Written by David Doorey, York University
Tenants have formed and joined Tenants’ Associations hoping to bargain collectively with landlords about repayment of rent arrears to avoid evictions during COVID. The Ontario Residential Tenancies Act requires the Landlord and Tenant Board to deny an eviction request if the reason is that the tenant joined a Tenants’ Association, but goes no further in protecting freedom of association. Tenants’ Associations have no legal rights; landlords can ignore them. The model of freedom of association in Landlord and Tenant Law parallels early 20th Century Labour Law and seems entirely out of step with recent Charter Section 2(d) freedom of association jurisprudence. Is Landlord and Tenant Law the next frontier for Section 2(d) litigation?
PROFESSOR HARRY ARTHURS published an article a while back in which he offered a “counterfactual”. What if the founders of Labour Law in the post WWII years had looked out at the world and noticed that disparities in economic power were not unique to labour markets? What if instead of creating a legal field called Labour Law, they had instead invented the ‘Law of Economic Subordination and Resistance’:
Suppose that they had developed a body of legal learning that dealt comprehensively not just with the regulation of employment relationships and labour markets, but of all relationships in which individuals are experiencing economic subordination, resisting it through various strategies of self-defense and seeking legal redress against it in various forums. [Professor Harry Arthurs]
Among the groups that Arthurs identified as potential beneficiaries of a law of economic subordination and resistance were tenants.
I was thinking about Arthurs’ framework recently when I spoke with a social justice lawyer about the struggles of tenants resisting evictions during COVID. There are obvious parallels between precarious workers and precarious tenants; indeed, they are often the same people, living pay cheque to pay cheque in the labour market, one missed rent payment from homelessness. Yet the legal responses in Canada to these related categories of precarity are very different. Landlord and Tenant Law (LTL) shares with Labour Law a basic recognition that the relationship it governs is often defined by inequality of economic power. Labour Law responds to this inequality in labour markets by imposing basic minimum standards and by facilitating collective bargaining so that workers can bargain on a more equal footing with their employers.
The Ontario Residential Tenancies Act (RTA), on the other hand, offers a substantially watered-down response to economic precarity in housing. What immediately stands out to a labour lawyer is the virtual absence of any legal infrastructure to protect freedom of association (FOA) in the landlord-tenant relationship. This is striking because there are lots of tenants’ associations that have for years advocated on behalf of vulnerable and precarious tenants, but unlike the case of employee associations, tenants’ associations function mostly outside of the law. While the RTA incorporates a basic right of tenants to associate without reprisals from landlords, it is a hollow right. The RTA includes no explicit requirement for landlords to recognize or bargain with tenants’ associations, nor is there any legal equivalent of a right to strike for tenants to pressure landlords to the table.
Collective bargaining law is based upon the straightforward premise that a group of workers have more bargaining power than a single worker. Our labour laws are entirely concerned with instantiating the right of workers to form and join employee associations so that they can bargain collectively with employers, and also with controlling collective worker power by channeling and limiting bargaining conflicts. The core elements of the Labour Law model include a right to associate free from employer interference, a duty to bargain in good faith, and a right to strike (and lockout).
Arguably, the RTA should be read in a manner that aligns with the full scope of protections for FOA recognized by the Supreme Court of Canada (SCC) in Section 2(d) jurisprudence. However, on its face, the RTA relies on the now discredited 1980s idea that FOA protects only a freedom to form and join associations and not rights to engage in collective bargaining or to strike. The fact that landlords may ignore tenants’ associations entirely even when they represent the landlords’ tenants raises the question of whether LTL should be the next legal sphere to attract Section 2(d) attention.
The Absence of Freedom of Association in Landlord and Tenant Law
Many tenants in Toronto struggle to pay their rent each month in normal times, but when COVID hit and many suddenly experienced a loss of income, the situation became dire. Thousands of people suddenly faced the prospect of being evicted from their homes. Some formed and joined tenants’ associations and through these associations reached out to landlords with a request to bargain agreements to avoid evictions. The associations’ proposals included partial forgiveness of rent arrears and an extended repayment plan that would enable the tenants to repay their debts to the landlord over time as their income returned.
According to complaints now before the Landlord and Tenant Board (LTB), at least one landlord ignored the associations altogether, in much the same the way that employers have ignored employee associations that have not been certified by Labour Boards or that represent employees excluded from collective bargaining legislation.Remember the Fraser decision in which agricultural employers refused to recognize and negotiate with their employees’ chosen association because no statute required them to do so? Similarly, the RTA includes no provision for collective bargaining, and no obligation on a landlord to acknowledge or negotiate with a tenants’ association.
The RTA does (indirectly) protect a right of tenants to form and join associations in that the LTB cannot grant an application to evict a tenant if the reason is that the tenant is a member of or is organizing an association (s. 83(3)).Some tenants in the cases before the LTB this week allege that their participation in the associations was a factor in the decision of their landlords to apply for eviction. This is equivalent to an unfair labour practice provision that prohibits termination of an employee for union activities. Labour legislation reverses the onus, requiring the employer to prove that the employee’s associational activities had nothing to do with the decision to dismiss. The reverse onus was enacted because governments recognized that employers are in the best situation to explain their decision and employees can’t get into the mind of the employer and usually lack access to employer records or other evidence that explains the decision. However, there is no reverse onus in the RTA with the result that the tenant needs to produce evidence that the reason for eviction was anti-association animus, which landlords obviously will deny.
When COVID hit, the government amended the RTA in a number of respects. One change required the LTB, in deciding whether to grant an eviction during COVID (after March 17, 2020 and until a future prescribed date) to consider whether “the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant’s arrears” (s. 83(6)). This is as close as the RTA comes to imposing a duty to bargain on landlords, and it applies only in exceptional COVID related circumstances. Landlords are presenting tenants with proposed “repayment plans” that require the tenants to pay all rent arrears on top of their ongoing obligations over a period of time. In practice, that sort of “agreement” will just delay the inevitable for most low-income tenants, since they will never have the means to pay their monthly rent plus an additional $1000 or more on top of that each month. In addition, the landlords are insisting that the tenants agree to what is known as a “s. 78” clause, which permits a landlord to apply to the LTB for an eviction, without notice, the moment a tenant fails to meet a term of a prior agreement with the landlord.
Labour lawyers can see clearly what is happening here. The landlord is making an offer it knows the tenant can’t accept, saying essentially, “unless you agree to pay back everything you owe by X date, we will evict you without notice.” Labour lawyers call what the landlords are doing here “surface” or “hard bargaining.” Surface bargaining is unlawful in Labour Law and it occurs when a party pretends to bargain but has no intention of ever reaching a deal. Hard bargaining is lawful and involves the more powerful party exploiting its power to insist upon a one-sided deal. However, in both cases Labour Law provides employees and their associations with tools to resist: a labour board will order a remedy against an employer engaged in unlawful surface bargaining, and the law protects a right of workers to strike in response to a hard bargaining employer.
In stark contrast, tenants confronting a landlord engaged in surface or hard bargaining in relation to rental rates or evictions, for example, are provided with no mechanisms to lawfully resist. It doesn’t matter to a landlord if a tenant accepts their one-sided proposal, because section 83(6) on its face simply requires that the landlord “attempt to negotiate”, and nothing more and there is nothing else that tenants can do (lawfully) to persuade the landlord to return to the bargaining table. The ‘duty to negotiate’ is entirely vacuous. All the landlord need do is present an “offer” that it knows the tenant can’t accept and then it can go before the Board claiming that it “attempted to negotiate”. And even this narrow duty to negotiate applies only during COVID and only to individual tenants—there is no obligation on landlords to recognize or negotiate with a tenant association, ever.
All of this sounds eerily familiar to labour lawyers.
The Fraser decision challenged the Agricultural Employees Protection Act, which on its face, required only that employers “read” or “listen to” representations from their employees and their associations, after which they could just walk away. The AEPA is widely assailed within the Labour Law community as a farce that makes a mockery of FOA and collective bargaining rights. However, even the AEPA provides a thicker bundle of collective rights than the RTA; at least it requires an employer to acknowledge the existence of and give an audience to an employees’ association. The SCC went further in the Fraser decision, ruling that the Charter guarantees “a meaningful process” of collective bargaining that requires employers’ actually engage in a “meaningful dialogue” with employees’ associations “in good faith”. The duty to “listen” to collective representations by employee associations imposes a duty to engage meaningfully and not just sit quietly and nod along.
While this thinner duty falls far short of the normal “duty to bargaining in good faith” found in most collective bargaining legislation in Canada, it still goes much further than the non-existent duty imposed in landlords to engage with tenants’ associations. That is a sad indictment of Landlord and Tenant Law. The failure of the RTA to require landlords to recognize and bargain with tenant associations is, predictably, producing other forms of tenant resistance. From a Labour Law perspective, the rise of “rent strikes” by tenants comes as no surprise. Just as desperate workers struck to force their employers to the bargaining table before there existed a “legal” right to strike in Canada, so too should we anticipate that desperate tenants will increasingly turn to self-help resistance to economic subordination until a legal model emerges that recognizes collective rights in rental housing.
Arthurs’ point was that once we step back and observe law’s role in framing, maintaining, and regulating resistance to economic subordination throughout society, we can immediately perceive strategies that reach across disciplinary and social boundaries. In a more recent article, Professors Ben Sachs (Harvard) and Kate Andrias (Michigan) build upon this idea, arguing for a rethinking of how law can be harnessed to build countervailing power across society. Here’s what they wrote about Landlord and Tenant Law:
[A] law designed to generate organizing among tenants would start by affirmatively granting tenants the right to form and join tenant unions. It would grant such unions the right to access information and landlord property for organizational purposes. It would vest the organization with authority to collect dues payments through deductions from rent payments. It would mandate that landlords negotiate with tenants’ organizations over rent and housing conditions. It would ensure that organizations have special rights of participation in administrative processes related to housing policy. And it would provide for the right of tenants to engage in rent strikes and protests, free from retaliation.
[Professors Ben Sachs and Kate Andrias]
COVID, and the threat of mass homelessness it has wrought, has exposed the precarity in the legal model of Landlord and Tenant Law. The fact that the law permits landlords to ignore tenants’ associations in a time of mass evictions is a stark reminder of the disconnect between the lofty goals and vaulted language in the SCC’s recent Section 2(d) jurisprudence expounding on the importance of freedom of association in the struggle to overcome economic precarity and the lived experience of the economically precarious in Canada.
[For more on this topic, check out the work of the Community Justice Collective in Toronto, which represents tenants and tenants’ associations before the Landlord and Tenant Board]
David Doorey, “The Striking Absence of Freedom of Association in Landlord and Tenant Law” Canadian Law of Work Forum (February 19 2021): https://lawofwork.ca/the-striking-abs…d-and-tenant-law/