When facing eviction for non-payment of rent, tenants often believe their situation is hopeless. However, Ontario's Landlord and Tenant Board (LTB) has the discretionary power under Section 83 of the Residential Tenancies Act to grant "relief from eviction" through conditional orders and payment plans. These legal mechanisms can provide tenants with a crucial second chance to preserve their tenancy while ensuring landlords eventually receive what they're owed.
Understanding how conditional orders work, what factors influence the Board's decisions, and what makes payment plans successful can mean the difference between losing your home and getting back on track financially.
Understanding Section 83: The Board's Discretionary Power
Section 83 of the Residential Tenancies Act grants the LTB broad discretionary power to refuse or postpone eviction, even when landlords have proven their case. This section recognizes that eviction should be a remedy of last resort, and that circumstances may warrant giving tenants an opportunity to preserve their tenancy.
As noted in asman-v-mckinnon-20230811, "the Board found that the circumstances did not rise to the level where eviction should be considered a last resort, and that granting a conditional order allowing the Tenant to pay the arrears over 12 months would balance the prejudice to each party and preserve the tenancy."
Types of Relief Available
Conditional Orders with Payment Plans
The most common form of relief is a conditional order that allows tenants to remain in their unit provided they follow a structured payment plan. In Safari-v-Gordon-and-Brown-20210806, "the adjudicator found it appropriate to grant the Tenants' request for relief given the relatively small amount of the arrears and the short duration of the payment plan."
Postponed Eviction
Sometimes the Board will grant a postponed eviction, giving tenants additional time to find alternative housing or secure funds. This was seen in Thadani-v-Knisley-20230321, where "a postponed eviction was granted until April 8, 2023, considering the Tenant's disclosed circumstances."
Section 78 Conditional Orders
These orders allow landlords to apply for immediate eviction without notice if tenants breach the payment plan conditions. As explained in Peel-Housing-Corp-Op-As-Peel-Living-v-Monique-Mitchell-20210614, "a section 78 clause is included to allow the Landlord to file for eviction if the Tenant misses any of the payments set out in this order."
Factors the LTB Considers When Granting Relief
Financial Circumstances and Ability to Pay
The Board carefully examines whether tenants can realistically afford both ongoing rent and arrears payments. In 12631521-Canada-Inc-v-Trudeau-20221122, "the Tenant was granted relief from eviction due to medical circumstances and a reasonable payment plan."
Reasons for the Arrears
Temporary hardships often receive more sympathetic consideration than chronic non-payment. In DCP-v-BA-20160610, the Board considered that "the Tenant's wife was ill and newly pregnant, so the Tenant had to work fewer hours to care for his family" and "the Tenant was then involved in a motor vehicle accident with his wife and child, which caused him to be unable to work."
Length of Tenancy and Payment History
Long-term tenants with previously good payment records often receive more favorable consideration. In CM-v-DS-2018-TEL-93043-18, the Board noted that "the Tenant has lived in rental unit for 11 years" and considered the "Landlord has been lenient with Tenant's previous defaults."
Personal Circumstances
The Board considers various personal factors under Section 83(2). In Murzello-v-Sullivan-20240829, "the Board considered section 83 of the Residential Tenancies Act and determined that eviction should be a last resort, finding a payment plan reasonable."
Successful Payment Plan Examples
Reasonable Duration and Amounts
In i-essajee-v-emilie-poirier-dumas-20230619, "the Board found the Tenant's proposed payment plan to be realistic and not unduly lengthy, and granted conditional relief from eviction."
Demonstrated Commitment
Tenants who show genuine commitment to resolving their arrears are more likely to succeed. In metcap-living-management-inc-v-woldemariam-20240117, "given that the Tenant submitted a reasonable payment plan, it was appropriate to give the Tenant one final opportunity to preserve the tenancy."
Improved Financial Situation
Evidence of improved circumstances strengthens payment plan requests. In premi-v-Lamb-20230222, "the Tenant's request for relief from eviction was granted due to the proposed repayment plan and the Tenant's efforts to secure a debt consolidation loan."
When Relief Is Denied
Unrealistic Proposals
The Board rejects payment plans that tenants clearly cannot afford. In UK-and-RP-v-MD-20190822, "the Tenant's own evidence indicates she cannot afford the rental unit unless she reduces her expenses, and even then, she still cannot afford the repayment plan she proposes. Therefore, it would be unfair to grant the relief the Tenant seeks."
Poor Payment History
Chronic non-payment undermines requests for relief. In Ramona-Holdings-Limited-v-Marsh-20210720, the Board found it would be "unfair to grant relief from eviction" where the "Tenant has been non-responsive and made no payments since the application was filed."
Lack of Good Faith
Tenants must demonstrate genuine commitment to resolving their situation. In H&R-Property-Management-v-James-20221031, "the Tribunal found that a repayment plan would not be fair given the large amount of arrears and the Tenant's lack of payments."
The Consequences of Breaching Conditional Orders
Section 78 Applications
When tenants breach payment plan conditions, landlords can apply under Section 78 for immediate eviction without notice. However, there are strict time limits. In Lanmark-Management-Limited-v-Mattis-20220211, "the Landlord's application under section 78 of the Act is dismissed because it was filed more than 30 days after the Tenant failed to meet the condition specified in the previous order."
Limited Second Chances
The Board is generally reluctant to grant multiple payment plans to the same tenant. In Veldale-Farms-Ltd-v-Perry-20230224, "the Tenants had an opportunity to preserve the tenancy through a consent order, but failed to meet the conditions of the payment plan. The arrears have increased significantly, and the tenancy cannot be preserved with another payment plan."
Immediate Eviction
Successful Section 78 applications typically result in immediate eviction orders with no further opportunity for relief.
Best Practices for Tenants Seeking Relief
Propose Realistic Payment Plans
Base your proposal on actual income and expenses, not wishful thinking. In IMH-POOL-XX-v-Younge-20220907, "despite the lengthy payment plan proposed by the Tenant, the Board concluded that granting relief from eviction would not be unfair" because it was based on the tenant's actual financial capacity.
Demonstrate Changed Circumstances
Show how your situation has improved since the arrears began. In Paragon-Property-Management-v-Frasor-20220816, the tenant's "unexpected health event and return to work were taken into account when imposing a conditional resolution."
Make Some Payment Before the Hearing
Even small payments demonstrate good faith. In WML-v-GP-2016-TSL-69421-15, the tenant "paid $1,240.00 at the hearing" which helped support their request for relief.
Provide Supporting Documentation
Bring evidence of income, expenses, and any circumstances that led to the arrears. Medical documentation, employment letters, and financial statements can all support your case.
Best Practices for Landlords
Document Everything
Keep detailed records of all missed payments, communications with tenants, and any previous payment plan failures.
Consider the Tenant's Proposal
While you can oppose payment plans, consider whether the proposal is realistic and whether you'd be better served by guaranteed payments over time rather than the uncertainty of eviction and re-renting.
Understand Section 78 Requirements
If you agree to a conditional order, ensure you understand the 30-day limitation period for Section 78 applications and keep careful track of payment due dates.
The Economics of Conditional Orders
For Tenants
Conditional orders provide an opportunity to preserve tenancy and avoid the costs and disruption of moving. However, they also typically result in higher monthly payments and strict compliance requirements.
For Landlords
While payment plans delay full recovery of arrears, they often provide more certainty than eviction proceedings followed by attempts to collect from former tenants. In Equiton-Residential-Income-Fund-LP-v-Mungala-20220629, the Board "granted relief from eviction based on a feasible payment plan and the absence of prejudice to the Landlord."
Common Mistakes to Avoid
For Tenants:
- Proposing unrealistic payment amounts that you cannot sustain
- Failing to attend the hearing or provide adequate documentation
- Not making any payments before or during the proceedings
- Ignoring the payment plan once it's established
- Assuming you'll get multiple chances if you breach the first agreement
For Landlords:
- Missing the 30-day deadline for Section 78 applications
- Not properly documenting payment plan breaches
- Agreeing to unrealistic plans out of desperation
- Failing to monitor compliance with payment schedules
The Role of Legal Representation
While not required, legal representation can significantly improve outcomes for both parties. Paralegals and lawyers familiar with LTB procedures can help craft realistic payment proposals, present compelling arguments for relief, and ensure compliance with procedural requirements.
Recent Trends and Considerations
COVID-19 Impact
The pandemic has influenced the Board's approach to relief applications, with greater consideration given to employment disruptions and health-related financial hardships.
Housing Crisis Considerations
The current housing shortage has made the Board more conscious of the severe consequences of eviction, potentially leading to more generous relief provisions in appropriate cases.
Conclusion: A Balanced Approach
Conditional orders and payment plans represent the LTB's attempt to balance the legitimate interests of both landlords and tenants. For tenants, they offer a lifeline when facing eviction, but success requires realistic planning, genuine commitment, and strict compliance. For landlords, they provide a mechanism to recover arrears while maintaining tenancy relationships, though they require patience and careful monitoring.
The key factors for success are:
- Realistic assessment of financial capacity
- Genuine commitment to compliance
- Proper documentation and preparation
- Understanding of consequences for non-compliance
- Professional guidance when needed
As demonstrated by the cases analyzed, the LTB takes a nuanced approach to each situation, considering the specific circumstances of both parties. While conditional orders provide valuable second chances, they are not automatic and require tenants to demonstrate both need and ability to comply with the proposed terms.
The system works best when both parties approach it in good faith, with realistic expectations and a genuine commitment to resolving the underlying issues that led to the arrears. For tenants facing eviction, understanding how conditional orders work can provide hope and a path forward. For landlords, these mechanisms offer an alternative to the uncertainty and costs of eviction while still protecting their financial interests.
