Rental balancing acts — and how the Yukon fails miserably

Like a marriage, the competing interests of landlords and tenants require balance. But while the state usually stays out of our bedrooms, it’s…

Like a marriage, the competing interests of landlords and tenants require balance.

But while the state usually stays out of our bedrooms, it’s up to provincial, territorial and municipal lawmakers to equalize interests of landlords and tenants through regulation and enforcement.

“In the end, landlord and tenant legislation is a balance of interests,” said Ian Melzer, manager of policy and research for the Canada Mortgage and Housing Corporation in Ottawa.

“Ideally, it should be helping them both get what they need out of the relationship.”

Some provinces, like Ontario, endlessly work to get the balance right.

But the Yukon government appears content to stay out of mix.

In fact, compared with their Ontario counterparts, Yukon officials are limited in their powers to help tenants by the willingness of landlords to address problems.

Unless landlords agree to tackle complaints in arbitration or allow city inspectors into apartments — or unless a tenant takes them to court —Yukon landlords are effectively shielded from being forced to clean mold infestations, fix holes in floors or replace cracked windows through which winter breezes blow.

As The News reported last week, the situation is unbalanced.

A tenant who only makes a partial rental payment, or who misses one — despite an apartment that allows friends to fall through the floor and that is infested with mold — is still quickly evicted.

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“The dollars we pay rent with are safe, healthy and easy to use, so there’s at least an implied contract here that entitles any tenant to expect that,” said Dan McIntyre, program co-ordinator with the Federation of Metro Tenants’ Associations in Toronto.

While McIntyre’s maxim holds true for his Ontario home, it doesn’t apply in the Yukon.

The territory’s Landlord and Tenant Act, revised in 2002, obliges landlords to maintain apartments “in good, safe, healthy, and tenantable state of repair,” and, comply with health, safety, maintenance and occupancy standards.

The act gives Yukon rental officers power to arbitrate disputes and to enter apartments after receiving complaints.

But the power those officers have to issue orders to landlords is limited by the willingness of the landlord to participate in arbitration hearings.

The Yukon consumer affairs office can mitigate with a tenant who has a complaint, and deals with an average of 75 complaints every month, said Fiona Charbonneau, manager of consumer services.

“We do have powers under the arbitration; we can issue orders to a landlord — under arbitration,” said Charbonneau.

But arbitration hearings require both the landlord and tenant to submit written requests for the office to intervene, she said.

“We have not had an arbitration for many, many years,” said Charbonneau, tellingly.

For safety and cleanliness of dwellings, the landlord act defers to the Public Health and Safety Act general provisions written in 1958.

Those regulations are outdated, said Lynn Richards, manager of environmental health services, during an interview last week.

“They don’t have a safety component to them. If there’s a broken window or a hole in the floor — safety type issues — it doesn’t address those,” said Richards.

That means the power to resolve safety and health concerns still lies in the courts.

Ontario fixed that long ago.

In 1998, the Ontario Rental Housing Tribunal, an arms-length organization that allows both tenants and landlords to apply for resolutions of disputes, was born.

“It moves faster — courts generally tend to be more slow,” said Carol Kiley, a manager with the tribunal.

“It’s harder to get time in front of a judge than it is when you’re staffing with independent decision makers, and the nature of landlord and tenant disputes are that they generally need to be resolved quite quickly.

“It’s also much less expensive. Most of our applications are $45, but (applicants) get the money back if they prove their case,” she said.

Ontario’s tribunal has teeth: if someone breaks through the floor in an apartment, the landlord can be ordered to fix it.

“No questions asked — we’d probably bring in the municipality as well,” said Kiley.

The tribunal can also help a tenant struggling with mold.

“If we had a mold complaint, we would recommend that they call their municipality right away,” said Kiley.

“If there was no property standard bylaw, then we would send out a provincial inspector.”

Either can issue an order to have the mold cleaned, and there can be fines levied if it’s not, she said.

 “And there can be an application to the tribunal for an abatement on rent or to break the lease,” added Kiley.

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Municipal bylaws also play a role in the relationship and problems between landlords and tenants.

When acting on a tenant complaint about an unsafe or unsanitary apartment, the Ontario tribunal looks to both provincial and municipal bylaws where the apartment is located for powers to make changes, said Kiley.

“I would say 90 per cent of the municipalities have very strong bylaws,” she said.

But, again, this isn’t the case in the Yukon.

Whitehorse abides by the National Building Code, said city manager Dennis Shewfelt.

If a building goes up in 1960, it must meet the 1960 building code; if it is renovated in 1990, the renovation must meet levels required by the 1990 code, he explained.

The code changes approximately every five years, he said.

“From the municipal perspective, we have the authority to enforce the National Building Code, but the only time we enforce that is when the building is under construction, or when someone’s renovating,” said Shewfelt.

“We don’t have an inspection program that goes on just at any time.”

City building inspectors cannot enter an apartment or house unless the owner or landlord asks them to, said Shewfelt.

And unless a building is threatening to “fall down around your ears,” Whitehorse building inspectors don’t have grounds to condemn it.

“It’s very difficult, under our legislation. In my knowledge we’ve only done it on one or two occasions” where a building was condemned, said Shewfelt.

“We are limited, in a sense, what we can do with what our budget allows.”

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Since 2003, the CMHC’s website has listed the rights tenants have in all 13 provinces and territories.

Though there are no national landlord and tenant standards, there are benefits to 13 different approaches, said Melzer.

“You can try something, in part of the country, and if it works, it becomes a best-practice others can pick up,” he said.

The dispute-resolution tribunal in Ontario and other provinces appears to be one of those great ideas, he said.

“Having a body that you can go to and complain to, I think, is a useful thing.”

Putting too much onus on tenants to solve their problems is never a good situation, said McIntyre.

“We have folks working 10 to 12 hours a day to pay the rent: if the windows are broken, if the appliances need replacing, all the onus is on the tenant to take the action to get it fixed,” he said.

“If the landlord drags their feet, then there’s more action required. That’s the type of balance we’re a long way from achieving.”

In the Yukon, those health and safety issues fall under a landlord’s obligation.

The Landlord and Tenant Act establishes basic obligations for landlords to comply with, said Charbonneau.

“These standards, however, are neither identified nor regulated under this act,” she said.

“Individuals who wish to pursue those issues speak with the appropriate authorities.”

Those authorities are city inspectors and health and safety inspectors.

But as Shewfelt pointed out, city inspectors can’t enter a residence without permission from the landlord or owner.

And Richards, a health and safety officer, conceded in an interview last week: “I can honestly say it (the Public Health and Safety Act) does not adequately address safety issues.”