Area of Law: Landlord and Tenant
Answer # 444
How do you fight an Eviction Order?Region: Ontario Answer # 444
If a landlord wants to evict a tenant they are required to apply to the Landlord and Tenant Board and give the tenant a chance to dispute the eviction. If a tenant receives an Application to Terminate the Tenancy and Evict the Tenant, and a Notice of Hearing, this means that the landlord has made an application with the Board. The tenant will have an opportunity to attend the hearing and dispute the reasons for the eviction.
If the Board issues an Eviction Order, it is final and binding. The Board will not change or void the Order simply because the tenant disagrees. That said, there are limited circumstances when it is possible for an Order to be changed or set-aside. In such circumstances, the tenant must act quickly to avoid being evicted from their home. What the tenant must do depends on whether there was a hearing with the Board.
If there was a hearing
If a hearing took place and an Eviction Order was issued, it may be because the Board member agreed with the landlord, or because the tenant did not attend the hearing. If either of these things happened, the tenant might be able to stop the eviction by asking the Board to review the decision or by filing an appeal in court. The Board will only review the decision in the case where a serious error was made, such as:
- if the Board exceeded its authority
- the application was processed in such a way as to interfere with the rights of one of the parties
- the tenant was not reasonably able to participate in the Board’s proceedings
- the Board erred in the way that it looked at the evidence, or in the way it reached its conclusions
If the eviction is based on unpaid rent, the tenant might be able to stop the eviction by paying the outstanding rent. The tenant must file a form called Tenant’s Motion to Void an Eviction Order for Arrears of Rent. In that form, the tenant will have to list the date and amount of the payments made. In some cases, where the Board ordered the tenant to pay the landlord’s legal costs, the tenant will have to make those payments as well, in order for the Board to void the Eviction Order.
If there was no hearing – Ex Parte Order
Sometimes, tenants do not find out that they are being evicted until they receive a notice from the Sheriff or a copy of an Eviction Order. This type of Eviction Order is called an Ex Parte Order. Ex Parte means without notice. It means that the landlord, without giving the tenant any notice, made an application with the Board claiming that:
- the tenant and the landlord made an agreement that the tenant would move out,
- the tenant gave the landlord notice that he or she was moving out, or
- the tenant has not followed a Board Order or mediated agreement related to an earlier eviction application.
If the tenant did not have a fair chance to dispute the eviction because a hearing was not held, they may be able to stop the eviction and have a new hearing scheduled. This is called getting the Eviction Order set-aside.
Four steps to having an eviction order set-aside
If there is a good reason to stop the Sheriff from going through with the eviction, a tenant has to apply for the Eviction Order to be set-aside within 10 days from the date it was signed. If 10 days have passed since the Eviction Order was signed, tenants can still apply for it to be set-aside, but the eviction may still occur, making it very difficult for tenants to get back into their home.
The four steps to getting an Eviction Order set-aside are:
1. The tenant is required to fill out a form called a Motion to Set Aside an Ex Parte Order and submit it to the Landlord and Tenant Board office within 10 days from when the Order was issued. This 10-day period includes weekends and holidays. Once this form is filed, the Board will schedule a new hearing date.
If the tenant does not file the Motion within the 10-day time period, the tenant will have to ask the Board to give them more time. To do this, the tenant must file a different form called a Request to Extend or Shorten Time. If the Board grants this request, the tenant will have another opportunity to file a Motion to Set Aside an Ex Parte Order.
2. The Board will prepare a Notice of Hearing form, which the tenant must deliver to the landlord and to the Court Enforcement Office (Sheriff’s office) to stop the eviction.
3. The tenant is required to fill out a Certificate of Service form, which indicates that the landlord was notified of the new hearing date.
4. Tenants are required to attend the hearing and be prepared to explain their side of the issue.
When a motion to set-aside an Ex Parte Order is filed, the Order is stayed, which means put on hold, until the Board has made a decision about the motion. This means that the Order cannot be enforced and the Sheriff cannot evict the tenant.
After the motion is heard, the Board will decide whether to set-aside the Eviction Order. If the Board does set it aside, the tenant will not be evicted. If the Board dismisses the motion, it means that the Order is upheld and becomes enforceable. At that point, if the tenant does not leave the premises, the Sheriff has the right to evict the tenant.
Depending on the complexity of the issues involved, a tenant may want to hire a lawyer for advice, and in some cases, for representation at the hearing.
For more information about tenancies, or to obtain forms online, visit the Landlord and Tenant Board website.
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