Tenants Ignoring COVID-19 Protocols?

Despite widespread media
coverage and landlord communication of COVID-prevention protocols, some tenants
and occupants of multi-res buildings continue to host gatherings and continue
to ignore physical distancing in their buildings. Some tenants are contacting
landlords and alleging that other tenants or staff either have the virus or are
breaching medical or self-isolation protocols. In some cases the information
provided is reliable and in others it is entirely speculative and based on
fear, animosity and rumour. There are expectations that landlords should be
policing and enforcing COVID-prevention protocols in their buildings. What are
landlords legally obliged to do in these circumstances?

Landlords’ have a legal
duty of care to residents and staff; statutory legal obligations imposed by the
Occupiers’ Liability Act; and, further statutory legal obligations
imposed by s. 20 (“health and safety standards”) of the Residential
Tenancies Act (RTA). This does not mean landlords have to proactively
monitor and enforce compliance, or set up a “snitch line”, or take
action based on unsupported (and especially “anonymous”) allegations.
Landlords do have an obligation to act, however, upon receipt of reliable and
credible evidence that building residents are being put at risk because of a
failure by tenants, or in some cases staff, to comply with health and safety
protocols. Where tenants host gatherings, or are known to be in breach of
quarantine or self-isolation protocols, landlords have an obligation to provide
those tenants with specific details of the apparent breach; inform them of the
foreseeable danger they pose to themselves and fellow residents; and, inform
them that if they fail to comply with protocols, they may be subject to formal
proceedings for termination of tenancy under the RTA.  A written record of
such warnings, with details, should be retained by the landlord and placed in
the tenant’s file.

If there are further
breaches by the tenant, then an N5 should issue specifying the nature of the
breach and full particulars of same (“who, what, where, when”). Those
particulars should contain language confirming the written warning previously
given to the tenant and language demanding that the tenant comply with
COVID-prevention protocols. Following service of the N5, if the tenant again
fails to comply within the 7 day voiding period, it is prudent to then file an
application to the Landlord and Tenant Board (LTB) for termination of the
tenancy and eviction. In the case of flagrant violations of a first warning or
an N5, an N7 (“impaired safety”) or even an N6 (“illegal
act”) notice may also be warranted. Given the current paralysis of filing
and processing of applications at the LTB, such steps taken by a landlord may
seem futile, but at least the landlord will have acted in accordance with its
legal and statutory duty of care to other tenants and will have met an
appropriate standard of care.  At the time of writing, there is no other
practical process for enforcement of COVID-19 restrictions, although a recent
executive order issued for Ontario limiting “gatherings” (households
excepted) to five persons or less creates an offence (“illegal act”)
for those in breach. In our view, landlords are not required to go so far as to
contact police as that is neither a practical nor an effective landlord
response to allegations of non-compliance by tenants.

Multi-res landlords must
comply with their legal and statutory duty and standard of care so that they
meet their health and safety obligations to staff and residents. In addition, a
failure to meet legal obligations exposes landlords to litigation by staff,
residents or visitors who contract the virus and blame the landlord’s apparent
disregard of credible complaints as a contributing cause of damages flowing
from the person contracting the virus at the building: everything from
“pain and suffering” to loss of income and/or loss of life. Landlords
are easy targets for such allegations and plaintiffs are often likely to get a
sympathetic ear from the courts, particularly where the plaintiff can show that
the landlord failed to implement “best practices” in meeting the
legal duty and standard of care.

The limitation period
for the filing of personal injury law suits is two years, so careful attention
to documentation of landlords’ best practices and of implementation of
compliance requirements, is advisable so that, two years from now, you will be
able to defend your conduct in response to opportunistic lawsuits.

Further best practices for operators of multi-res buildings were set out recently at the following link: Message from Federation of Rental-housing Providers of Ontario