Access to Justice
The foremost issue with a digital-only service model is that tenants
experience many new barriers in trying to participate in their LTB
hearings. Tenants are mostly low-income earners. The 2021 Statistics
Canada report found that renter households on average earned $58,400. It
is widely acknowledged that tenants who live in poverty have difficulty
obtaining the necessary equipment, data speeds, and reliability
necessary to fully participate in these hearings. Digital hearings also
pose serious challenges for people living in rural and remote
communities, those whose first language is neither French nor English,
those living with a disability, or those with literacy and numeracy
issues[4]. This illustration below demonstrates the digital divide
facing tenants based on a 2021 study that found that 55.6% of tenants
participate in their hearings by phone, whereas 74% of landlords
participate by video in their hearings.[5]
Furthermore, a recent study by Deloitte Canada on the digital divide
found that “58 per cent of households surveyed report broadband speeds
above the Canadian Radiotelevision and Telecommunications Commission
minimum. By comparison, only 39 per cent of households earning less than
$40,000 per year met this threshold.”[6]
The ability of tenants to reasonably participate in their hearings,
including attending the hearings and presenting evidence, has been
significantly restricted through the LTB’s digital hearings. Some Courts
and Tribunals have recognized the digital divide facing Ontarians and
are moving back to in-person hearings – such as the Ontario Labour
Relations Board[7] and the Federal Court of Appeal[8]. Others offer
parties an equal choice of remote and in-person hearing options in the
case of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”)[9]
and Social Security Tribunal.[10]
The LTB’s decision to move to primarily a remote hearing model has
had a significant impact in reducing the number of in-person hearings
requested (people are not aware and others do not believe that their
request for an in-person hearing would be granted) and the number of
in-person hearings granted. The WSIAT, by comparison, has issued or
heard far more in-person hearings than the LTB – even though it receives
fewer requests for hearings.[11]
Delays
Over the last few years, renters, landlords, and their
representatives have been justifiably upset with the lengthy delays.
Complaints about the LTB’s delays in January 2020 led to the Ombudsman’s
office launching an investigation of the Board’s processes. At that
time, landlord applications took 7 weeks to be heard and tenant
applications were heard in 9 weeks.[12] In the years that followed, the
backlog worsened – even as the total number of applications received
each year fell far below its traditional numbers.
LTB delays and frustrations have also been noted by the Superior Court in matters of evicting tenants who live in condominium units. Matters are now being brought to the Court notwithstanding that the Court does not have the jurisdiction to hear them.
Delays are not primarily due to the pandemic
The Province ordered a moratorium on LTB hearings from March 19, 2020
to August 1, 2020. This has contributed to the backlog – however, it is
not the primary reason for the current delays. Hearings did continue
during that period for urgent matters.[13] As well, in 2020/2021, the
LTB received only 48,422 applications and 61,586 applications in the
following year, which is significantly fewer than the 80,000
applications the LTB received annually prior to the pandemic. The
inability to offer hearings in 2020/2021 due to the pandemic coincided
with a significant decrease in applications for hearings. The conclusion
to draw from this is that the current backlog and delays in processing
applications cannot be primarily attributed to the pandemic eviction
moratorium. Instead, the delays can be attributed to three factors:
A) Digital hearings have led to delays
Digital hearings are poorly suited to what is, by its nature, an
adversarial format. Participants in a typical virtual meeting are there
for the same goal (to learn something or to achieve a task) and agree to
specific guidelines to govern conduct, such as not talking over other
speakers. For Ontario’s busiest tribunal, dozens of parties engage in a
complex litigation process with tenants’ intent on preserving their home
and landlords trying to protect their investment. It is far more
difficult to facilitate a hearing digitally at the LTB, as participants
are often confused, speak over one another, and / or experience lag –
all of which slows down the hearings.
Further, at the outset of each hearing there are delays for
moderators to take attendance, set out the rules of the hearing for
parties, determine if the parties wished to mediate their issue or
proceed to a merits hearing, and create breakout rooms for tenants
wishing to speak with TDC. Moderators and DROs have been almost
exclusively assigned to L1 hearing blocks (eviction applications based
on rent arrears) leaving adjudicators on their own in other blocks to
conduct these same tasks, all while performing their adjudicative
responsibilities.
When hearings were in-person, there were visual markers that sped up
the hearings, such as clear signs on doors and the adjudicator sitting
on an elevated desk. These visual markers helped participants navigate
the LTB’s processes.
This assisted many participants on the day of their hearings without
having to speak with tribunal staff. Now, there are many more
participants who require more support (and are not receiving it) to
present their case in the digital format. The move to a remote system
has many landlords, tenants, and their representatives agreeing that it
has led to delays at the LTB.[14]
B) Scheduling hearings provincially
Scheduling matters provincially, rather than regionally, has also
created delays. Provincial scheduling tends to favour the larger
municipalities with more tenants. In the past, parties could rely on set
local hearing dates and matters would be scheduled on those set dates.
Now, parties cannot predict when a matter will be heard.
When matters were scheduled regionally, it promoted more just
resolutions and prevented evictions. It enabled agencies to plan around
those set dates in their region and send staff to provide supports for
tenants living with low-incomes (i.e. rent bank money, referrals to
social service agencies, etc.). Some municipal housing and homelessness
programs would even send staff for the day because the block was
dedicated to supporting residents from their municipality. Some
municipalities would rent offices next to the LTB location to facilitate
this service. For example, the City of Windsor would rent office space
next to the LTB hearing room. This is no longer the case –
municipalities and social service providers are not able to be as
present with the current provincial scheduling.
TDC staff were also able to provide better service to tenants in
their catchments because they were rooted in their communities. That
strong relationship enabled enriched services and direct connections
with local service providers, local landlords, and knowledge of housing
stock. That expertise would enable parties to arrive at more resolutions
and mediated settlements, which alleviated some of the workload for
adjudicators, allowing them to focus on disputed matters. Now that
hearing blocks provincially scheduled, TDC cannot offer the same level
of service as they do not have the same deep relationships and knowledge
in other parts of the province.
Another benefit to regional scheduling was that it allowed
adjudicators to become more familiar with the local housing context,
thereby improving their decisions when they exercise s. 83[15] relief.
For example, an adjudicator from Southern Ontario would not know the
challenges that geography and the cold climate may have on the ability
of a tenant to find housing (eg. Moosonee has not had any new housing
created in the last 20 years) or maintaining their home. Furthermore,
adjudicators used to be more familiar in a regional model with vexatious
or abusive litigants within a region, which would improve overall
outcomes and discourage parties from filing needless and time consuming
applications.
In addition, the provincial scheduling has required TDC to juggle
multiple (and sometimes concurrent) blocks where the schedule sprinkles
addresses in the same region across several hearing blocks. This has
further eroded the level of service that TDC can provide and leads to
longer hearings when self-represented tenants do not have access to
legal advice. These same challenges also concern landlords and
representatives who have multiple applications at the LTB. The Thunder
Bay DSSAB, for example, had its application dismissed because they
failed to appear at a hearing when the LTB scheduled their two matters
on two separate and concurrent hearing blocks.[16]
C) Scheduling by hearing type
The third reason for the delays is that the LTB started scheduling
hearing blocks based on application type. In the past, with regional
scheduling, all types of applications were heard by the same
adjudicator. The switch to scheduling by type has resulted in greater
inefficiency and unnecessary hearings. A hypothetical example to
illustrate would be a tenant who is upset that they have a rodent
problem in their home that has gone unaddressed. The tenant files an
application to demand that their landlord fix it. The months long delay
of waiting for a hearing, while living with the problem, results in a
frustrated tenant deciding to withhold their rent. The landlord then
files an application to evict because they did not receive the rent that
month. As the wait continues, the landlord files another application to
evict because the tenant has now decided to miss several rent payments,
forcing the landlord to file a second application for eviction; this
time for persistent late payments. In this scenario, there would be
three separate hearings scheduled for the parties for the three
applications which originally arose out of the one issue; rodents and
landlord negligence. In our experience, the LTB is resistant to joining
applications which would make the process more efficient, but they were
more amenable to doing so when hearings were held in-person.
A regional schedule can accept multiple applications involving the
same building to be heard in the same block, thereby avoiding parties
having to file separate applications on the same facts, having to appear
at the LTB multiple times, and potentially obtaining separate outcomes
for each of the applications. Recently, the Divisional Court
found a landlord abusing the current scheduling process by trying to
obtain two separate orders on what was essentially the same issue.
Another benefit would see urgent matters scheduled sooner because they
would be scheduled for he next regional sitting, instead of an
undetermined time.
D) Operational services
In addition to the access to justice issues and lengthy delays, there
have been operational issues ongoing at the LTB for several years. Here
are some examples:
- In September 2022, all parties were waiting past 1030am for the host
to admit them for a 9am hearing. When they tried calling the 1-800
number and the local number an automatic message stated that it was
unavailable. An email was sent and an automatic reply was generated.
This matter involved a vulnerable client who was waiting with their
social worker.
- February 2022, a fee waiver was sent to the LTB. In June, an email
from the LTB was sent to the applicant stating that they did not receive
payment for the application and that the application would be closed.
Despite sending multiple emails that included the fee waiver, the
applicant received an email in August stating that the file was closed
because the fee had not been paid.
- A hearing was held for an eviction application in July 2021 and the
parties reported that, as of March 2022, they still had not received a
decision.
- A landlord filed an application within the 30 day time limit. She
was told that the Board lost the application. She refiled, but the LTB
told her that they could not accept it because it was filed past the 30
day limitation period and was out of time. She then was forced to file a
request to review that decision.
- Creating an account through the new online portal continues to be a
challenge, with confirmation emails in January 2023 sent more than an
hour later.
- A housing provider had its hearing in June 2021 and informed the
tenants at the start of the hearing that its application would be
cancelled and that they did not need to attend. They informed the
adjudicator that day. They did not receive the order until November
2022, an order which stated that neither party appeared at the hearing
that day.
- Housing provider and tenant agreed to terms on a matter and
presented it to the adjudicator. The order that was subsequently issued
contained numerous errors and it was received after the tenant already
vacated, which made enforcement on the other terms more difficult.
- In September 2022, an adjudicator granted an adjournment on the
consent of both parties to hear all applications (8 in total) together.
She also seized herself of these matters. In November 2022, a new
hearing notice was sent to the parties proposing to hear only a few of
the applications. The notice also had a date that was different form the
hearing date in the body of the email that contained the notice. A
follow up call to the Board indicated that the files were assigned to
another adjudicator and not to the seized adjudicator.
- The LTB’s capacity to address urgent matters has been significantly
hampered due to the closure of their physical locations because
immediate access to relevant documents are almost impossible within
Digital First.
- A tenant was locked out of their apartment by the Sheriff on
Thursday, December 8th. The tenant was aware that they owed rent but was
unaware a hearing had taken place and had no documents. They reached
out their local clinic for help. An email and fax to multiple parties
(including LTB leadership) was sent that same day asking immediately for
a copy of the documents. The documents were required to challenge the
decision because it contained the file number and rent arrears
information that is not available in any of the enforcement documents.
There was no response from the LTB until the documents were emailed the
clinic on the Sunday, which was the last day that the tenant could
obtain their belongings before the Sheriff arrived to change the lock.
Between Thursday and Sunday, the tenant experienced significant
uncertainty as to whether they could challenge the decision or move all
of their belongings out and give up on their home. In contrast, when
counter staff were providing in-person service, tenant representatives
would be able to immediately obtain the necessary documents and inform
the tenant of their rights and take steps to challenge the decision –
all on the same day.
