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What Ontario Tenants Want in Housing Policy:
A New Landlord and Tenant Act

September 15, 2003, by Robert Levitt

Many of these issues were covered and predicted in my April 1998 report, The Ontario Tenant Protection Act: An Attack on Tenants

Observe politicians' promises with a critical eye:

"We want to bring in a rent control program . . . that will truly protect tenants and give them lower rents. We will replace nothing until we have a superior plan in place proven to work better."

          - Mike Harris, April 1995

"I want to be clear about our plan for Rent Control. We will repeal the Harris-Eves government's Tenant Protection Act and we will bring back real Rent Control that protects tenants from excessive rent increases. We will get rid of vacancy decontrol that allows unlimited rent increases on a unit when a tenant leaves."

          - Dalton McGuinty, August 2003

This is a list of the biggest changes that I believe must be made to tenant law, to make it fair to tenants, and correct the imbalance of power between tenants and professional landlords.

Table of Contents

  1. Construction of affordable housing.
  2. Elevators added to the list of vital services.
  3. Real Rent Controls, not Vacancy Decontrol.
  4. Rent increases for necessary capital expenditures not cosmetic changes.
  5. Costs no longer borne brought back into rent controls.
  6. Orders preventing a rent increase for disrepair.
  7. Proper costing for rent increases related to utility costs.
  8. Do not implement electricity submetering involving smart meters for tenants.
  9. Eviction procedures.
  10. Ending the present definition of legal rent that encourages illegal rents and charges.
  11. End discrimination on the basis of incomeand other issues.
  12. Ending notices of termination solely on the landlord's belief of illegal activities.
  13. Shelter allowances for Ontario Works and ODSP should reflect actual costs.
  14. Worker's rights for superintendents.
  15. Bring bring back the Rent Registry.
  16. Tenant Education.

1. Affordable Housing Construction

While not part of a new landlord and tenant act, there is a severe shortage of affordable and rent geared to income housing.

The Federal government got out of new rental housing construction under then federal Finance Minister Paul Martin, in 1993, and that was followed provincially under Mike Harris' Ontario government in 1995.

There needs to be substantial funding returned to the construction of new affordable housing.

2. Elevators

Ontario's Tenant Protection Act, Part VII, Vital Services should specify what are vital services, rather than leaving it to the municipalities, some of whom do not include elevators as a "vital service".

A lack of working elevators imprisons tenants within their apartments if they are disabled, elderly, or have young children. They are an essential service, as important as heat, water and electricity and all need to be enshrined as "vital services" in provincial legislation.

3. Rent Control

What we have had in Ontario since 1975 is rent regulation, not real rent controls as all of Canada had from 1944 to 1951, which froze rents unless there were exceptional cost increases in the operation of rental housing.

Since July 1998, tenants have been ruled by Vacancy Decontrol, where landlords can increase rents by an unlimited amount when a tenant moves out.

Vacancy Decontrol (also known less than affectionately to housing activists as "VD",) has led to two-tiered housing. Landlords fix and improve vacant apartments to be able to rent them out at their inflated "market" rents, and allow long-time occupied apartments to be in states of disrepair.

It is time to eliminate Vacancy Decontrol, as promised by Dalton McGuinty, not to allow 2% management fees in the guideline rent increase amount, and even better, with how profitable apartments are and landlords having gotten unlimited rent increases when the majority of units became vacant, freeze rents altogether, unless landlords can prove that due to increased costs they fall below a set level of profitability.

Any improved measures related to rent increases, are mute, if Vacancy Decontrol is permitted to stay. Costs no longer borne, utility cost decreases, etcetera will all be clawed back when a tenant moves out.

4. Necessary Capital Expenditures

The previous law, the Rent Control Act, stipulated that capital expeditures eligible for rent increases, must be necessary repairs or renovations not due to property owner neglect.

This was enacted because of the abuses under an earlier law, the Residential Rent Regulation Act, (enacted in 1986, under the Liberal, David Peterson government,) where many landlords would do cosmetic changes, such as installing expensive marble lobbies to attract new tenants while ignoring necessary repairs for sitting tenants.

Under the Tenant Protection Act, especially without a Costs No Longer Borne clause (see Item 5,) landlords are again doing such unnecessary expensive renovations such as lobby remodelling to drive up rents permanently.

Any new tenant law, needs to stipulate that capital expenditures eligible for rent increase applications must be needed repairs and renovations, not ones done for cosmetic for purely financial reasons, and not be needed due to landlord neglect, (landlords should not be financially rewarded for leaving their buildings go into disrepair).

5. Costs No Longer Borne

Under previous tenant law there was a "costs no longer borne" clause.

This stated that when a capital expenditure made by a landlord is paid off by a rent increase against the tenants, that part of the rent increase is reversed.

Under the Tenant "Protection" Act, there is no such clause. This means that if you get a rent increase for a new refridgerator that is amortized over an 8 year period, not only will you continue to pay for that paid-off refridgerator forever, but that if the landlord now replaces it with a newer version, you will be paying for the old and the new refridgerator... forever in your rent.

The situation under the TPA is clearly unfair to tenants, and any new landlord and tenant act must have a costs no longer borne clause to make sure tenants do not continue to pay for new appliance or repairs after they have paid them off for the landlord.

6. Orders Preventing a Rent Increase

This section in a new landlord and tenant act should be reinstated. They were eliminated in the Tenant "Protection" Act.

Orders Preventing a Rent Increase, (OPRI's) were measures put in whereby, usually at the behest of a municipality, if a landlord refused to do repairs or keep buildings up to municipal standards, the province could freeze the rent on the unit or units until such repairs were done.

Cities and towns all found this a useful tool to get repairs done by slum landlords.

OPRI's could be made even more effective, if rent rollbacks were permitted in the more extreme cases of disrepair.

7. Rent Increases for Utility Costs

The Tenant Protection Act, permits rent increases for year-over-year increases in utility costs but not for decreases if costs go down, nor for any way for tenants to find out about decreases in utility costs.

Any new act must allow for decreases as well as increases, and for a way for tenants to access records of utility costs.

Additionally, a new act should look back five years at any other rent increases applied for due to these same utility costs. The reason for this is that as an example, a landlord may get a rent increase under the TPA for an increase in natural gas prices, then prices fall the following year, but there is no decrease, and if in the year following that the landlord can (and they do,) apply for another increase on top of the one two years earlier, even if the present cost is lower than when they applied for the previous rent increase based upon utility costs.

8. Forced submetering of tenants' electricity with "smart meters"

Government claims for smart meters is that by consumers being able to see how much power they use and when, and by charging different rates for power at different times of the day, will get them to use more energy efficient appliances and to shift power usage out of peak times.

These arguments hold little weight for tenants.

First, tenants whom are tenants because they don't have to incomes to afford become homeowners, are those least likely to afford the estimated $5 a month to pay for these new meters, their installation costs and the associated expenses at Local Distribution Companies to read and store the data.

Tenants have no control over major factors like whether the landlords buy energy efficient refridgerators and stoves. So landlords' make the decisions, but it will be the tenants who have to pay the higher costs should landlords not use efficient appliances.

Next, many of the uses for power can not be shifted out of peak times, such as cooking, laundry, heating (for electric heated units,) and air conditioning. There is not sufficient laundry equipment to force all tenants to do their laundry after 8 p.m.. Nor will tenants shift all the meal preparation to after 8 p.m., it just is not logical.

The only thing that smart meters are sure to do are to raise electricity bills and to create confusion as to how and why bills are rising.

Forced severing of electricity costs from apartments is to go hand-in-hand with the new forced sub-metering. Landlords have no way of knowing how much electricity individual tenants are using and how much for common areas and services, (such as lighting and elevators,) if they are not already on a separate meter. Even honest landlords will protect themselves by underestimating the amount to deduct from the rent.

Sub-metering should not be forced upon tenants as it will not accomplish the claimed goals. It would be much better to bring in a public education campaign, particulary adding conservation into the school curriculum and providing tax incentives to landlords to switch over to energy saving appliances.

9. Eviction Procedures

There is an inherent imbalance of power between the professional landlord and the average tenant.

Nowhere is this clearer than in eviction procedures, where it is up to the landlord to inform the tenant that they are filing to terminate the tenancy and the tenant only has 5 days to respond or it will be assumed by the Ontario Rental Housing Tribunal that the tenant is not disputing the application, and the eviction will be fasttracked.

A much fairer system, with a reasonable period of time for the tenant to dispute the landlord's application must be apart of any new law.

10. Legal Rent

Rent Deemed Lawful, Section 141, Tenant Protection Act, makes any illegal rent that landlords have gotten away with charging for at least one year, the legal rent.

Any law that includes such a section that says what was illegal, is made legal if it goes unnoticed and unacted upon for one year, only encourages landlords and their agents to charge illegal rents in the hopes of getting away with it.

No such section should exist in any new landlord and tenant act.

Monies collected due to illegal rents, (including in past years,) should be allowed to be deducted from subsequent rents.

11. Discrimination on the Basis of Income and other issues

The most reliable means of ensuring tenants don't rent units they can't afford is the request for "first and last month's rent".

It is difficult enough for many tenants to afford two months rent at once. And no rational tenant is going to rent a unit they can not afford, even if somehow they could scrape up two months rent to sign the lease.

There is enough anecdotal evidence that allowing landlord's to discriminate whom they believe can and can not afford to rent, is used to hide discrimination of other kinds such as against single-parent families.

There is no need to permit this sort discretion on the landlords' part that is so often abused. Allowing landlords to collect first and last month's rent is more than sufficient to ensure tenants can afford the apartments.

While this is covered under the Ontario Human Rights Code, it causes confusion for tenants to have to also deal with a second covernment body, and so this and the following items should also be included in a new Ontario landlord and tenant act, as violations whether as things to advertise, to ask a tenant, or as a reason not to rent to a tenant:

  • Discrimination on the basis of income (ie. no welfare, will rent to "working people only", demanding employer's letter of reference or "work number", etc.);
  • Advertising "adults only" or "no children" buildings;
  • Advertising "no pets". (While these clauses are invalid, it is legal to still advertise this way, which is clear discrimination against those with seeing-eye dogs and other service animals for the disabled);
  • Demanding SIN numbers. (Illegal but still commonly done and an important privacy issue);
  • Demanding medical information, (which is probably done to discriminate against psychiatric survivors);
  • Discrimination based upon age, (eg. advertisements that say mature person only, or suitable for young working person).

12. Termination for illegal activities

Of course tenants who are found guilty in court of using their units for committing illegal acts that in some way endanger other tenants should have their tenancies terminated for the safety of other tenants.

Unfortunately, the Ontario Rental Housing Tribunal sometimes issues orders for the termination of leases, not on the basis of criminal convictions but on the landlord's belief that illegal activities may be going on, and for activities that do not endanger other tenants; This must be changed in a new tenant law so that it clearly stipulates that evictions must only be based upon convictions for certain offenses only.

13. Shelter Allowances

Shelter allowances for those on public assistance should reflect actual housing costs.

At present, Ontario Works, (welfare,) pays $195 a month for shelter for a single person.

That amount for someone not in rent-geared-to-income (RGI) housing is only $427.

These amounts need to be raised to reflect the actual costs of housing.

14. Superintendents

There are good superintendents and poor ones, but almost all are scared for their jobs.

Their protection under the law is minimal, and not only can they lose their jobs, but also their family homes with only 7 days from termination under Section 68, Tenant Protection Act.

Superintendents fearing for both their jobs and their homes may be under undue pressure by unscrupulous landlords to commit illegal acts such as harassing tenants or charging illegal fees. Giving superintendents more security including giving them first shot at vacant units in the building in which they worked, would relieve them of some pressure from some landlords to commit improper acts.

15. Rent Registry

The Rent Registry, was a library of almost all rents for rental units in buildings of 6 or more units in Ontario

The Rent Registry, was a good tool in preventing landlords from charging illegal rents.

It also provided a good unbiased source of housing cost statistics, versus the Canada Mortagage and Housing Corportation (CMHC) figures which are voluntarily provided by landlords.

16. Tenant Education

Many disputes between tenants and landlords, as well as between tenants, is due to a lack of understanding of the parties rights and obligations.

The Ministry of Municipal Affairs and Housing, should undertake on an ongoing basis the creation of education pamphlets and seminars for both tenants and landlords throughout the province to educate them in these matters.

This literature and these seminars should not be contracted out, to ensure they are accountable directly to the Ministry and so that they are not also used for other purposes such as for political ends.

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