Mayor Tory has power to protect tenants

Residential evictions are set to resume across Ontario on Tuesday. Mayor John Tory said he wished he had magical powers to stop them.

There is no need to resort to magic. Tory has legal power under the Emergency Management and Civil Protection Act (“EMCPA”) to implement an eviction ban in Toronto. The EMCPA allows the mayor of any municipality in Ontario to declare a citywide state of emergency. Mayor Tory declared an emergency in Toronto on March 23. It remains in effect.

When Tory declared the emergency, he acquired a new legal power under the EMCPA. The power is defined in Section 4 of the legislation. Section 4 says the mayor “may take such action and make such orders as he … considers necessary and are not contrary to law … to protect … the health, safety and welfare of the inhabitants” of the city.

This is an extraordinary power. It is broad, elastic and entirely in Tory’s hands.

The power is designed this way because it is meant to be used in an emergency, when swift, radical action may be required to prevent serious harm. The power is broad enough to allow Tory to ban evictions in this city.

There is one important limit on the emergency power: Mayor Tory cannot act “contrary to law.” The term “contrary to law” as it appears in the EMCPA is not defined in the legislation and has not been interpreted by a court. Yet Tory and others claim these three words leave him powerless to stop evictions. They make two arguments to this effect.

First, they say a municipal eviction ban is contrary to law because landlord-tenant matters fall under the province’s exclusive jurisdiction. This is inaccurate. The City of Toronto regulates landlordtenant matters already. Under Chapter 354 of the Toronto Municipal Code, the city requires all landlords who operate apartment buildings in Toronto to keep those buildings clean, well-maintained and pest-free.

The city enforces these standards and prosecutes landlords who breach them. Jurisdiction over landlord-tenant matters is thus shared between the city and the province. A municipal eviction ban may stretch the city’s jurisdiction, but that kind of stretching is precisely what the EMCPA permits.

The second reason Tory and others give for refusing to ban evictions is that doing so, they say, would frustrate the purpose of the provincial law governing evictions. The provincial law they’re talking about is the Residential Tenancies Act (“RTA”).

Nowhere in the RTA does it say that the law’s purpose is to facilitate mass evictions during an emergency. Nowhere does it say that the law’s purpose is to make thousands of people homeless in the middle of a global pandemic, in a city where shelters are overwhelmed, where homeless encampments are growing, and where the risk of the COVID-19 virus spreading in these and surrounding areas is disproportionately high. It cannot be the law’s purpose to wreak havoc on a society in this way.

In fact, the opening section of the RTA states that its very first purpose is to “provide protection for residential tenants from… unlawful evictions.” A declaration that evictions are unlawful in Toronto for the duration of the COVID-19 emergency is therefore entirely in keeping with the purpose of the RTA. There is no frustration.

Outside the context of emergencies, the Supreme Court of Canada has analyzed municipal laws using the “impossibility of dual compliance” test. The test deems a municipal law invalid if compliance with it would necessitate the breach of a provincial law. A municipal eviction ban easily passes this test. Landlords who comply with the ban do not thereby contravene the Residential Tenancies Act, because that act does not require landlords to evict anyone.

The bottom line is this — in an emergency, the city’s legal powers are meant to be used to protect people. They are not meant to be hidden behind or whittled down through artificially restrictive interpretations of the law.

Mayor Tory should use the power the law gives him to implement an eviction ban in Toronto.