FAQ - Landlord Tenant Board

 

 

Access to Justice and Delays at the Landlord and Tenant Board – FAQ

Background

What are the current challenges at the LTB?

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.

What steps has the LTB taken to address these challenges?

What policy proposals can stakeholders offer to improve LTB operations?