LEGAL RIGHTS BULLETIN: One Last Kick at the Can

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Sarah received a notice of hearing from the Landlord and Tenant Board (LTB) for rent arrears (an L1 application) and for interference with the landlord’s reasonable enjoyment of the rental complex (an L2 application).

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What can Sarah do? Does she have a chance to save her lease?

The first thing Sarah should do is call the Chatham-Kent Legal Clinic (CKLC).

There are many supports in Chatham-Kent that the legal clinic can help her access, both for rent arrears and behavioral issues.

CKLC staff can explain the hearing process to him and can also assist him on the day of the hearing as Tenant Duty Counsel (TDC). Staff will give her free legal advice and may be able to negotiate a settlement for her.

The second thing Sarah needs to do, with the help of CKLC, is gather her evidence such as rent receipts, witness statements, and witness summonses. She will need this evidence to properly defend herself at the hearing.

The third thing Sarah needs to do is make sure she attends the hearing. If she does not show up, the CLI will usually evict the tenant at the request of the landlord.

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At the hearing, Sarah will be asked if she would like to participate in mediation. It’s always a good option. During mediation, a tenant can negotiate an s. 78 order containing a rent repayment plan or behavior agreement.

If Sarah speaks with TDC on the day of the hearing, they can try to get a Section 78 agreement that is fair to the tenant and landlord.

Section 78 of the Residential Tenancies Act (LRI) is a difficult section to understand. We often speak of a “one last kick in the box” order.

There is a major catch with art. 78 orders. If a tenant breaches (breaks) the agreement, the landlord can file an eviction application with the CLI and can get an eviction order without a hearing (called an “ex parte” order).

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If the landlord believes there is a breach, they still have to prove their case by filing an affidavit at the LTB. If the landlord proves their case, they will receive an ex parte eviction order and the tenant will receive a copy of the order.

If the T does not agree with the CLI order, he can request that the order be suspended (postponed) and that a review of the order be made. There are only limited circumstances in which the CLI will grant a stay and review.

In addition, the tenant’s request must be made within 10 days of writing the order. As with many RTA processes, it is very important to respond in a timely manner.

Tenants should seek legal advice if they have received a Notice of Hearing for an L1 or L2 application, or an LTB order with which they disagree.

A Section 78 agreement — the “final kick in the can” — may be the thing that solves tenancy problems.

Jeff Wilkins, CKLC Certified Paralegal (www.cklc.ca, 519-351-6771)

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