The Eviction Order and the Hospital Bed

The review is the correct first step, and it is urgent.

The two remedies do different jobs:

• Request for review (Board). Where a party did not attend a hearing, the Board may, on request, order a rehearing or set aside the order. This is the only remedy that can be obtained quickly enough to stop a sheriff's eviction. The Board's rules set a short deadline - generally ten days from the date of the order - so on a 4 March order the window was closing around 14 March. She called you on 13 March. File immediately and explain the delay in the request itself, supported by the discharge summary.
• Appeal (Divisional Court). An appeal lies to the Divisional Court on a question of law, generally within 30 days, and in most eviction matters leave is required. It is not a re-hearing, it will not be decided before the sheriff attends, and it cannot fix a missed hearing.

Practical point: tell the client candidly that a Divisional Court appeal will not save her tenancy in the next seven days. File the review, and simultaneously write to the Board and the landlord's counsel asking that enforcement be held pending the review. If the Board will not defer, consider an urgent motion in the Superior Court to stay. Do not let the client believe an appeal is a fast remedy when it is not.

The two elements.

1. She was not reasonably able to attend the hearing. The discharge summary is the core of this. Obtain the admission record showing the date and time of admission, the discharge summary, and - importantly - any evidence of what she did when she realised she would miss the hearing (a call log to the Board, an email, a message to the landlord). A hospitalization explains the absence; evidence of a prompt attempt to notify explains her conduct.
2. She has a meritorious case or a reasonable prospect of a different outcome. This is where the arrears calculation matters. Assemble the rent ledger, the increase notice, the guideline for the year in question, and her payment records. If the increase exceeded the guideline and was not otherwise lawful, part of the $4,320 may not have been lawfully owing.

Also prepare for relief from eviction. Even if arrears are owing, the Board may refuse to evict having regard to all the circumstances - the amount outstanding, her payment history, her ability to pay, and the impact on her household. Bring a realistic repayment proposal with proof of income and a budget.

Timing: promptness after discharge is a factor in her favour; emphasise it in the affidavit.

The $1,500 payment does not save the tenancy by itself. A notice of termination for non-payment is voided only if the tenant pays the full arrears plus the landlord's application fee before the hearing (or within any period the Board allows). A partial payment after the hearing and after the order does not void anything, and the landlord is not obliged to accept it as a compromise.

It is still useful, in two ways:

• It is evidence of good faith and of an ability to pay, which supports relief from eviction and any repayment plan.
• Credit it against the arrears; the amount actually owing must be calculated correctly, and a landlord cannot enforce an order for money already received.

The rent increase. Do not lead with it as a technical knockout; lead with it as an accounting issue. Break the arrears down month by month against what was lawfully payable. If the increase exceeded the guideline and was not authorised, the lawful arrears are lower and may be eliminated, which is a meritorious defence on the review and may also support a separate application to the Board for a rebate within the statutory time limit. Assess that remedy separately - it will not stop the eviction, and it should not be oversold to the client.