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Sarah Buhler

Pandemic did not affect eviction decisions in Saskatchewan, study says

Thursday, August 26, 2021 @ 9:29 AM | By Donalee Moulton

New research from the University of Saskatchewan College of Law has found that overall the COVID-19 pandemic did not appear to significantly impact eviction decisions made by the province’s Office of Residential Tenancies (ORT).

In her Aug. 3 article, “Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies,” author and law professor Sarah Buhler noted that, “Although landlords were somewhat less likely to get immediate eviction orders after the pandemic started, they continued to be successful in receiving eviction orders about 90 per cent of the time (as opposed to 97 per cent prior to the pandemic).

Law professor Sarah Buhler

Law professor Sarah Buhler

“It is important to emphasize that this research found that both during the partial moratorium and after it was lifted (and the pandemic worsened in the province), eviction decisions rarely mentioned the pandemic, and mostly did not include pandemic-related considerations in the written analysis,” she added.

During the study timeframe, between Jan. 1, 2020, and Dec. 31, 2020, more than 1,800 eviction cases came before the ORT, an administrative tribunal created to provide an efficient, affordable and accessible alternative to the court system for residential landlord and tenant disputes in Saskatchewan. The tribunal contracts lawyers (23 in 2019-2020) to act as hearing officers who preside over hearings, consider evidence presented by landlords and tenants and render decisions in accordance with the law

In March 2020, the ORT moved all hearings to a telephone system in response to the COVID-19 pandemic. In terms of tenants’ actual presence at hearings, the research found, there was no meaningful change pre- and post-implementation of the telephone hearing system. About 37 per cent of tenants attended their eviction hearing before March 17 when the system changed and about 38 per cent of tenants after this date. Most did not have legal representation. In 2020, fewer than two dozen tenants appeared to have lawyers assist them at their eviction hearings.

Buhler, whose study is published in the recent issue of the Journal of Law and Social Policy, stresses that the legal community needs to pay attention to the practices of administrative tribunals and to the access-to-justice barriers that exist at that level. “Administrative tribunals make decisions that are hugely consequential in the lives of the most vulnerable members of our society. Tribunals like Saskatchewan’s Office of Residential Tenancies are designed to be accessible, but this study showed that the majority of tenants did not attend their hearings,” she told The Lawyer’s Daily.

The study also showed that a swift judicial process does not always translate into real justice for vulnerable tenants, Buhler said. “While the tribunal releases its decisions very quickly and seems to value speed and efficiency, many of the decisions concluded the tenant should be evicted without undertaking a proper analysis of equitable considerations as required by the legislation and case law.”

One of the study’s main recommendations is that there be a greater investment in legal representation for tenants facing eviction. “Studies have shown that legal representation helps to reduce evictions,” Buhler said.

The 99-page study underscores that stable housing is a key determinant of health and well-being, and eviction is hugely destabilizing for individuals, families and neighbourhoods. This reality is an access-to-justice issue, said Buhler. “Most tenants are evicted because they are unable to afford their rent payments. So, I believe one of the most important issues is the issue of housing affordability. In this way, … affordable housing is of direct concern to anyone who cares about access to justice.”

Although Buhler’s research was focused on Saskatchewan, the findings are not likely unique to that province, she said. “There is a need for research on evictions across the country, and especially about whether specific legislative or procedural approaches can help reduce evictions.”