Due to the pandemic and the resulting lockdown, many individuals are spending more time at home. It’s unclear whether this has led to an increase in illegal activity or just an increase in witnesses, but either way our office is receiving more calls about how to handle illegal activity in a unit. As part of its response to the COVID‑19 pandemic, the LTB narrowed its scope for eviction orders and is hearing only those eviction applications that address urgent matters of health and safety or serious illegal activity. Housing providers looking to evict tenants or members who are causing serious problems may now be looking towards evicting on the grounds of illegal activity; but take heed, these are complicated and are always an uphill battle. Housing providers have to consider many factors before choosing this route, and often struggle to gather enough evidence.

New consequences of evictions for illegal activity

New changes to the Housing Services Act, which governs social housing in Ontario, came into effect in January of 2020 and further complicate evictions for illegal activity by raising the stakes even higher for tenants. A news release from the Ontario Ministry of Municipal Affairs and Housing boasted improvements to safety in community housing thanks to a new regulation. The brief states that the government is “sending a clear message that dangerous criminal activity is not welcome in community housing.” The changes allow community housing providers to turn away prospective tenants who have been previously evicted from community housing for illegal activities in the past five years.

While we understand the importance of keeping communities safe, we also recognize the important role of social housing in providing welcoming, diverse and inclusive communities, especially during the COVID‑19 pandemic when we are seeing the consequences of limited affordable housing. Advocates against the regulation argue that it will do little to improve safety in social housing and will cause more danger and problems in communities by creating even more limits on access to housing. Social housing is an essential resource for marginalized individuals, providing a sense of security and community, and protecting them from the cycle of poverty and criminalization that often accompanies homelessness.

We urge housing providers to be cautious and keep an open mind before broadly applying this new filter on applications. At the same time, many welcome this change as an opportunity to improve the safety of communities, and to help maintain those communities during the pandemic. Housing providers need to take the steps necessary to ensure their tenants and members have a safe and welcoming home. To help, we offer a clearer understanding of this regulation.

How does it actually work?

1. The regulation does not apply directly to housing providers. It applies to service managers, which create rules and oversee the administration of social housing for different local areas. The new regulation permits service managers to create a new rule for housing providers when selecting households to receive rent‑geared‑to‑income housing. This new rule will still apply only to “designated housing projects,” a list of which can be found here. The rule was set to take effect on January 1, 2020, so housing providers should check their guidelines for updates.
2. The regulation applies only to individuals who were evicted specifically on the basis of illegal activity. As many of housing providers know, evicting an individual is a difficult process. Doing so on the grounds of illegal activity is always challenging. Housing providers may suspect that a household is involved in illegal activity, but will file applications for eviction on alternative grounds – arrears and late payments, for example – that are easier to prove. The new regulation does not cover households where there was an attempt to evict based on illegal activity, or a suspicion of illegal activity. Further, how this rule will work in practice remains unclear as there is no way to know how a household was evicted. A solution to this problem will need to be part of the local rule that each service manager establishes.
3. Not all illegal activity is covered by the regulation. Only specific illegal activities apply. Although the list is rather comprehensive, housing providers should still take caution not to assume that any past eviction for illegal activity is grounds for denial of a housing benefit.

The full text of the regulation can be found here and is copied below.

System requirements – refusals by housing provider

50. (1) A service manager’s system for selecting households must include rules that permit a housing provider, despite any other rule, to not offer a household a unit in a housing project described in subsection (2), in any of the following circumstances:

1. The housing provider has a mandate under section 76 of the Act and offering the unit to the household would be contrary to that mandate.
2. The housing provider has reasonable grounds to believe, based on the household’s rental history, that the household may fail to fulfil its obligations to pay rent for the unit in the amount and at the times the rent is due.
3. The housing provider is a non-profit housing co-operative and the household does not agree to accept its responsibilities as a member of the housing provider or the housing provider has reasonable grounds to believe that the household will not accept or will be unable to accept those responsibilities.
4. The unit is one in which individuals will reside in a shared living situation and the housing provider has reasonable grounds to believe that it is unreasonable for the household to reside in the shared accommodation.
5. All of the following criteria are satisfied:
   1. Within the past five years,
      1. the tenancy of a member of the household was ordered terminated by the Landlord and Tenant Board based on a notice of termination given under section 61 of the Residential Tenancies Act, 2006, or
      2. the occupancy of a member of the household in a member unit of a non-profit housing co-operative was ordered terminated by the Landlord and Tenant Board based on a notice of termination given under paragraph 5 of section 94.2 of that Act.
   2. The tenancy or occupancy that was ordered terminated was in a designated housing project.
   3. The order terminating the tenancy or occupancy has not been cancelled under section 21.2 of the Statutory Powers Procedure Act or overturned under section 210 of the Residential Tenancies Act, 2006.
   4. The order terminating the tenancy or occupancy was grounded on an illegal act, trade, business or occupation involving one or more of the following:
      1. An illegal act, trade, business or occupation described in clause 61 (2) (a) or 94.4 (4) (a) of the Residential Tenancies Act, 2006.
      2. The illegal production, distribution or sale of cannabis.
      3. The trafficking of persons.
      4. The use or attempted use of physical violence against another person.
      5. Physical harm, attempted physical harm, or a risk of physical harm to another person.
      6. The use of threats to, intimidation of, or harassment of another person.
   5. The housing provider has reasonable grounds to believe that accommodating the household would pose a risk to the safety of one or more other persons at the housing project. O. Reg. 367/11, s. 50 (1); O. Reg. 318/19, s. 9

(2) A housing project referred to in subsection (1) is a designated housing project to which the housing program with the program category number 1 (a), 1 (b), 6 (a) or 6 (b) in Schedule 1 applies. O. Reg. 367/11, s. 50 (2); O. Reg. 31/12, s. 2.

(3) The service manager’s system for selecting households must include rules that provide for the following if a housing provider refuses, under a rule under subsection (1), to make an offer to a household that it would otherwise have been required to make:

1. The housing provider shall notify the household of the refusal.
2. If the household so requests, the housing provider shall review the decision to refuse to make the offer.
3. The rules under paragraphs 1 and 2 apply only to the first refusal by a housing provider to make an offer to a household and not to subsequent refusals by the housing provider with respect to the same household. O. Reg. 367/11, s. 50 (3).

Filed in: Housing

Tags: COVID-19, Evictions, illegal activity