Legalese - November 20, 2008

Some Seasonal Landlord and Tenant Problems

By William A. Florence, Barrister and Solicitor,Rural Legal Services

Things are going to start getting an awful lot colder soon. The following are some questions and answers about landlord and tenant problems that come up during the winter months. One such question is whether landlords are allowed to evict tenants during the winter. There is nothing in the Residential Tenancies Act, 2006, (the Act), which prevents landlords from successfully evicting tenants during the winter. At an eviction hearing at the Landlord and Tenant Board, a tenant could argue that eviction is a remedy of last resort, and speak to the additional hardship that an eviction would cause during winter months; but there is nothing in the Act which says that no evictions will be allowed during the winter.

Another common question is whose responsibility is snow removal? Is it the landlord’s or the tenant’s responsibility? The answer is: it depends. On the one hand, it is the landlord’s responsibility to ensure that the rental unit is maintained in a good state of repair. The landlord must ensure that the rental unit is fit for habitation, and complies with municipal safety, housing, or maintenance standards. In general, these standards set out that the landlord has a responsibility to ensure that it is safe to enter and exit the property. However, the Act does not address the specific problem of snow removal. It would be up to the Presiding Member of the Landlord and Tenant Board at a hearing to decide, based on the particular circumstances arising in an application, whose responsibility it would be.

A further common question is whether there is a set temperature that a landlord has to keep a rental unit at during the winter months. If it is the landlord’s responsibility to provide heat in the rental unit, the Act requires that the heat be kept to at least 20 degrees Celsius from September 1 to June 15. There may also be applicable property standards or bylaws regulating minimum standards. If a landlord does not provide the minimum standards of heat required, the landlord may be committing an offence. If after trying to settle this with the landlord directly there is no satisfactory response, one option for the tenant would be to call the Investigation and Enforcement Unit of the Ministry of Municipal Affairs and Housing at 1-888-772-9277.

Heat is considered to be a vital service within the meaning of the Act. The Act states that “A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed, withhold the reasonable supply of any vital service … or deliberately interfere with the reasonable supply of any vital service…”. Other vital services are: hot or cold water, fuel, electricity, and gas. This rule about withholding or interfering with vital services, remains in effect, even if the tenant has damaged the property, or is behind in rent. If the landlord failed to pay their bills, leading the service provider to disconnect the service, it is still the landlord who is considered to have withheld the vital service, not the service provider. However, if the tenant fails to pay their own utility bill, and their service is disconnected, they cannot claim that the landlord is withholding the service.

If the tenant is personally responsible for the heating of their rental unit, the additional costs that the winter months necessitate for heating, can be quite a hardship. This is especially the case for low income individuals in receipt of Ontario Works, or income support from the Ontario Disability Support Program. The term “energy poverty” is used by the Low-Income Energy Network (LIEN), to describe this disproportionate burden of utility costs that those in receipt of social assistance face. Many of these individual have to sacrifice the limited basic needs assistance they receive for the purpose of purchasing food, clothing, and other basic necessities, to pay for the additional utilities costs during the winter.

If you are in receipt of social assistance, it is important to ensure that your worker is up to date on your monthly utilities costs. If you have a utility such as hydro that will be discontinued unless the arrears are paid, it may be that Social Assistance would be able to help. There are also other community resources that can be accessed. You are welcome to contact Rural Legal Services if you have questions.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.