There is an urban legend that tenants cannot be criminally charged for not paying their rent. Criminal charges CAN be filed for non-paying tenants or ANYONE else that doesn’t pay their bills IF they entered into that business agreement with the INTENT to get something of value but surreptitiously intended to NOT pay the agreed sum in full.
The easiest ways to prove intent (the hardest element to prove), is to demonstrate a pattern of previous similar behavior, have a co-conspirator or other witnesses testify to their agreed intent and/or demonstrate parallel criminal activity such as utter forged documents / make false statements and/or personation for purposes of deceiving the other party (e.g., the home provider) to enter into a transaction that they would not otherwise enter into.
Where these elements, INCLUDING INTENT, are reasonably provable, then Criminal Code charges may be laid.
Yes, someone can be (and people are) criminally charged for not re-paying a loan or mortgage to a bank, not paying for utilities, not paying the credit card company, not paying taxes, etc where this is done after they formed their INTENT, e.g., at the time of entering into their contractual relationship, i.e., they deliberately mislead the person they contracted with into believing that payment would be made in full but had no intention of paying in full. E.g., bank fraud, mortgage fraud, theft of utilities, credit card fraud, and tax fraud, are all species of offences that can/have been charged under garden variety Criminal Code fraud.
Based on the Solo Facebook group, it appears that only in exceptionally grievous cases have fraudulent tenants been infrequently charged by the police in Ontario; this is something that needs to change if we are to improve the supply of affordable housing in Ontario.
Interestingly, those few cases where fraudulent tenants went to criminal trial that are reported in the media, appear to have a one hundred percent conviction rate. If anyone is aware of any cases which did not result in a conviction, please let me know. Because the Criminal Code is a federally enacted law, this provision has been used to convict fraudulent tenants in multiple provinces outside of Ontario; as far as I can discern, again with a 100% conviction rate.
Outside of criminal law, there might be an administrative law remedy available which might not require as high an onus of proof. I.e., there might not be an intent requirement.
Some government programs have the legal authority to demand the return of funds when the grant has not been spent on what it was agreed to be spent on. If she received free rent when her eligibility was based on a declared rent expense, then PERHAPS the program can insist that she pay that part of the grant back to the government. It is a great theory and the law to make it happen is usually in place, but trying to get the government to use it, might or might not be easy. Still, can be worth letters to public officials responsible for the program and perhaps to the media (careful with privacy law) if you are particularly motivated.
If you are already writing letters, then you can also try Canada Revenue Agency (CRA) to remove any tax advantage she may have applied for associated with paid rent AND you can try pushing this further since free rent that is not a gift is a taxable benefit. I.e., people are expected to pay income tax on free rent that is not a gift. People are also required to pay tax on anything that they obtain illegally as income. Yes, even the mob is required to pay income tax on their extortion, prostitution, gun running and drug dealing. So, technically stolen rent is again a taxable benefit.
Even if the administrative law routes are used, one might also go down the more challenging criminal law route if the facts support it.
To go down the criminal route one will need to demonstrate tenant’s INTENT to deceive in order to get free rent or free utilities or other items of value. I.e. the tenant made a promise that they did not intend to honor.
Examples courts have accepted as proof of intent:
- a pattern of doing this to previous housing providers, OR
- using fraudulent documents to obtain the tenancy.
Additionally, it stands to reason that having objective third-party evidence of the tenant bragging that they have the money to pay rent but have no intention of paying rent because they have figured out how to get free rent through deception might / should also work in a fraud trial.
If one can get a hold of the application form submitted by the tenant for the government program, and her entries indicate that she has paid rent that she has not paid at the time she verified the truthfulness of the form, then there might be fraud and or forgery charges available. My guess is that the form does not distinguish between rent owed (i.e. unpaid rent) and rent actually paid. But it cannot hurt to check the wording of the form and to what facts she would be normally expected to attest to.
Alternatively, if it can be shown that she promised to pay rent on the form and did not pay rent AND that she had the INTENT to not pay that rent when she filled out the form, then there may be sufficient grounds to charge her with fraud for her false promise to pay rent in exchange for getting the grant money. Once again, one would have to prove INTENT to deceive for profit, e.g. past patterns of behavior, fraudulent documents or another source of objective evidence.
This posting was made by “Intrepid Justice” on the Solo Landlord Facebook group.
