Recently I was asked to represent a Landlord to evict a Tenant for persistently paying the rent late. It started like a straight forward case. Section 58 (1) 1 of the Residential Tenancies Act states:
58. (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:
1. The tenant has persistently failed to pay rent on the date it becomes due and payable.
The Tenant had paid the rent late for 10 months out of the 12 month lease. According to the lease agreement, the rent was due on the first day of each month. The Tenant had made it customary to pay by instalments throughout the month, with the last instalment often falling on the last day of the month.
I took immediate steps to serve the Tenant with a Form N8, providing 60 days notice to end the tenancy. The eviction date was scheduled for September 9, 2016, but the Tenant refused to vacate. I took immediate steps to schedule a hearing at the Landlord and Tenant Board.
I quickly became aware that I was not dealing with a typical Tenant, but rather a Tenant with knowledge and experience of the Residential Tenancies Act and Landlord Tenant hearings. I proceeded to take every step available to the Landlord to expedite the eviction process. The Tenant was also behind on rent again, so I also filed a Form N4 Notice (appropriately named “Notice to End Your Tenancy for Non Payment of Rent”) to evict the Tenant for non-payment of rent. The L1 Eviction Application was filed immediately after expiry of the 14 day statutory period.
At this point, it became clear to the Tenant that the Landlord was serious about eviction. The Tenant evaded personal service. I retained the services of a professional process server to ensure proper service that would be recognized by the Landlord Tenant Board. The Tenant was difficult, but no match for the process server! Service was effected and additional Affidavit evidence was prepared and filed with the Landlord and Tenant Board to remove any doubt that the Tenant was properly served.
As anticipated, the Tenant later attempted to delay the eviction process by alleging she was not served. Fortunately, the file was handled quickly and properly and the Tenant was unsuccessful.
The Hearing for the first L2 Application was heard on October 4, 2016, less than 30 days after the original eviction date. The Tenant did not show up. A standard 11 day Eviction Order was obtained and filed with the Sheriff’s office. The eviction was scheduled for November 14, 2016. According to the instructions received from the Sherriff’s office, the Landlord is required to change the locks when the Tenant is evicted. The Landlord arranged for a locksmith to be on site for the eviction.
The Tenant did not give up. The Landlord, Locksmith and Sheriff showed up on time for the Eviction but the Tenant was not home. No problem. The Locksmith changed the lock and locked out the Tenant. End of story right? NOT. That’s when I received a call from the Sheriff’s office. Apparently, the Sheriff’s Office had made a mistake. The tenant had served a Notice of Appeal on November 12, 2016 and the Enforcement Office failed to attach the Notice of Appeal to the eviction paperwork. The Sheriff’s office evicted the Tenant, in error. The Landlord had no choice, but to provide a new key to the Tenant to continue her tenancy.
There is little doubt that the Tenant served the Notice of Appeal to delay the eviction. Section 210 of the Residential Tenancies Act provides the Tenant with this right to Appeal the Eviction Order, based on an error in Law. The Tenant alleged she was not served and for that reason she was unaware of the first hearing – remember the Affidavit of the Process Server?
Pursuant to the Rules of Civil Procedure and the Statutory Powers Procedures Act the decision of the Landlord and Tenant Board (to terminate and evict) is automatically stayed when the tenant serves the Notice of Appeal on all parties. A "stay" means that the eviction order cannot be enforced until the appeal is heard. Depending on the court, the hearing could be delayed up to a year or more before it is heard which in turn delays the Order for payment of rent arrears.
Immediate steps were taken to address the deficiencies of the Notice of Appeal so the Landlord could continue efforts to evict.
The Landlord pressed forward. While the Tenant was busy appealing (delaying) the first Eviction Order, the 2nd Application to Evict for non-payment of rent was heard and another standard 11 day Eviction Order was obtained (she didn’t show up for that either). Eviction day was scheduled for November 29, 2016. Once again the Landlord arranged and paid for a locksmith to attend with the Sheriff to evict. The Tenant failed to appeal the second Eviction Order and the Landlord entered the unit.
Unfortunately, the only thing the Tenant left behind was damage. Excessive damage was left throughout the rental unit, mainly caused by the Tenant’s dog. At the time of this blog, the cost to repair the damage to the rental unit is still being evaluated, however the rent arrears is currently being collected through garnishment.
This eviction was achieved as quickly and efficiently as possible because every step available to landlord was taken as soon as it became available, documents were completed correctly and problems were addressed immediately as they arose.
Please contact Lou Innamorato at with any questions you may have.