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Access to justice is under attack for Ontario renters

In the housing and legal sector the phrase access to justice is a common one. For the public and for renters in Ontario, it can be difficult to understand what that is and why it matters. It’s one of those concepts that just doesn’t feel relevant as part of our daily lives – that is – until it does. A common scenario could be receiving an eviction notice from your landlord and having to attend a virtual hearing at the Landlord and Tenant Board (the Board) to save your home. Then, access to justice can make all the difference in the world.

Access to justice matters for all renters – even for renters who never get to a hearing at all. After all, as Ricardo Tranjan, a senior researcher with the Canadian Centre for Policy Alternatives’ Ontario office, recently pointed out, “The challenge so many tenants face today is not finding a place but affording and keeping the one they already have.”

Tranjan highlights that evictions are on the rise in Ontario, and many of them happen because of landlord greed. Laws like vacancy decontrol allow landlords to charge any amount they want to incoming tenants. This encourages them to evict their existing tenants (who are protected by rent control) to make more money off of someone new. The research bears this out, showing that in 2022 vacancy decontrol sharply increased rents for two bedroom apartments that had turned over by 26% in Hamilton, 17% in Ottawa, and 29% in Toronto, compared to 1.2% for existing tenants who were protected by rent control provisions. Evictions that happen for this reason can be categorized as renovictions, demovictions, or “no-fault evictions.”

Evictions are disruptive and have major consequences for renters. They also increase a renter’s likelihood of becoming homeless. These evictions also remove an affordable housing unit from the market – forever. Evictions should be treated only as a last resort. So, why is access to justice being eroded at a time when it matters more than ever?

Defining access to justice and security of tenure

Let’s define these terms. Access to justice is a principle of law that maintains all citizens and/or residents have equal access to the legal system. Security of tenure is the legal right for renters to live in their home without fear of being arbitrarily or illegally evicted. Both of these principles exist in Ontario … in theory. In practice, access to justice for tenants and security of tenure is under assault by landlords, Tribunals Ontario, and the provincial government.

The grim reality of Ontario’s legal and housing ecosystem is that landlords hold most of the power and many behave as though they are above the law. Some landlords don’t bother going through existing legal avenues to get their way and most evictions happen informally. In The Right to Counsel for Tenants Facing Eviction: Security of Tenure in Canada by Sarah Buhler, she points out that “informal and formal evictions are interconnected: when landlords’ power goes unchecked in the formal system, tenants are more likely to be vulnerable to informal and illegal evictions.”  

What about the formal eviction cases that do reach the Board? Tenant rights are treated as a nuisance, if they’re considered at all. Last year, the Ombudsman of Ontario investigated the work of the Board and found that tenant applications were waiting up to two years for a hearing, compared to six to nine months for landlord applications. Tribunals Ontario, which is the umbrella organization responsible for the Board, explained that tenant applications were not scheduled promptly because they are more complex than landlord applications. The Ombudsman found that the Board and Tribunals Ontario’s treatment of tenants in this manner was “unconscionable.”

The role of access to justice

Landlords not only have power over their tenants by the nature of the relationship, they often have more money at their disposal and can easily hire legal representation. Our own research found that – in an analysis of digital hearings – almost 80% of landlords had legal representation, whereas, only 31.5% of tenants had received legal advice or had legal representation. The system is already rigged against renters, but the scales of power tip more deeply against them if their landlord has legal representation and they do not.

This dynamic has been made worse by what we call the “digital divide.” The digital divide is the stark difference between landlord and tenant access to the appropriate and necessary technology, wifi, and know-how to attend and participate effectively in a virtual hearing. For tenants, especially those trying to participate in a chaotic virtual hearing, receiving legal advice or having legal representation can be the lifeline that prevents their eviction.

One way to think about this is to imagine that you’re travelling in a country where you don’t speak the language. You are meeting a friend for dinner at a restaurant, but they’re running late. You struggle to request a table and order your drinks and appetizer while you wait. The thing is, you also have a severe nut allergy. You’re getting flustered as you try to convey the urgency of your allergy before you order. The wait staff are visibly annoyed with you. Just as you’re about to panic and leave, your friend (who does speak the language) arrives. Immediately, your friend is able to communicate effectively with the staff to alert them to your allergy and determine what dishes you can order. Drinks and food are on the way. You’re safe to enjoy your dinner with your friend. What a relief!

This is a bit like what having access to justice can do for a renter, but the stakes are much higher than ordering dinner. Buhler found that lawyers and paralegals can translate confusing legal jargon and support tenants morally, emotionally, and logistically. They can relay relevant information on behalf of tenants in a way that resonates with adjudicators. They can also deter landlords from bringing forward applications that have no merit and push back against landlord representatives who may try and bully renters into agreeing to their terms. Meaningful and concrete access to justice can allow renters to have their security of tenure – their right to be free from arbitrary evictions – protected.

Why is access to justice under attack?

Many tenants cannot afford to hire legal representation outright. Some tenants may qualify for free legal representation by their community legal clinic. However, the income thresholds for qualifying are low, and most renters in the province are not eligible. It is for those remaining renters that ACTO runs the Tenant Duty Counsel Program (TDCP). It allows tenants who have a scheduled hearing at the Board to sign up to receive free, confidential legal advice from a legal professional who does not work for the Board.

However, given the sheer volume of cases being heard at the Board, it’s not always possible for every tenant to receive legal advice. There are also some who elect not to. Even those that do still need to go up against their landlord and their landlord’s legal representative to convince the adjudicator of their side. Many tenants are doing this as they struggle with technology and appear unseen on Zoom, when the landlord and their representative appear by video. It’s an adversarial set up where the most persuasive party wins. For all of these reasons, the Board has routinely been called an “eviction machine.”

Considering how terrible housing has become in Ontario and how blatantly landlords skirt the law, you would think that politicians and lawmakers would be doing everything they could to protect renters and uphold their legal rights. That they would expand access to justice as quickly as they could to prevent the onslaught of evictions. They have done the opposite. In 2018, the newly elected government cut funding for Legal Aid Ontario (and by extension, community and specialty legal clinics like ACTO) to the tune of over 100 million dollars. This decision forced clinics to scale back their services and supports, in a time when it’s badly needed. Six years on this funding has yet to be restored.

It has only gotten worse. The province weakened tenant protections by creating another avenue for landlords to evict tenants through the disastrous Bill 184. They have also pushed through an online portal and digital-only system that shuts out tenants from participating. The backlog of cases and dysfunction of Board operations means resolutions move slowly, leaving renters in limbo for months. Even where they have increased fines and consequences for landlords who are breaking the law, these fines and laws are rarely enforced, rendering them useless.

The only conclusion one can draw is that renters are an afterthought in our legal system and their access to justice is of little consequence, especially when it comes to preventing evictions. In Ontario, landlords are treating evictions as a get-rich-quick scheme and the province is letting them get away with it. The relative ease with which landlords can evict their tenants makes a mockery of justice. We should all be ashamed.