not arbitrarily unhoused.
Unlike landlords, eviction in Ontario co-ops is first a community decision with safeguards built in to protect against rogue boards. Members whose housing is in question are given 10 days' notice of a hearing at which the board considers written evidence from the co-op office and the member's verbal response. Continued occupancy is decided in accordance with the bylaws and in the best interests of the co-op.
In our case, the board had taken all necessary steps and, based on the directors' fear for the safety of this member and those who lived in the adjoining units, the directors decided to terminate membership and occupancy rights and, if the member failed to move, to file an application at the LTB. That decision had been made just before the March state of emergency which shut down the LTB.
In the following weeks, the fire department visited the unit because of fire safety protocol violations, including deliberate holes in the walls breaching fire separations and increasing the risk of fire spreading as well as creating drafts that reduced the effectiveness of smoke detectors. While the co-op fixed those holes immediately, the board was not confident that the member wasn't tampering with other fire safety measures or otherwise living unsafely.
I spoke to one member who was on the board of directors of the co-op who reported that all the directors were frightened about safety and the liability on the co-op. She visited the neighbouring unit almost daily to try to get a read on the situation for herself and her fellow directors. She often returned home in tears, terrified for herself, her neighbours, and the member in question.
By the time of our involvement in June, although the LTB was accepting applications, there was a moratorium on enforcement by the sheriff and no hearings being scheduled. We warned the co-op too that there had been a considerable backlog of cases before the pandemic shutdown. We filed the application with no hope for a speedy resolution.
The co-op board and staff were deflated to realize that the legal process was not effective to keep them safe, and in fact made them more vulnerable at a time when they too were suffering the effects of COVID-19.
The situation worsens
Fears were amplified with the discovery a month later of more holes, removed smoke alarms, and extensive damage to the unit's wiring, all apparently deliberate. The co-op took immediate steps to repair everything, incurring sizable costs which have to date been paid entirely out of the co-op's coffers -- no outside body has stepped in. Each time the co-op paid for repairs, they were undone by more damage.
Another month and another fire in the unit; again, the fire department determined no cause other than the member. The fire department ordered the co-op to install new fire detection systems in adjoining units, again at the co-op's cost. Shortly afterwards, the co-op found more damage to the unit, including again to the wiring.
Unit condition was not the only concern for the co-op's employee. Recognizing that the member's behaviour was likely caused by an underlying mental health disability or addiction or both, she talked to health professionals and addiction counsellors, who in the end could not or would not help, leading to more feelings of deflation. The co-op was on its own.
By August, the LTB was once again scheduling hearings, and we requested an urgent one. Like the board, the staff person, and the fire department, we had genuine safety concerns.
Another three months passed without a hearing date and there was another fire in the unit. This time the fire department assessed damage as 10 on a scale of one to 10. An inspection revealed the member had again disabled the smoke alarms.
The LTB heard the case in late December, six months after we were first contacted and 10 months after the first fire. Overburdened even that day, the hearing was truncated but the adjudicator heard enough to order eviction for the serious safety risk. She noted that although the member clearly suffers from a disability, the co-op had "done everything reasonable in the circumstances to accommodate." The decision allowed the co-op to send the file for enforcement on January 1, 2021 and asked the sheriff to expedite enforcement, an infrequently used section of the Residential Tenancies Act.
A few days after the hearing, the member set another fire -- this one was larger and more dangerous. The director who talked to me reports the fire department telling her they had a Christmas miracle that the member didn't blow the whole block up.
We all held our breath as we awaited the sheriff's enforcement on January 8, 2021. A board member reported to me that when the sheriff came that day, the member didn't understand what was happening, walking out of the co-op confused. No one felt good about this outcome but it was the right one for the community.
Four days later, the province issued its stay-at-home order, stopping enforcements once again, an order that was lifted only recently. This time there was a way to argue for an urgent enforcement despite the order but to do so would have been costly for the co-op and without any guarantee of success. Had the timing been off, the co-op may easily have had to hold its breath for another three months.
What do we learn from this story?
- Evictions should be hard to get. We rightly have a system with procedural safeguards to ensure there are no arbitrary or unfair evictions but the LTB needs a more robust triaging system so cases like this one don't languish for months, putting people at risk.
- We have an inadequate system supporting people with mental health disabilities. People deserve housing appropriate to their needs. This member was referred by the co-op's service manager under Ontario's Housing Services Act. There were early and obvious signs that this housing would not work. The facts were surely known to the service manager before the referral. Communities deserve to know the housing system prioritizes their safety. Our system failed this member and this community.
- When it fails to work for communities like this co-op, the system makes people cynical about the legal process and leads to some communities taking matters into their own hands -- unit lockouts or other self-help remedies -- against people who are vulnerable and do not know their rights.
- The financial cost of a process like this is too high for a non-profit community. Unit repairs, legal fees, and security costs will top $100,000. Insurance will not cover these costs as they are deemed to result from the member's "lifestyle." Members felt so threatened through the last year they approved spending $40,000 on a new security camera system. None of these expenses were budgeted. The co-op's board will have to shift priorities, delaying much-needed repair and upgrade work to other units. No government has agreed to help.
Co-opers are not heartless. The staff person and the director I spoke to are considering therapy to help recover from this trauma. They worry about the evicted co-op member undoubtedly living on the streets. The staff person reports driving around and scanning the sidewalks and being both relieved and disappointed when she sees nothing. This situation breaks their hearts and should break ours too. We need to do better.
Celia Chandler joined Iler Campbell LLP, a law firm specializing in co-op, non-profit, and charitable law, in 2005, and was called to the bar in 2006. Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.
Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.
Image credit: Artem Zhukov/Unsplash
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