The Ontario Standard Lease has an optional clause about insurance (that parties can agree to), and the parties can agree to additional terms, as long as the terms are not in violation of the RTA.
Landlord's recourse for non-compliance would normally be an N5 for substantial interference with landlord's lawful right, privilege or interest under RTA section 64 (or, if the landlord lives in the same building which contains no more than 3 residential units, an N7 under RTA section 65).
What would work as proof of insurance? See this recent article:
"Janet Deline, a spokesperson for Tribunals Ontario, which includes the LTB, said tenants can be required to provide proof of insurance if the landlord and tenant agreed to it in the tenancy agreement.
“Whether the entire policy is required or if other options are available will depend on what the parties have agreed to in their tenancy agreement,” Deline said.
Ontario’s standard-form lease only mentions “proof of coverage.” Asked whether a copy of the complete policy would be required under those terms, Deline said what counts as sufficient proof would be up to an adjudicator if a dispute over coverage went as far as an application filed at the LTB."
Evictions for conduct are often quite complex, so it's highly recommended to get legal advice.
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Divisional Court rulings:
1)
Stanbar Properties Ltd. v. Rooke, [2005] O.J. No. 6363, 2005 CarswellOnt 10519
"[10] As well, it is my respectful view that the Tribunal erred in declining jurisdiction. The refusals of the respondent to arrange for pre-authorized direct debit and to provide proof of insurance coverage were in breach of consensual provisions of the tenancy agreement to which he was a party and, in the language of section 64 (1) of the Act, his refusals substantially interfered with the appellant's lawful rights acquired by it as a result of the agreement. Accordingly, the Act authorized the appellant to give notice of termination of the respondent's tenancy and, subsequently, to apply to the Tribunal.
[11] This interpretation of the Act is in accordance with the language of the Act and reflects the very wide jurisdiction which the Legislature has conferred on the Tribunal, particularly with respect to matters relating to the obligations of landlords and tenants and security of tenure."
2)
Morguard Residential v Asboth, 2017 ONSC 387 (CanLII), <https://canlii.ca/t/gx86n>
"3) The appellants were refusing to honour their agreements. [...]
5) The reference to a breach of the agreement between the City and the landlord to which the appellants are not parties in the N5 notices is immaterial and does not render the N5 notices invalid. [...]
7) The breach of a consensual provision in a tenancy agreement can fall within the scope of s. 64 of the Act and can constitute substantial interference with the landlord’s lawful rights."
LTB rulings:
1)
Anna Solomon's standard order:
TSL-85766-17 (Re), 2017 CanLII 60837 (ON LTB), <https://canlii.ca/t/h5zj4>
"1. The Landlord served an N5 Notice of Termination (N5) upon the Tenant because the Landlord received notification that the Tenant’s insurance policy was cancelled effective May 3, 2017.
2. According to paragraph 33 of the tenancy agreement the parties signed, the Tenant is required to have fire, property damage and tenant’s liability insurance at all times and to provide written proof of such coverage to the Landlord. The Tenant also signed a separate form entitled “Tenant Insurance”, acknowledging the terms of the tenancy agreement that require the Tenant to have insurance throughout tenancy.
3. By failing to comply with the requirement to have insurance, the Tenant has substantially interfered with a lawful right, privilege or interest of the Landlord. If a fire was to occur in the rental unit when the Tenant did not have insurance coverage, the associated risks (property damage, liability) could potentially shift to the Landlord. Therefore, the Landlord has an interest in having the Tenant insure the rental unit. Further, the Divisional Court has held that the breach of a consensual provision in a tenancy agreement falls within the scope of section 64 of the Residential Tenancies Act, 2006 (the “Act”) and constitutes substantial interference with the Landlord’s lawful rights (see the decisions in Stanbar Properties Ltd. v. Rooke, [2005] O.J. No. 6363 and Morguard Residential v. Asboth, 2017 ONSC 387).
4. PC is the Building Manager for the residential complex. PC testified that as of the date of the hearing, the Tenant has not provided the Landlord with proof of insurance coverage. Therefore, I am satisfied on a balance of probabilities that the Tenant did no void the N5 pursuant to section 64(3) of the Act.
5. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, and find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. I considered the following three factors under section 83 of the Act. First, the Landlord submitted an email the Tenant sent the Landlord or an agent of the Landlord on May 23, 2017, advising that he will be leaving the apartment before July 31, 2017. PC testified that he does not know if the Tenant moved out of the rental unit. I find that while the Tenant’s email is not a valid notice of termination because it is not signed by the Tenant as required by section 43 of the Act, it demonstrates the Tenant is not interested in continuing the tenancy. Second, the Landlord’s legal representative directed me to the Board’s Order number TSL-84993-17 issued July 4, 2017, which terminated the tenancy July 31, 2017. Third, the Tenant did not attend the hearing to present evidence or submissions in support of granting relief from eviction. For these reasons, the order will be a “standard” eviction order, terminating the tenancy in 11 days."
2)
Kevin Lundy's Review showing that even if the landlord hasn't enforced the insurance requirement in 14 years, it is still a valid and enforceable requirement in the lease.
SWL-07401-17-RV (Re), 2018 CanLII 41857 (ON LTB), <https://canlii.ca/t/hs06s>
"1. In order SWL-7401-17, issued on October 23, 2017, the hearing Member determined that the Tenant breached the terms of his tenancy agreement by failing to provide proof upon request by the Landlord that he had tenant’s insurance kept in full force and effect. However, the Member also found that this breach of the tenancy agreement did not amount to substantial interference with a lawful right, interest or privilege of the Landlord, sufficient to constitute a breach of subsection 64(1) of the Residential Tenancies Act, 2006 (the ‘Act’).
2. The tenancy commenced on May 1, 2003. The signed tenancy agreement includes the following term:
22. The Tenant shall, during the entire period of this tenancy and any renewal thereof, at his sole cost and expense, obtain and keep in full force and effect, fire and property damage and public liability insurance in an amount equal to that which a reasonably prudent Tenant would consider adequate. The Tenant agrees to provide to the Landlord, upon demand at any time, proof that all such insurance is in full force and effect and to notify the Landlord in writing in the event that such insurance is cancelled or otherwise terminated. The Tenant expressly agrees to indemnify the Landlord and save it harmless from and against any and all claims, actions, damages, liability and expenses in connection with loss of life, personal injury and/or damage to property arising from any occurrence in the Rented Premises, the use thereof by the Tenant, or occasioned wholly or in part by anyone permitted to be in the Rented Premises or the building by the Tenant.
3. There was no dispute at the original hearing that the Tenant failed to provide proof of insurance upon the commencement of the tenancy. On or about July 1, 2012, the Landlord requested in writing that the Tenant provide proof of insurance. While the Tenant did not comply with this request, the Landlord did not pursue termination of the tenancy at that time. The Landlord did not raise the issue again until April 1, 2017, when it again requested in writing that the Tenant provide proof of insurance coverage. When the Tenant again failed to comply with the Landlord’s request, the Landlord served the Tenant with an N5 Notice to terminate the tenancy (the ‘N5 Notice’) pursuant to subsection 64(1) of the Act. It is also not contested that since the Tenant failed to provide proof of insurance during the seven days following service of the N5 Notice, he failed to void the notice pursuant to subsection 64(3) of the Act.
4. In the continued absence of compliance from the Tenant, the Landlord filed the L2 Application with the Landlord and Tenant Board (the ‘Board’) on September 5, 2017. In the interests of resolving the issue prior to a hearing, the Landlord again requested proof of coverage from the Tenant on September 15, 2017, to no avail. As of the date of the present review hearing, the Tenant has never provided the required proof of coverage.
5. The hearing Member considered the Ontario Divisional Court’s decision in Stanbar Properties v. Rooke and quoted the following paragraph of that decision in the order:
10. As well, it is my respectful view that the Tribunal erred in declining jurisdiction. The refusals of the respondent to arrange for pre-authorized direct debit and to provide proof of insurance coverage were in breach of consensual provisions of the tenancy agreement to which he was a part and, in the language of section 64(1) of the Act, his refusals substantially interfered with the appellant's lawful rights acquired by it as a result of the agreement. Accordingly, the Act authorized the appellant to give notice of termination of the respondent's tenancy and, subsequently, to apply to the Tribunal.[1]
6. However, the hearing Member distinguished the decision in Stanbar from the present facts on the basis that in Stanbar, the landlord filed the application in timely manner, whereas in the present case, the Landlord waited over fourteen years to pursue eviction. The Member found that the Landlord offered no reason for the delay in enforcing the term of the tenancy agreement, noting that the Landlord bore the onus to demonstrate that “that the lack of insurance has had a substantial impact on the Landlord’s reasonable enjoyment, lawful rights, privileges or interests either during the 14 year period, or that going forward a continuation of the breach will substantially interfere with the Landlord.”
7. The Member ultimately dismissed the Landlord’s application on the basis that the Landlord failed to demonstrate that the Tenant’s breach substantially interfered with a lawful right of the Landlord:
2. There was no evidence presented by the Landlord to support that the Landlord’s lawful rights were “substantially” interfered with by the Tenant failing to provide tenant insurance during the 14 year period. The Landlord failed to adduce any evidence that this breach going forward would have a negative impact on the Landlord and substantially interfere with the Landlord. Had the Landlord believed that their reasonable enjoyment, lawful rights, privileges or interests where being substantially interfered with, one would think the Landlord would have brought this application well before 2017 when the Tenant failed to provide proof of insurance at the onset of his tenancy. The Landlord knew or ought to have known that the Tenant didn’t have tenant insurance and was in contravention of the lease agreement in the beginning. The onus is on the Landlord to prove on a balance of probabilities that the interference is substantial. Although the Landlord asked twice for the Tenant to provide proof of insurance, they failed to provide any evidence to support substantial interference in the past or going forward, I find the Landlord has failed to prove the interference was substantial. [Emphasis in original]
8. I agree with the Landlord’s Legal Counsel that the hearing Member erred in the above analysis by conflating substantial interference with a lawful right, interest or privilege of the Landlord with the potential impact of that interference upon the Landlord.
9. In the recent decision of Onyskiw v. PJM Property Management Ltd., the Ontario Court of Appeal affirmed the Supreme Court of Canada’s approach to statutory interpretation:
39. The question as to how a statutory provision should be interpreted has been answered definitively by the Supreme Court of Canada. On numerous occasions, the court has adopted the approach to statutory interpretation espoused by E.A. Driedger as the only applicable approach, namely:
[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
10. Subsection 64(1) of the Act provides as follows:
64. (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. [Emphasis added]
11. The Board is required to read this provision in its ordinary grammatical sense in the context of the intent and purpose of the Act as a whole. As a result, if a landlord has a lawful right, interest or privilege, it may serve the tenant with a notice of termination if the tenant’s conduct substantially interferes with that right, interest or privilege. The Board has no duty or discretion to engage in a further inquiry to assess whether the right, interest or privilege itself is a “substantial right, interest or privilege.” The only question is whether the landlord has a lawful right, interest or privilege, and if so, whether the tenant’s actions substantially interfered with that lawful right, interest or privilege.
12. In the present case, there was no dispute that the Landlord had a lawful right to require the Tenant to provide proof that he has the requisite tenant insurance in full force and effect upon request of the Landlord at any time. The Landlord also demonstrated that it requested the required proof on two separate occasions, once in 2012 and later in 2017. The Tenant’s failure or refusal to provide requested proof of insurance coverage served as a complete interference with that lawful right.
13. That the Landlord delayed in enforcing this lawful right is irrelevant. As the wording of paragraph 22 of the tenancy agreement permitted the Landlord to make its request “at any time,” the delay between the Landlord’s two requests was of no consequence and within the agreed terms of the contract. The right to be provided with the Tenant’s proof of insurance coverage upon request “at any time” was also not extinguished or diminished over the course of the tenancy. As a result, there is no basis for any inference that the term was any less lawful or enforceable in 2017 than it was on the date when the signed the agreement.
14. The proper inquiry then is not whether the lawful right is “substantial,” but whether the Tenant’s actions substantially interfered with this right. As the Landlord’s Counsel rightly noted, if the Tenant’s unilateral refusal to comply with the Landlord’s lawful right does not amount to “substantial interference” with that right, then nothing could.
15. The impact of the Tenant’s breach relates not the determination of whether subsection 64(1) of the Act was breached, but consideration of discretionary relief against eviction under section 83 of the Act. However, before the Member turned to discretionary relief, she was required to first consider whether the Tenant’s actions substantially interfered with the Landlord’s lawful right. The hearing Member’s substitution of the latter analysis for the former ultimately resulted in a serious error in the order."
3)
Renee Lang's 'unconditional' eviction order:
TSL-75883-16 (Re), 2016 CanLII 79648 (ON LTB), <https://canlii.ca/t/gvq9l>
"14. The Landlord served the Tenant with an N7 Notice of Termination (‘N7 notice’) which alleges that the Tenant substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord in a residential complex that has three or fewer residential units. The specific allegations in the N7 notice are as follows:
- The lease requires the Tenant to obtain and maintain renter’s insurance and the Tenant does not have renter’s insurance;
[...]
Renter’s insurance
16. It is uncontested that the Tenant’s lease requires him to obtain general liability insurance and insurance on the Tenant’s property.
17. At the hearing on September 8, 2016, the Tenant testified that he has renter’s insurance. At the hearing the Tenant submitted a letter from an insurer. The insurer’s letter states that they have received the Tenant’s claim through the insurance agent and they need further information before they can adjudicate it. The letter is proof that the Tenant made a claim; it is not proof that the Tenant is insured.
18. The Tenant testified that he has an insurance policy but that he left it at home. When this matter was adjourned, the Tenant stated that he will bring the insurance policy to the adjourned hearing.
19. The Tenant abruptly left the hearing on October 11, 2016 before this matter could be resumed. The Tenant did not submit a copy of his insurance policy at the hearing on October 11, 2016.
20. At the hearing on October 11, 2016, the Landlord’s representative showed me a copy of a letter from the insurance company, written to the Tenant, stating that the Tenant’s application for insurance has been denied because the Tenant has not paid a premium.
21. Given the Tenant’s failure to submit a copy of an insurance policy and given the Landlord’s uncontested evidence that the Tenant has no renter’s insurance, I find, on a balance of probabilities, that the Tenant has no renter’s insurance. I am therefore satisfied that the Tenant has breached his lease by failing to obtain renter’s insurance.
[...]
39. I am satisfied that the Tenant’s substantial interference with the Landlord warrants termination of the tenancy. The Tenant insisted, at the first hearing date, that he had renter’s insurance. The Tenant had an opportunity to provide a copy of his policy at the next hearing date; however, this was not provided. This behaviour demonstrates that the Tenant has no intention of getting renter’s insurance.
[...]
41. A conditional order would not be inappropriate in these circumstances. The Tenant has failed to obtain renter’s insurance yet refuses to acknowledge this; it is therefore highly unlikely that the Tenant will obtain insurance even if ordered to do so. [...]"
4)
Ruth Carey's decision to dismiss the case where the interference was deemed "minimal", the tenant brought proof of insurance to the hearing, and the landlord suffered no impact:
TEL-98422-19 (Re), 2019 CanLII 86986 (ON LTB), <https://canlii.ca/t/j2gmc>
"19. The second thing the notice of termination says is that the Tenant failed to provide proof of tenants’ insurance which is a requirement of her lease. The Tenant provided proof of that insurance at the hearing before me.
20. The lease agreement between the parties requires the Tenant to have tenants’ insurance, but it does not actually require the Tenant to provide proof of that insurance to the Landlord.
21. That being said, given the certificate of insurance the Tenant produced, it appears that at the time the notice was served the Tenant did not in fact have tenant’s insurance, so the Tenant was in breach of the tenancy agreement.
22. But not every breach of a tenancy agreement will justify serving notice of termination. Section 65 requires that the interference be “substantial” rather than minimal. Given that the Tenant’s failure to obtain contents insurance prior to the hearing before the Board has had no impact on the Landlord whatsoever, it is not clear to me the test of “substantially” has been met.
23. But even if I were to accept that the Tenant’s failure to have contents insurance “substantially”, rather than minimally, interferes with a lawful right, privilege or interest of the Landlord’s, section 83(2) of the Act requires the Board to review the circumstances and consider whether or not it should exercise its powers under subsection 83(1) to grant relief from eviction. As the Tenant’s default has been cured and the Landlord suffered no impact from her behaviour in failing to provide proof of insurance prior to the hearing, it would not be unfair in all of the circumstances to refuse the Landlord’s application."
5)
Ruth Carey's decision pointing out that the insurance issue can be a "red herring":
TST-08850-10 (Re), 2011 CanLII 50611 (ON LTB), <https://canlii.ca/t/fmqcn>
"[...] It seems to me fairly well-known and commonsensical that an area flooded with raw sewage and water needs to be disinfected and carefully cleaned to prevent infection and disease, and doing so is part of the necessary repair that goes along with the work that is needed when a sewage drain pipe backs up into a rental unit. This then leads to the issue of insurance which was discussed in evidence and argument by both parties.
19. I believe the issue of tenant’s insurance in cases such as this is largely a “red herring” meaning that it does not have an impact on the relevant law to be applied. It is not uncommon for a standard lease to require a tenant to have tenant’s insurance. Nor is it unusual for tenants with such leases not to bother purchasing such insurance. That is the situation here. The only unusual aspect with respect to insurance in this application is the fact that the Landlord actually added a separate schedule to its lease that had to be signed by the Tenant in order to reinforce the Tenant’s agreement and obligation to buy tenant’s insurance.
20. Clearly if the Tenant had tenant’s insurance as he was obligated to under the lease then he could have called his insurer after the flood and he probably would have been reimbursed for any damage to his lap top, rugs or furniture. It is also not uncommon for insurers to pay for professional cleaning when a flood occurs. If such a claim is made against an insurer, the insurer then has a right of subrogation meaning it can sue the landlord to recover the amount paid out to the tenant if the insurer believes the landlord’s negligence caused or contributed to the damage. In most cases such floods are not caused by a landlord’s negligence so the tenant simply receives a cheque from the insurer and nothing further happens.
21. However, the Act specifically says in subsection 3(1) that the Act applies despite any agreement to the contrary. As a result, the Tenant’s failure to abide by an agreement to purchase tenant’s insurance, does not relieve the Landlord from any financial liability that may arise under the Act and I believe the issue of the Tenant’s failure to abide by his lease is therefore irrelevant.
22. Based on all of the above I am of the view that the Tenant was entitled to expect the Landlord to properly disinfect and clean the unit as part of the work necessitated by the flood of sewage that occurred due to the drain blockage. As the Landlord did not do so I am of the view he is entitled to some compensation."
6)
Louise Horton's ruling ordering for tenants to maintain their insurance (with section 78 clause for ex parte eviction option for non-compliance):
TSL-34684-12 (Re), 2013 CanLII 51079 (ON LTB), <https://canlii.ca/t/fzzhc>
"1. The Landlord served a Notice to Terminate a Tenancy Early (‘N5’) upon the Tenants because the Landlord received notification that the Tenants’ insurance policy was cancelled. The Tenants did not correct the problem within the time period set out in the Notice.
2. The evidence before me is that, pursuant to the tenancy agreement, the Tenant is required to have fire, property damage and tenant’s liability insurance at all times. Not complying with this requirement substantially interferes with a lawful right, privilege or interest of the Landlord.
3. Since the application was filed the Landlord has received confirmation that the Tenants have obtained the appropriate insurance.
4. The only dispute between the parties was whether the Tenants should have to pay the Landlord’s $170.00 application fee. The Tenants submitted they should not.
5. In accordance with the Board’s Interpretation Guidelines, an applicant is generally entitled to the cost of filing their application where the application is made out. There is no dispute that the Landlord did not receive confirmation of insurance until after the application was filed. The Tenants submit the insurance company was late in providing the confirmation. In so far as the Landlord was aware, the Tenants had not voided the N5 Notice when the application was filed. It was the Tenants’ responsibility to show the Landlord they had rectified the problem. That the insurance company was late in providing confirmation does not relieve them of that responsibility. As stated at the hearing, having considered the circumstances, I find that the Tenants are responsible for the $170.00 application fee.
6. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act') and find that it would not be unfair to grant relief from eviction subject to the conditions set out in the order below.
It is ordered that:
1. The Tenants shall maintain insurance covering fire and property damage and tenant liability at all times during the tenancy, as per the Tenancy Agreement.
2. Upon request, the Tenants shall provide a copy of the insurance policy to the Landlord within 30 days of the request. The Landlord may make this request once per year.
3. If the Tenants fail to comply with paragraphs 1 or 2 of this order, the Landlord may, without notice to the Tenants, apply to the Board pursuant to section 78 of the Act for an order terminating the tenancy and evicting the Tenant."
7)
Kevin Lundy's decision on tenant contents insurance requirement being unenforceable (unlike tenant liability insurance):
SWL-81313-15-AM (Re), 2016 CanLII 22066 (ON LTB), <https://canlii.ca/t/gpmqn>
"21. The Landlords also took the position that the Tenant’s failure to provide them with proof of contents insurance as required by the tenancy agreement substantially interfered with their lawful right, privilege or interest. At the hearing, DC’s only mention of this issue was that he still did not have a copy of the Tenant’s policy. While the leading case on this subject is the Ontario Superior Court’s decision in Stanbar Properties Ltd. v. Rooke[1], neither party cited this case at the hearing. In Stanbar, the Court made the following finding:
The refusals of the respondent to arrange for pre-authorized debit and to provide proof of insurance coverage were in breach of consensual provisions of the tenancy agreement to which he was a part and, in the language of section 64(1) of the Act, his refusals substantially interfered with the appellant’s lawful rights acquired by it as a result of the agreement.[2]
22. In Stanbar, the Court made no distinction between liability and contents insurance and the differing purposes for which the insurance could be purchased. I find that in the present case, the type of property covered by the mandated insurance is relevant to the question of whether substantial interference is a realistic consequence of the Tenant’s refusal to purchase it.
23. At the hearing, DC acknowledged that the insurance required in the tenancy agreement referred not to liability insurance, but to contents insurance that would protect only the value of the Tenant’s personal property. As a result, the only items protected by this coverage would be the Tenant’s property and not fixtures or elements of the unit owned by the Landlords. Similarly, the only party who could receive any benefit from a claim against such a policy would be the Tenant and not the Landlords. DC testified that the Landlords are responsible for liability insurance for the building itself.
24. If the Tenant’s refusal to obtain insurance coverage could somehow result in a loss to the Landlords or adversely affect their interests, I would agree that her actions would result in substantial interference to a lawful right, privilege or interest of the Landlords. However, as she is the only possible beneficiary of such coverage and the only party who may be prejudiced by its absence, I do not find that substantial interference to a lawful right, privilege or interest of the Landlord can be established. As the present situation relates exclusively to contents insurance, I find that Stanbar may be distinguished. While I agree that the Tenant is in breach of her tenancy agreement with the Landlords, I do not find that the Landlords demonstrated on the balance of probabilities that this breach substantially interferes with a lawful right, privilege or interest of the Landlords."
8)
TNL-96606-17 (Re), 2018 CanLII 48258 (ON LTB), at para 25, <https://canlii.ca/t/hs8lr#par25>
"25. Misbehaviour under section 64 can include conduct which contravenes a landlord’s contractual rights set out in the tenancy agreement. In Stanbar Properties Ltd. v. Rooke, [2005] O.J. No. 6363, the tenant’s lease required that he provide the landlord with proof that he had liability insurance. As a matter of principle, the tenant refused to provide the required proof. The Divisional Court held that the tenant’s refusal to comply with the tenancy agreement substantially interfered with the landlord’s lawful contractual right."
It is ordered that:
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