Motion to Set Aside an Eviction Order After an Agreement to Terminate or Tenant’s Notice

Introduction

Ontario continues to implement significant amendments to the Residential Tenancies Act, 2006 (the “Act”) as part of the legislative reforms introduced through Bill 97 and Bill 60. One of the lesser-known, but potentially significant, changes affects motions brought by tenants seeking to set aside eviction orders obtained under section 77 of the Act.

Effective September 21, 2026, Ontario Regulation 516/06 limits the circumstances the Landlord and Tenant Board (the “Board”) may consider when deciding whether it would be unfair not to set aside an eviction order obtained following an agreement to terminate the tenancy or a tenant’s own notice to terminate. These amendments may provide greater certainty to residential landlords who rely upon negotiated termination agreements or tenant-issued notices of termination.

Why This Change Matters

Section 77 of the Act provides landlords with a streamlined process for obtaining an eviction order where:

• the landlord and tenant entered into an agreement to terminate the tenancy; or
• the tenant delivered a notice of termination to the landlord.

Unlike most eviction applications, the landlord is not required to serve any notices, or applications, before obtaining the eviction order. Instead, the Board may issue the eviction order administratively based upon the documents filed by the landlord.

Although this procedure is intended to provide certainty where the tenancy has already been voluntarily terminated, tenants continue to have an opportunity to challenge the eviction order after it has been issued.

Motion to Set Aside an Eviction Order

Once the Board issues the eviction order, the tenant may bring a motion asking the Board to set the order aside. The motion must generally be filed within ten days after the eviction order is issued. The tenant must also provide advance notice of the motion to the landlord. Importantly, once the motion is filed, enforcement of the eviction order is automatically stayed. The landlord cannot enforce the eviction order until the Board has heard and determined the tenant’s motion. After hearing the motion, the Board may:

• set aside the eviction order;
• refuse the motion and lift the stay immediately;
• lift the stay on a future date; or
• make any other order authorized by section 77 of the Act.

Current Law Before September 21, 2026

Under the current legislation, the Board may set aside the eviction order where the tenant establishes that:

• no agreement to terminate the tenancy was entered into; or
• the tenant did not give notice terminating the tenancy.

Even where neither of those grounds is established, the Board may nevertheless set aside the eviction order if, after considering all the circumstances, it would be unfair not to do so. This broad discretion has historically allowed adjudicators to consider a wide range of circumstances that arose before and after the agreement or notice was given, including changes in the tenant’s life after the notice or after the agreement was made.

What’s Changing on September 21, 2026?

Effective September 21, 2026, section 77 is amended to provide that the Board’s discretion to set aside the eviction order will be exercised only where the prescribed circumstances, conditions, or tests have been satisfied. Ontario Regulation 516/06 now prescribes one important limitation on the Board’s consideration of fairness.

Although the Board must continue to consider all the circumstances, the regulation specifically prohibits the Board from considering changes in the tenant’s circumstances that arose after:

• the landlord and tenant entered into the agreement to terminate the tenancy; or
• the tenant delivered the notice terminating the tenancy.

What Does This Mean?

In practical terms, the amendments appear to provide greater certainty to landlords who rely upon negotiated termination agreements or tenant-issued notices. For example, a tenant may later lose alternative housing, experience financial difficulties, reconcile with family members, or simply decide that moving is no longer desirable. Prior to these amendments, those types of post-agreement events could potentially form part of the Board’s overall fairness analysis.

Beginning September 21, 2026, those subsequent changes in the tenant’s circumstances are no longer factors that the Board may consider when deciding whether it would be unfair not to set aside the eviction order. Importantly, the amendments do not eliminate the Board’s discretion entirely. The Board must still consider all other relevant circumstances that remain legally permissible under the legislation.

Practical Considerations for Residential Landlords

Residential landlords who rely upon agreements to terminate or tenant-issued notices should continue to maintain thorough documentation establishing that:

• the agreement was entered into voluntarily;
• the tenant clearly understood the agreement;
• no coercion, intimidation, or misrepresentation occurred;
• all statutory requirements were satisfied.

Although the new regulation limits one category of evidence the Board may consider, motions to set aside eviction orders will continue to depend upon the facts of each individual case.

Conclusion

The amendments taking effect September 21, 2026 represent another step toward increasing certainty in Ontario’s residential tenancy system. While tenants retain the ability to bring a motion to set aside an eviction order under section 77 of the Act, the Board’s discretion has been narrowed. Changes in the tenant’s circumstances occurring after the agreement to terminate or the tenant’s notice of termination can no longer be relied upon when determining whether it would be unfair not to set aside the eviction order.

Residential landlords should nevertheless continue to ensure that agreements to terminate tenancies are properly documented and entered into voluntarily, as motions under section 77 will continue to require the Board to consider the remaining legally relevant circumstances in each case.

Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. Every residential tenancy matter is unique, and the outcome of any particular matter will depend upon its specific facts and circumstances. Reading this article does not create a lawyer-client or paralegal-client relationship. If you require legal advice regarding a residential tenancy matter, contact the Residential Landlord Legal Team at Gobin & Leyenson LLP.

 

Footnotes

1. Residential Tenancies Act, 2006, SO 2006, c 17, s. 77.
2. Ontario Regulation 516/06, as amended.
3. Fighting Delays, Building Faster Act, 2025 (Bill 60).
4. Residential Tenancies Act, 2006, s. 77(8).