Category Archives: Case profiles

Landlord’s “bed and breakfast” rental scheme defeated

Case profiles, Public Legal Education

The DLS Housing Law Division has just completed four years of litigation to win back thousands of dollars that were illegally collected from three University of Toronto international students and then kept by their landlord, who still has not paid them back. If you’re a student renter, read on to avoid having this happen to you!

The case

In late summer 2014, three international students answered a rental ad that a local landlord had placed on the University of Toronto Housing Services’ off-campus housing website. When the students visited the home (in Toronto’s Annex neighbourhood, and divided into several apartments) to sign a lease, the landlord instead presented them with a “Booking Agreement” for a nine-month term of occupancy, requiring that the tenants pay their rent make their ‘payments’ in a front-loaded instalment schedule. The document also claimed that the Residential Tenancies Act, 2006 (“RTA”) did not apply, that the landlord was an “innkeeper”, and that the students were each required to do chores for several hours per week as part of their agreement.

By December 2014, the students were complaining about a pest infestation, lack of heat, and daily harassment by their landlord. She had collected most of their rent for the entire term, so she told them to get out. They did move at the end of December, but she kept all of their money. The students visited DLS the next semester, and we filed their Landlord and Tenant Board (“LTB”) applications that summer.

The landlord managed to drag the case out for the next four years by:

The LTB, overwhelmed by staffing shortages, often took several months after a hearing date to even try to schedule the next one. From the final hearing, the LTB took eight months to issue its decision.

The outcome

The final LTB order provides that:

  • since the RTA applied to this tenancy, it was illegal for the landlord to collect a damage deposit and irregular front-loaded “instalment” payments instead of a regular monthly rent (where the deposit must be no greater than one month’s rent)
  • since the landlord ended the tenancy early in December 2014, she should have returned all of the money attributable to January-May 2015
  • since the landlord harassed the tenants and interfered with their reasonable enjoyment of the rented unit, she was ordered to refund an additional 10% of their rent

The landlord has decided not to appeal. As of the date of this post, she also has not yet paid a cent of the $7000+ that she owes.

Lessons for renters

  1. As a renter, you should be familiar with your basic legal rights under the Residential Tenancies Act, 2006 – a law that protects tenants in Ontario. Visit yourlegalrights.ca for easy-to-read explanations of rent control, security of tenure, and other tenant rights.
  2. Just because your landlord says you are not covered by the RTA, does not make it true. The RTA applies to most rental situations, and there are very narrow exceptions. Signing an agreement (saying the RTA does not apply) does not matter. You cannot “contract out” of the RTA.
  3. If the RTA applies to your rental situation, you cannot be required to pay more than one month’s deposit (which is your last month’s rent) in advance. Beware of landlords who request three, five, or even twelve months of rent up front. A tight rental market will lead you to difficult choices. But the more money you put in your landlord’s pocket, the more you’re risking that they will keep that money in a situation where they are required to refund it.
  4. You have one year from the date that your landlord did anything illegal to file an application to the LTB. This deadline comes sooner than you think, so get legal advice soon if you think you might need it.
  5. The legal process is frustrating. Traditionally, the LTB is an efficient tribunal for evictions and landlord applications, which make up about 90% of the cases that the LTB hears. But tenant’s applications can often take years to finish, in part because an LTB member may look at what you are seeking and say “it’s just money”.
  6. Because you may need to give evidence to the LTB years down the road – after memories have faded – keep good documentation of your tenancy issues. If you think your landlord is harassing you, communicate with them in writing (including by email or text message) and save backup copies of that correspondence. If you notice any maintenance problems, take lots of photos and keep them organized by date and subject. If you feel that your apartment has inadequate heat, buy a thermometer, hold it in the centre of the room, and take a clear photo of the thermometer.

Special thanks to the four generations of our now-alumni who worked tirelessly on this case, the law students continuing collections efforts, UofT Housing Services for agreeing to de-list the landlord in question, and our clients who gave us permission to share this story.

DLS Challenging Canada-US Agreement to Turn Away Asylum Seekers at Border

Case profiles

Amidst recent changes in the United States’ asylum system and the increasing numbers of migrants entering Canada, many have identified the Safe Third Country Agreement as an unacceptable part of our legal system. Downtown Legal Services (DLS) represents two individuals challenging the Safe Third Country Agreement (STCA) at the Federal Court – as already reported by the CBC, Globe and Mail, and CTVNews. Three organizations have joined our clients in this challenge: the Canadian Council for Refugees (CCR), Amnesty International (AI), and the Canadian Council of Churches (CCC).

The STCA is a bilateral agreement between Canada and the United States. Under the STCA, individuals who arrive or travel through the United States are ineligible to make a refugee claim at a port-of-entry in Canada. Likewise, individuals who arrive or travel through Canada are ineligible to make a claim in the United States. The STCA is premised on the belief the United States is a safe country for asylum seekers. We argue that the United States is no longer a safe country for asylum seekers.

The Law Underlying the Safe Third Country Agreement

The United States is currently designated as a “safe country” under section 102 of the Immigration Refugee Protection Act (IRPA), and is currently the only country with this designation. Under section 102 of the IRPA, the governor in council must ensure the continuing review of factors set out within section 102(2) of the Act. Under section 102(2), the governor in council should consider:

  1. whether the country is a party to the Refugee Convention and to the Convention Against Torture;
  2. its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
  3. its human rights record; and
  4. whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

2007 Challenge to the Safe Third Country Agreement

To date, the outcome of any review by the governor in council has never been published. However, a previous challenge to the STCA by CCR, CCC, and AI was upheld by the Federal Court in 2007. There, Justice Phelan of the Federal Court found it was unreasonable to conclude that the United States was a “safe country”. The decision found that since the United States was returning asylum seekers to countries where they still faced a real danger, it was not complying with its obligations under the Refugee Convention and the Convention Against Torture and infringed upon rights under the Canadian Charter of Rights and Freedoms.

This decision was overturned at the Federal Court of Appeal in 2008. However, the appellate court did not review if the United States was a safe country or consider the Charter arguments in their full scope. Rather, the Federal Court of Appeal found that since CCR, CCC, and AI, being organizations, did not have the appropriate standing to present claims on behalf of individuals trying to gain entry at the Canada-United States border. Notably, the Federal Court of Appeal did not reverse Justice Phelan’s finding that it was unreasonable to conclude the United States was a safe country.

Current Challenge

When individuals attempt to enter Canada through the United States, they interact directly with the Safe Third Country Agreement. The current challenge to the STCA includes arguments that the agreement infringes upon the section 15 and section 7 Charter rights of individuals crossing at the border.

Section 15 of the Charter concerns individuals’ rights to equal treatment and benefit of the law, free from discrimination. The section 15 arguments on the applicants’ right to equality focuses on the unique challenges faced by asylum claimants who are women. The current asylum system in the United States does not accommodate women appropriately for numerous reasons. As an example, a June 2018 decision by Attorney General Jeff Sessions states that individuals cannot use “domestic violence” as a ground to claim asylum. By precluding women from using “domestic violence” as a ground to claim asylum, they can be returned to countries where they would have no state protection from these acts. In this way, returning asylum seekers who are women to the United States denies them the full protection and benefit of the law.

Section 7 of the Charter concerns individuals rights to life, liberty, and security of their person. The section 7 arguments focus on the increased risk of returning asylum seekers to nations in which they face danger. Since 2007, the United States’ asylum system has not become any safer for asylum seekers. Many of the past concerns, including the high rates of return asylum seekers to countries where they face danger, still remain. By returning asylum seekers to the United States, where they will be returned to countries where they face a real risk to their life and security, there is a violation of the asylum seekers’ rights under section 7 of the Charter.