REGISTRAR'S COURT COMMITTEE UPDATE:
GUIDANCE FOR TRUSTEES ON EVICTION ORDERS

To all OAIRP Members:

On behalf of the Registrars’ Court Committees for Toronto and Hamilton, we are advising of the recent decision of Associate Justice Ilchenko in Re Snaith, providing guidance for Trustees in respect of Landlord and Tenant Board eviction orders and the Stay of Proceedings under the Bankruptcy and Insolvency Act.

The Guidance to Trustees is as follows (at p. 47):

[182] As stated above, increasing numbers of these leave motions are appearing before the Toronto Bankruptcy Court, which covers Office of the Superintendent of Bankruptcy Divisions 31 and 32, which comprises a population of approximately 10 million people. The Judicial capacity to deal with these motions is only Associate Justice Rappos and myself.

[183] In order to properly advise debtors in their initial assessments, these reasons will be sent to the Ontario Association of Insolvency and Restructuring Professionals representatives on the Registrar’s Court Committee for dissemination.

[184] This Court cannot order the Sheriffs to change their policies of requiring an Order lifting the stay to continue eviction proceedings, as the lifting of the stay or the determination of the applicability of the stay is a discretionary decision of the Bankruptcy Court after reviewing the facts and circumstances in which the eviction was granted and the filing in Bankruptcy occurred.

[185] There needs to be some expectations management by Trustees so that Debtors can make choices while being fully aware of the tests for lifting of the stay of proceedings in the context of eviction, and the likelihood that leave will be granted for the eviction Orders to be enforced, particularly in the circumstances where the Tribunal has already terminated the lease and ordered eviction under the RTA.

[186] Debtors can then make decisions, in consultation with an LIT, as to whether a filing under the BIA is appropriate for their situation where the lease has been already terminated by the Tribunal and eviction has been ordered.