Substantially the same Bill was on the cusp of becoming law last year when former Premier Dalton McGuinty prorogued the legislature. Like its previous incarnation, Bill 14 amends the Co-operative Corporations Act and the Residential Tenancies Act (RTA). The most significant change it makes is to move co-op evictions from the Superior Court to the Landlord & Tenant Board (LTB). Since there is little that is new in Bill 14, we continue to share our community’s concerns raised in our previous article, ‘Co-operative Housing Reform: The Worst of Both Worlds’ (you can read a copy of this on our blog at www.nlstoronto.org). In particular, we outlined how the Bill is geared towards making evictions easier while denying those who live in co-ops the right to raise their own maintenance, repairs or other claims before the LTB.
There are some positive aspects to Bill 14, in particular an application fee-waiver provision for low income persons who wish to file an application at the LTB but can not afford the filing fee. Tenants will find this change highly beneficial. It will have marginal impact on co-op members who, as covered in our previous article, are largely denied the right to file an application before the LTB.
In this article, we focus on an aspect of Bill 14 that again adversely impacts the rights of co-op members. Under s. 203 of the RTA, tenants living in rent-geared-to-income (RGI) housing are already denied the option of challenging improper calculation of rent or withdrawal of their housing subsidy at the LTB. S. 203 explicitly restricts the LTB’s jurisdiction to consider rent subsidy issues. In cases involving RGI, the LTB is essentially required to accept the landlord’s version of the rent arrears whether or not it is correct.
Members living in co-op housing presently enjoy the advantage of being able to challenge loss-of-subsidy or miscalculation of rent in court as a defence to a co-op’s eviction application. There are a number of cases where the courts have refused eviction because the co-op had not properly applied a subsidy. However, Bill 14 will extend the application of s. 203 to co-op members as well. This means that unlike under the court system, if a co-op member loses their subsidy because the co-op did not follow the proper rules or process, the co-op member will not be able to raise this issue at an eviction hearing at the LTB.
Quite aside from the practical negative consequences that may result from having one’s case heard before the LTB (as discussed in our previous article), it is important for co-op members to understand that the inclusion of co-ops under s. 203 represents a formal erosion of rights currently enjoyed by co-op members. Co-op members are losing a significant protection that they currently enjoy.
At the Committee stage it is still possible to advocate for changes to Bill 14. There are a number of ways in which co-op members could be better protected. The Advocacy Centre for Tenants Ontario (ACTO) has long advocated for the deletion of s. 203 entirely so that tenants and co-op members alike can raise problems with their housing subsidy to challenge an eviction application. This would be in keeping with the legal principle that multiplicity of proceedings ought to be avoided, and that as far as possible all issues should be dealt with in the same legal forum.
There may also be other creative ways to deal with the practical fallout of s. 203. Co-ops and others in favour of keeping s. 203 argue that tenants and co-op members alike have the option of reviewing their housing provider’s subsidy decisions before the City of Toronto’s independent Review Body (note: tenants living in the Toronto Community Housing Corporation can not access the City’s independent Review Body but have a similar review option through TCHC’s internal review body). This Review Body, set up under the Housing Services Act in 2012, has proved highly professional and sympathetic in dealing with subsidy issues. This makes sense when one considers that the City has specific homelessness initiatives and a policy of minimizing evictions. The problem therefore is not the Review Body itself, but that too many tenants and co-op members are either unaware of their right to file a review or are vulnerable and unable to navigate the review system. Sometimes landlords and co-ops fail to advise tenants and members of their right to appeal subsidy decisions to the Review Body despite having a legal obligation to do so. Everyone would agree that in such circumstances it would be grossly unfair to then allow such a landlord or co-op to obtain an eviction order while relying on s. 203 to limit any discussion of its own negligence or ill-intention in withdrawing a subsidy. Yet presently such a use of s. 203 is completely legitimate.
The only solution to such unjust situations is to integrate the subsidy review process with the eviction process at the LTB. This can be achieved through full integration of the type advocated by ACTO, where the LTB’s jurisdiction expands to include a review of all housing subsidy issues. Alternatively, there could be a partial integration of the subsidy and eviction systems. Under this model (favoured by NLS), in cases that involve a loss of subsidy or a dispute over RGI rent calculation, landlords and co-ops would have to certify the answers to two questions before the LTB:
i. Has the tenant or member been advised by the housing provider of their right to an independent review of the housing provider’s subsidy decision? And,
ii. Has the tenant or member exhausted the City’s independent review process?
Where the answer to either question is “No”, the eviction proceedings before the LTB ought to be dismissed or adjourned to allow the tenant or member to benefit from the City’s independent review process.
There may also be other creative options to deal with the problem of completely separate subsidy review and eviction processes. What should not be an option is to simply ignore the manifest unfairness that flows from s. 203 and to then to blindly apply it to co-op members as well.