An Eviction by Any Other Name
By Jeffrey Wang
It is a well-established principle and policy in Canadian law that everyone has a right to housing. Domestically this was established under the National Housing Strategy Act, which recognized “[that] housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.” Furthermore, as part of Canada’s accession to the International Covenant on Economic, Social and Cultural Rights, which came into force in Canada on August 19, 1976, the country agreed to “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing” [emphasis added]. The Government of Canada therefore has, if not a legal, then a moral duty to protect individuals' right to housing in this country.
One of the most fundamental parts of an individual's right to housing is to ensure that they can live securely in their home. In Canada, those who own their dwellings are well protected in this regard. Barring a breach of contract or a failure to meet obligation with either a creditor or government agency, or the commission of some crime with that property, homeowners are relatively certain that they will not face eviction in the near future. Yet for those who rent, this certainty is much thinner, indeed as I am to argue, nearly non-existent in Alberta.
In Alberta, matters relating to residential tenancies are covered by the Residential Tenancies Act, SA 2004 [the Act] and subordinate legislation, primarily the Residential Tenancies Ministerial Regulation [the Regulation].
The Act provides for several legitimate grounds of eviction for periodic tenancies, including: s. 11: eviction of an ex-employee; s. 12: eviction for condominium conversion; s. 29(1): eviction for substantial breach of the Tenant’s Covenant found at s. 21 of the Act [emphasis added]; and s. 30: eviction for significant damage or assault of a fellow tenant or the landlord. For our purposes, s. 11 and s. 12 are generally irrelevant and s. 30 is self-explanatory. The substantial breach referred to in s. 29(1) generally relates to failure to pay rent, interfering with the rights of either the landlord or other tenants, performing illegal acts on the premise, endangering others or the property, failure to maintain the property, or a series of breaches of a residential tenancy agreement [the lease agreement], the cumulative effect of which is substantial.
The Regulations add several other grounds for eviction of periodic tenancies: s. 2(a): eviction so that the landlord or a close relative can live there; s. 2(b): eviction so that the landlord can sell the property; s. 2(c): eviction so that the landlord can demolish the property or make major renovations; and s. 2(d): eviction so that the landlord can use the residential premises of the tenant for a non‑residential purpose.
The Act also provides some stipulations around evictions, including: s. 6(1): an eviction is not valid unless it is for one of those reasons listed in either the Act or the Regulations and s. 25: that the eviction should not be part of a retaliatory action against a tenant who made an application, filed a statement, made a complaint, assisted in an investigation or inquiry, or gave evidence at a hearing under this Act or the Public Health Act.
Without being drawn into a debate on the merits, efficacy, or strength of these protections, it is clear that as a matter of policy and law, the Government of Alberta seeks to prevent evictions unless it is within the aforementioned provisions of the Act or the Regulations. Yet in Alberta there is a third type of eviction that is, de facto, if not de jure, legal and yet is completely outside the provisions set in the Act or the Regulations. I am speaking here of economic evictions.
Economic eviction is when landlords use an extreme rise in rent in order to force tenants to seek other accommodations or to use the default of the tenant as grounds for eviction. This type of eviction is only possible if there are no strong rent-increase limitations in that jurisdiction. In Alberta, beyond the timing and manner of rent increases, there is an entire dearth of limitations on rent increase.
The issue of economic evictions has become more prominent in Alberta following the Norris Turner decision. In this case, the Alberta's Residential Tenancy Dispute Resolution Service, which has purview over the Act, found that raising rent 72.5%, from $870 to $1,500 a month was not a genuine rent increase, but rather an economic eviction. However, decisions such as these are rare and limited and even when the tenants are victorious the judgements remain paltry.
The earliest judicial decision on economic eviction was found in Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins [“Jenkins”]. In Jenkins, Milner’s Aloha Mobile Home Park raised rent for other tenants at a mobile home park from $310 per month to $350 per month while raising Jenkins’ rent to $930.00. The court found that the trebling of Jenkins’s rent and the fact that she was singled out was an attempt to evict while attempting to avoid the provisions of the Act. However, the court only made this finding because of other egregious conduct from the landlord, which the court accepted as true, including: removing some of the skirting of her trailer and not replacing it, without notice, permission or emergency (in 2010); attending at the rental premises and going under her trailer without notice, permission, or emergency (in 2011); cutting down a tree that extended over the rented premises where the serviceman stepped on her shed, damaged the shed, damaged her fence, and left debris in her yard (in 2013); and piling snow in front of her vehicle, apparently meaning that she had to do two hours of shovelling, when pregnant, in order to move her vehicle; among others (at para 11). Even more damning, the landlord made clear that the purpose of the rent increase was to evict Jenkins in statements including, “Yeah well I raised the rent up to $1000 a month to get you out of here didn’t I?,” and “Dam right rights [sic] I am singling you out! I want you out of here!” (at para 13). Proving illegal economic eviction requires a very high bar of clear, egregious, and odious actions from the landlord.
The high bar established by the Alberta Court of Queen’s Bench has become precedential in the Residential Tenancy Dispute Resolution Service. In 23001188 (Re) 2023 ABRTDRS 3, a landlord filed notice to increase the tenants rent by 100%, from $1,500 to $3,000 per month. Following pushback from the tenant, the landlord opted for only a 53% increase to $2,300.00 a month. The court found that this was an illegal economic eviction attempt but only because the landlord had also sent the following, in writing, to the tenant:
Unfortunately we are unable to renew the agreement till 2024. It wasn't an easy decision to make, but we have to meet the needs of our own members for different reasons. I hope you will understand and be able to find a house asap, we would like the new tenant to be able to move by the end of this month (August).
In obiter, the tribunal added, “If the Landlord had not clearly expressed a desire to end the tenancy, and had not attempted to double the rent by way of the August 28 notice, but had only served the Tenant with the September 7 notice to raise rent from $1,500.00 to $2,300.00 (a 53% increase), my decision on this matter might be different.” That is to say, the 53% rent increase (in reality an attempt at economic eviction) would have been accepted had the landlord not made his intent to evict known and first made the outrageous demand of a 100% increase. The lesson here seems to be: if you want to illegally evict your tenant through rent increase, do it quietly.
This principle of “just do it quietly” is seemingly reaffirmed in 20001013 (Re), 2020 ABRTDRS 40 where the landlord attempted to raise rents from $1,500 to $2,250, or 50% per month. Although the tribunal found this rent increase to be illegal, the manner in which it reached this decision and the obiter it provided are troubling:
Are economic evictions prohibited in Alberta? After all, the Residential Tenancies Act does not constrain a landlord’s ability to raise the rent by any amount. It could be the case that a 50% increase in rent is entirely reasonable, if a property is significantly undervalued, or if significant upgrades were made to the property during the tenancy, for instance.
That is to say, the 50% increase in rent was not a key issue in this case but rather the other hostile actions that the landlord had taken. As the court put it:
The likeliest explanation is that the Landlords were tired. They were tired of dealing with tenants who took an adversarial approach to matters both trivial and important. They were tired of continuing what had obviously become a very poor relationship with the Tenants. [...] This was, on a balance of probabilities, an economic eviction.
To read this in another way, a 50% rent increase could well be justified in other cases.
In the publicly available cases on this subject there appear no successful challenges of illegal eviction based solely on rent increases. An economic eviction can only be proven if there is egregious conduct and or intent to evict from the landlord as well as a large increase in rent. However, stepping away from law for a moment, a 100%, 50%, or even 25% increase in rent should be seen as similarly entirely unreasonable. Nothing else increases with such alacrity: not prices, not mortgages, not benefits, and certainly not wages. It should be a natural supposition that these double and even triple digit increases are prima facie evidence of economic eviction. However, that is a matter of policy for our elected legislature and not a subject that can be decided by either tribunals or courts which are constrained by pre-existing legislation. The present Government of Alberta has made it clear that it has no intention to place rent controls. Subsequent governments may also find this a difficult issue to push through: the political climate in this province is simply unripe for policies such as rent control. Yet, there should be pressure for at least the most lax of controls, a triple lock system perhaps similar to the UK pension scheme, which would allow landlords to raise rent either at percentages equivalent to the highest of: 1) the increase in house valuation, 2) the increase in inflation, and 3) 5%. This policy would at least ensure that ludicrous and economically unsound increases are clearly identifiable and therefore punishable. These controls would also ensure that Alberta brings itself in line with the goals, enshrined in law, by the National Housing Strategy Act and the International Covenant on Economic, Social and Cultural Rights.
There is one final matter which is within the court’s control, and it relates to sanctions when landlords are found to obviously be in breach of the Act. The present situation between tenants and landlords is that of David and Goliath. It is the unfortunate reality that tenants are usually poorer with fewer recourses to legal counsel while ironically funding the legal counsel of their landlord. Beyond economics, tenants face a host of barriers to even beginning the legal process, including fear of retaliation, harassment, and homelessness, caused primarily due to the inherent power imbalances in the renter-landlord relationship. These imbalances are outside the control of the courts and are social issues that must be addressed by the legislature. Yet the paltry damages offered by courts also prove a barrier to beginning the tribunal process. In Jenkins, the judge only suggested mediation to find an acceptable new rent rate and merely cautioned that “[the court will take] a jaundiced eye in light of the evidence to date and the attempt at the significant rent increase” (at para 55). In 23001188 (Re) 2023 ABRTDRS 3, the courts found that despite the egregious actions of the landlord that the remedy should be that monthly rent remain at the present level and that the tenants should have costs worth $100. The court further added that the landlord is free to raise rent so long as it followed “new and proper three-month notice.” In 20001013 (Re), 2020 ABRTDRS 40 the court found that the landlord’s liabilities for the illegal eviction alone only amounted to general damages of $300 and moving costs of $700. Again, at the risk of straying into matters of policy best decided by legislature, the moral question must be asked. For so serious a violation, is the best response that the courts can muster “talk it out amongst yourselves and be reasonable,” “try again next time,” and “$1,000 is enough compensation for the emotional toil of making someone homeless”?
There is also the question of representation. With such paltry awards, it is unlikely that any lawyer will be willing to take on these cases: no one is working for $100-1000 in damages. Therefore, tenants are forced to turn to pro bono or services like Student Legal Assistance (where the author is currently taking files for the Residential Tenancy Dispute Resolution Service). These services are already overstretched and ill-equipped to take on the additional workload. Rather, the tribunal can observe the persuasive precedent set by the Residential Tenancy Branch, the British Columbian equivalent of the Alberta's Residential Tenancy Dispute Resolution Service, 082022_Decision 8101 which awarded the tenants twelve times the monthly rent payable under the tenancy agreement totalling $49,300. The purpose of these awards is to deter bad acts. Where $100-1000 is entirely lacking in deterrence, twelve times the monthly rent will make landlords think twice before engaging in potentially illegal actions. This kind of decision will also encourage greater participation of legal professionals, which would help the province and the tribunal hold more bad apples to account.