Criminal Law and Landlord Tenant Disputes

This post is inspired by a series of CBC stories concerning tenant abuses in Ontario. Please understand, I am a criminal defence lawyer and roadside sanctions lawyer only. While I am touching on landlord-tenant disputes, I do not practice in this field of law. If you are in need of a criminal defence lawyer, please do not hesitate to call 403.452.8018. If you are in need of a lawyer who handles landlord-tenant issues, I am not qualified to help you in this regard.

CRIMINAL LAW AND LANDLORD TENANT DISPUTES

It is not uncommon for an aggrieved party to file a report with police, only to be told that the case is not criminal in nature and that the case should be pursued through a different legal process such as civil litigation. This advice is often correct; for there are a lot of bad investments, poorly executed business deals, employment issues and the like that are not criminal law propblems.  However, it is also not uncommon for our criminal justice system to ignore certain instances of criminal behaviour simply because it is not typical criminal activity.  If the allegations concern drug trafficking, impaired driving or violent crime, there is almost certain to be a police response. When the allegation concerns less obvious property issues, such as landlord-tenant fraud or mischief to rental property, there is a higher likelihood that law enforcement will be inclined to defer the aggrieved party  to a non-criminal law, regulatory body – such as a Landlord Tenant Board.

This post is inspired by a CBC report concerning a Landlord-Tenant dispute in Ontario.

https://www.cbc.ca/amp/1.7496291

While I sympathize with persons who must rent and due to Canada’s housing crisis are forced to pay inflated prices triggered by supply-and-demand issues, I also sympathize with people who invested their money into property, only to have that investment intolerably abused by mischievous fraudsters who are clearly abusing a regulatory structure designed to protect well-intended people from becoming homeless. I have read several stories about abuses by tenants in Ontario that have been exacerbated by Ontario’s Landlord-Tenant regulations along with what reads to be a virtually non-functional Landlord Tenant Board.

LANDLORD HORROR

According to the aforementioned CBC article, Verica Grgic immigrated to Canada from Croatia. She purchased a home where she raised her family. She later married and joined her husband at a different home. The couple decided to rent her bungalow.  Due to non-payment of rent coupled with other issues reported by the downstairs tenant, Mrs. Grgic applied to have the tenant evicted. About a year later, after $24,000 of unpaid rent and considerable damage to the property – apparently amounting to about $100,000 – she was finally authorized to change the locks.

That’s a full year where the landlord suffered loss of income and potentially paid a mortgage for a home she was not living-in, for a tenant who damaged that home each day that he or she freely lived in the residence.

"I'm not exaggerating — this was the worst year of my life," said Grgic to the CBC. "I am so disgusted. I would never believe this is the real system, but I learned the reality."

This is not only disgusting; it is disheartening.  Imagine walking into your property and seeing this:

• Hardwood floors coated with dog feces.
• Excrement growing mould in the kitchen.
• The home strewn with belongings and garbage.
• Walls and window sprayed and streaked with what looks like blood.
• A pungent ammonia-like odour permeating the home.
• Water damage flooding to basement suite.

APPLICATION OF THE CRIMINAL LAW

This tenant – unnamed in the CBC article -- had allegedly pulled similar scams on other landlords; reportedly totalling $15,000 of unpaid rent on each occasion.  The horror of Ms. Grgic’s experience is not merely loss of income, it is a story about what appears to be extreme wilful and intentional property damage.

According to the CBC, “[s]mall landlords across Ontario have told CBC News in recent years they've fallen victim to tenants who know how to use the LTB to their advantage. Landlords say these tenants intentionally drag out proceedings for months while not paying rent and, in some cases, destroy property”. 

In Canada, “mischief” to property is a criminal offence.

Section 430 of the Criminal Code of Canada, defines mischief as the wilful destruction or damage of property. Mischief can also occur if the property is rendered dangerous or useless, or If there is an obstruction to the lawful use, enjoyment or operation of the property.

If a tenant intentionally damages rental property, the criminal law arguably applies. If that same tenant damages the property to such an extent that the landlord is forced to do repairs to make it safe and rentable, the criminal law more strongly applies. In Ms. Grgic’s case, it appears that she lost a basement tenant because the damage caused by the upstairs tenant was so extensive that it clearly obstructed the downstairs tenants use and enjoyment of the property.

It appears Mrs. Grgic's tenant multiple preconditions for a mischief charge.

By way of a simple thought experiment, imagine living in a basement where water damage is impacting the roof and where the smell of urine from the tenant above has infected your living space.

Ms. Grgic’s case is not merely about a dog who had an accident; it’s about a tenant who appears to have wilfully permitted his or her pets to damage the property to such an extent that it was rendered virtually useless. In the opinion of this Alberta criminal lawyer, this is more than just a Landlord-Tenant issue, it is one that requires a criminal law response.

Not only did this tenant commit what appears to be an obvious mischief to property (or was at the very least a party to the property damage), it appears this tenant is a person who understands how to effectively defraud landlords due to the ineffectiveness of Ontario’s landlord-tenant board.  While I am sure that the vast majority of tenants pay their rent and do their level best to keep and maintain the rental property in good condition, the fact is that Canada cannot condone the behaviour of the small number of renters who are clearly abusing the system.

This abuse not only makes victims out of innocent landlords but does damage to Canada’s rental market. Solving Canada’s housing crisis cannot be achieved if Landlords make renting property so difficult that it will exacerbate homelessness or if inspires property owners to be unwilling to rent property altogether.

EROSION OF THE LANDLORD-TENANT RELATIONSHIP

Like almost all relationships, the landlord-tenant relationship is built upon trust. To my mind, the erosion of that trust does damage to the opportunity for people in need to receive the support they require from the community at large. When a Province’s regulatory body has become so ineffective that it is has become a laughing-stock target for abuse, perhaps the only option for people such as Ms. Grgic is to seek redress through the Criminal Justice system.

PRIVATE PROSECUTION

In cases such as this, police might not be inclined to investigate or charge. If this happens, I recommend that the aggrieved party seek out the assistance of a lawyer who is prepared to lay a “private prosecution”. Though potentially difficult, somewhat costly and time consuming, it is possible for a citizen to lay charges in cases where police refuse to do so.

The process for initiating a private prosecution is for the aggrieved party to appear before a Justice of the Peace for the purpose of swearing an Information alleging the charge. If the information is sworn by the Justice of the Peace, a court appearance will be scheduled where the aggrieved party can appear before a Judge to give evidence under oath to support “reasonable and probable grounds” to believe that a crime has been committed. For example, if police refuse to investigate and charge the tenant in Ms. Grgic’s case, she could swear the criminal Information, and appear before a Judge of the Ontario Court of Justice for the purpose of communicating under oath the damage to her property and providing evidence concerning the tenant’s abuses. In the opinion of this Calgary criminal lawyer, Ms. Grgic potentially has enough evidence to support reasonable grounds to believe that the tenant committed the criminal offence of mischief to property over $5000.  She might even have enough evidence to support a charge for fraud.

The benefit  of a complaint in this case is that the tenant could be brought up on criminal charges and as such, be more exposed to public scrutiny, which could have the effect of helping a future landlord from suffering the same fate as Mrs. Grgic.  Furthermore, the criminal law will also have the opportunity to prosecute the case and if successful, to send a message to others that denounces and deters the kind of conduct suffered by Mrs. Grgic (and others like her). Put another way, denunciation and deterrence is so very important because it could dissuade others who might abuse the property or the inefficiencies in Ontario’s Landlord Tenant Board from doing so in the future.

One of the primary objectives of criminal law is to denounce and deter unlawful conduct. Perhaps in Ontario it is time for law enforcement to take steps because the Landlord-Tenant Board cannot?

These are my thoughts, not yours.

David Chow

Criminal Defence Lawyer in Calgary, Alberta