Newly
released Ombudsman report calls Ontario’s Landlord and Tenant Board
‘moribund’ and found the Tribunal to be ‘unreasonable’ under provincial
law. Yet, in some ways, the investigation still missed the mark on
justice.
For years, tenants and their advocates have been asking the province
to fix Ontario’s busiest yet most broken tribunal, the Landlord and
Tenant Board (“LTB”). The LTB’s pandemic era shift to a primarily remote
service model – holding hearings over Zoom and filing forms and
evidence through their digital portal – has been rife with problems from
the outset. Tenants, especially those living on low incomes, have been
particularly impacted. A digital/remote service model has created even
more barriers for many tenants to participate in their hearings and
successfully present their evidence, as many tenants living on low
incomes have limited or no access to a computer and reliable wifi. It is
hard for a tenant to stop their landlord from evicting them if they
can’t actually show up to their hearing.
Despite these digital barriers and the degradation of access to
justice they pose for tenants, what finally got the attention of the
Ombudsman’s office was the unprecedented delays in hearings and rulings,
delays that have seeded an enormous backlog of tens of thousands of
cases – almost 40,000 at present.
The report outlines
some of the many failures of the LTB; including the failure by the
province after the 2018 election to reappoint seasoned adjudicators and
promptly appointing new adjudicators to replace those whose terms had
ended. This attempt to run the LTB with many adjudicators who were
inexperienced and unfamiliar with residential tenancies law, and not
providing them with the appropriate support, has been an unmitigated
disaster for procedural fairness and for just outcomes. The report also
acknowledges the shocking finding that some tenants are waiting up to
two years to have their applications scheduled; by contrast most
landlords only wait 6-9 months. The Ombudsman notes that “it is
unconscionable to permit tenant applications to lie dormant for up to
six years.” The explanation given was that they did not set aside enough
time for those hearings. This might have been understandable for a new
tribunal but it is unacceptable for the LTB, which has been operating
since the late 1990s. This significant disparity signals to Ontarians
that tenant rights are inferior to landlord rights and that tenants
deserve less justice.
Further, the report found that the LTB only granted a tiny fraction
of requests for in-person hearings, accommodating a measly 4.3% of total
requests made. Their track record is similarly dismal on amount of
requests for use of a public access terminal at just 31.1% requests
granted. This speaks not to the demand for such services but to the
barriers that Ontarians have to overcome trying to access their
tribunal.
The dysfunction goes deep, and it’s every day Ontarians who suffer
the consequences – and none more so than tenants, who are being unjustly
and unfairly evicted in droves. Yet, what troubles us deeply as tenant
advocates and legal experts is not just what’s in the report, but
rather, what was skirted past or omitted entirely from the investigation
and resultant report.
First, the report suggests that the delays are due to poor
implementation of its new software program. Unfortunately, it neglects
to acknowledge that, prior to the move to its current remote service
model, the LTB was processing far more applications (80k/year) a decade
ago. It was doing so with fewer adjudicators than it has now and
scheduling hearings faster overall, with landlord applications being
scheduled within 5 weeks and tenant applications scheduled within 6
weeks. Whether it was due to lack of user consultation or another
factor when designing the service, the LTB chose not to use existing
best practices but instead introduced a brand new digital system that
cannot perform basic functions (such as tracking mediated agreements or
outstanding files). Thus, it goes beyond poor implementation. Software
that cannot even perform basic tasks will continue to lead to delays.
Second, the report also outlines the digital divide that tenants face
as a result of the LTB removing all of its in-person services and 44
hearing locations to its current remote service model. Its
recommendation to provide an IT support hotline (introduced last month
after 2.5 years of zoom hearings) as a sole solution does not recognize
the depth and extent of the digital barriers created by the LTB.
In-person services provided meaningful access for people with data and
phone minute limitations, who did not have the appropriate computer
equipment, with language barriers, numeracy and literacy issues, and
disabilities. They were able to better participate in their hearings and
assert their rights. It’s much harder to achieve this in the current
digital format.
Third, the report mentions that, in the past, hundreds of people
would file into the hearing rooms each day. This was true and actually a
good thing. Parties were able to resolve more disputes before appearing
before the adjudicator, because they were able to access homelessness
prevention programs that were staffed nearby. Tenant duty counsel
services and mediators were also available. More resolutions achieved
proactively meant fewer matters moved to a hearing and the backlog did
not pile up. Currently, there are far fewer mediators attending hearing
blocks than there were in the past. The same is true for duty counsel
and social service providers. Now, since those interventions are less
readily available in this new remote hearing format more matters proceed
before the adjudicator. When sustainable tenancies are not maintained
through either through interventions or being able to assert one’s
rights at the LTB, it worsens the province’s existing homelessness and
housing crisis. We must do everything we can to prevent evictions by
providing upstream supports and that includes restoring these supports
and options for tenants.
It is also clear that the Ombudsman heard most from landlords and
their representatives, and the 61 recommendations outlined reflect that.
Of the thousands of complaints submitted to their office, 84% were from
landlords. The loudest and squeakiest wheels do, it would appear, get
the grease.
Where does that leave tenants?
So where does that leave tenants? We know from our research that
tenants struggle to participate in digital hearings much more than
landlords do. The LTB has consistently refused to make in-person
hearings readily available for Ontarians who need them and the report
cited that in-person hearings represented just 0.07% of all hearings
held during the summer of 2021. That does not mean in-person hearings
are not necessary. It means that the LTB has abjectly failed to offer
them as a viable option and made it absurdly difficult for tenants to
make that kind of request.
Beyond recommending an IT support telephone line, there are hardly
any meaningful recommendations in the report that would resolve the
digital barriers that tenants experience. This is disappointing and a
missed opportunity to address the deeper challenges at the LTB.
Even if a tenant does make it to their hearing, the report also notes
that many adjudicators must hear 60 – 80 matters a day. The ends up
being around five minutes for each matter. Even worse, things are so
dysfunctional that evidence submitted sometimes is so far down the pipe
it is not included in the case file in time. Therefore, an adjudicator
may not be able to consider all of the relevant evidence. In an eviction
case, that means a tenant can be rendered homeless in just five
minutes, sometimes without all of the evidence being considered.
Imagine, if you will, a homeowner being told their bank will take just
five minutes to decide whether or not to re-possess their home and the
decision would be based on an incomplete file. Can you picture the
outrage? Yet, that’s exactly what happens to thousands of tenants each
year at the LTB.
What we recommend
There are a number of actions that the LTB can do to improve the
dysfunction and restore access to justice for tenants. Our
recommendations would also have the benefit of addressing the backlog
and shortening wait times.
They are:
- Return to regionally based in-person services across the 44 former locations
- Provide
in-person hearings and accommodations for those who need them, and
clear avenues to request these options. All parties should participate
in a hearing using the same format.
- Return to scheduling matters
by region, rather than application type. Applications related to the
same address should be heard together.
- Treat tenant applications with the same gravity and urgency as landlord applications
- Significantly improve mediator and adjudicator training on landlord and tenant law
- Create a process for legal representatives to view LTB case files even if not retained
- All
LTB forms and notices should be written in plain language and in
compliance with the Accessibility for Ontarians with Disabilities Act
(“AODA”).
- Hire former, seasoned adjudicators to address the backlog
- Use the technology at hand to track data related notices, filings and outcomes to better monitor eviction notices and outcomes
We urge the LTB and Tribunals Ontario to implement our
recommendations. Anything less will result in a continued failure to
address the needs and concerns of Ontarians.
© 2023 Advocacy Centre for Tenants Ontario - ACTO
