How long does it currently take to get a hearing scheduled at the Landlord and Tenant Board?

On February 24, 2021, the LTB held a Stakeholder Webinar. At that time we were advised that a non-payment of rent application, an L1 or L9, should now take about six months from filing for a hearing to be scheduled.

Many changes were made to the Residential Tenancies Act on September 1, 2021. More adjudicators have also been hired.

At that time I expect that a non-payment of rent application, an L1 or L9, should now take about 3-4 months from filing for a hearing to be scheduled.

The Ontario Landlord and Tenant Board are working to get hearings scheduled for L2 applications down to 3-6 months.

The wait for a hearing to be scheduled for other types of applications such as an A2, T1, T2, and T6 is currently longer than six months.

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Paralegal Representation

Every day our office receives calls from landlords across Ontario wanting to hire us for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Request to Expedite a Hearing

“The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:
a. the length of the delay, and the reason for it;
b. any prejudice a party may experience;
c. whether any potential prejudice may be remedied;
d. whether the request is made in good faith; and
e. any other relevant factors.”

With the backlog at the Landlord and Tenant Board, all landlords would like an expedited hearing to allow them to evict their tenant quicker at the Ontario Landlord and Tenant Board.

The LTB is receiving lots of requests for an expedited hearing from people who clearly do not qualify.

You should only file a Request to Shorten Time if you meet the eligibility requirements set out in Landlord and Tenant Board Rule 16.4  

“The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:

  1. the length of the delay, and the reason for it;
  2. any prejudice a party may experience;
  3. whether any potential prejudice may be remedied;
  4. whether the request is made in good faith; and
  5. any other relevant factors.”

A Request to Shorten Time may only be made once per file. If you do not meet the eligibility requirements at the time of filing your application you may be better off waiting to file the Request to Shorten Time. Your circumstances may change, and the Request to Shorten Time could be made later.

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Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

A Case Management Hearing can be the Most Important Hearing

A Case Management Hearing at the Landlord and Tenant Board can be the most important hearing whether the case settles or not.

The LTB Ontario may schedule a Case Management Hearing to deal with an application. Most CMH hearings are scheduled for tenant applications. Case Management Hearings are subject to the Landlord and Tenant Board’s Practice Direction on Case Management Hearings, and Landlord and Tenant Board Rule 9. See the Landlord and Tenant Board’s website for its practice directions and rules.    

The Landlord and Tenant Board Practice Direction on Case Management Hearings (CMH) set out the hearings purpose as:

“The CMH has two purposes. First, it provides an opportunity for parties to explore settlement of the issues in dispute, usually with an LTB Hearing Officer, who is trained in dispute resolution. Second, if parties are unable to resolve all the issues in dispute, the LTB will make directions to facilitate a fair, just and expeditious merits hearing, or in appropriate circumstances, make orders finally determining matters agreed to by the parties or not in dispute.”

In my opinion there are many other benefits of a Case Management Hearing.

The Landlord and the Tenant should attend the CMH. They can attend with a licensed paralegal or a lawyer representing them. No witnesses are permitted at the CMH.

If the issues raised in the application cannot be settled the Hearing Officer who conducts the hearing may draw the parties attention to issues to be considered so that if there is a full hearing on the merits it can held expeditiously and fairly.

Some issues that may be raised are:

  • facts and evidence that may be agreed upon;
  • the dates by which any steps in the proceeding are to be taken or begun;
  • the clarification and simplification of issues in dispute;
  • disclosure and production of materials arguably relevant to the issues in dispute;
  • the number and identity of witnesses each party intends to call, and discussion of whether all proposed witnesses are necessary; and
  • the amount of time necessary to complete the hearing.

If there is no settlement, the Hearing Officer will issue an interim order. It is very important that your licensed paralegal requests certain orders that will benefit you. Orders sought should focus on having a fair, just, and expeditious hearing, or an expedition settlement of the disputes.

Reasons why a CMH can be the most important hearing in a Landlord and Tenant Board case are:

The CMH is the place you and your paralegal can learn more about the application. Discussions at a CMH usually include specifics of matters only touched upon in the application(s). A good legal representative will use what they hear at a CMH to help them in preparation for a full hearing on the merits.

Listen to the opposing side. Try to see the case from their point of view. A good legal representative tries to see the case from their opponent’s point of view. This helps them better assess the strengths and weaknesses of their client’s case.

This is the only hearing where you have a chance early in a proceeding to try to settle the case, before you spend more time and money preparing for a full hearing on the merits.

The CMH Hearing Officer may give general information on how the Residential Tenancies Act applies to the application. The Hearing Officer cannot give legal advice.

The winning party after a full hearing before a Board Member needs to be aware that the losing party may file a Request to Review with the LTB or an appeal with the Divisional Court. An appeal is outside the scope of services a licensed paralegal is trained and permitted to represent. It can be very expensive to hire a lawyer to fight an appeal.

Full hearings on the merits can take an hour, several hours, or days depending on the complexity of the application, the number of witnesses, and the amount of relevant documents.  You may have to wait around all day just for your hearing to start. Full Hearings are very stressful. A good settlement allows both parties to walk away a little unhappy.

The winning party represented by a lawyer or a paralegal at a full hearing on the merits usually does not get any representation costs awarded to them.

Costs, other than filing fees are generally only awarded when a party’s conduct in a hearing was unreasonable. See LTB Interpretation Guideline 3 for more information.  

It is difficult to get witnesses to voluntarily attend a full hearing. People may say they will be witnesses now, but they might change closer to a hearing. You can request that the board issue a Summons to force a witness to attend and testify. That will cost time and money.

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Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Which is the Proper Venue to File my Ontario Landlord and Tenant Dispute?

Starting September 1, 2021, applications against a former tenant for non-payment of rent, non-payment of utilities, damages to the apartment, and for bad conduct of the tenant causing monetary losses can now be filed in the Landlord and Tenant Board.

The Residential Tenancies Act outlines which landlord and tenant disputes fall under the jurisdiction of the Landlord and Tenant Board (LTB).

The LTB has the exclusive jurisdiction to decide such matters. Any issues not covered in the Residential Tenancies Act (RTA) as being in the LTB jurisdiction must be decided by a different appropriate court. While most landlord and tenant disputes are resolved by the LTB, depending upon various circumstances, not all are. Therefore, it is critical to know which court or tribunal is the correct venue in which to initiate your claim.

If you file in the wrong venue, the court or board will dismiss your case if they do not have the jurisdiction to resolve it.

By the time you are made aware that you have filed in the wrong venue, the timeframe to submit an application to the proper venue may have expired and you will be left with no legal recourse.

Below is an example illustrating how different circumstances affect the determination of the correct venue to apply to if a landlord is submitting an application for rent owed or damages to an apartment.

If the application is initiated while the tenant is living in the rented property, it must be done though the Landlord and Tenant Board.

Starting September 1, 2021, applications against a former tenant for non-payment of rent, non-payment of utilities, damages to the apartment, and for bad conduct of the tenant causing monetary losses can now be filed in the Landlord and Tenant Board.

Note that for any landlord or tenant claim exceeding $35,000 (the current monetary jurisdiction of both the Landlord and Tenant Board and the Small Claims Court,) the proper venue for the application is the Superior Court of Justice.

In addition, if you choose to have legal representation by a paralegal, they can represent you in a LTB or Small Claims Court case but not in a Superior Court case. You would need a lawyer in that venue.

Determining whether to sue in the Landlord and Tenant Board or in Small Claims Court is often not as simple as it first appears to be.

If you are contemplating self-representing yourself, you risk having your case dismissed if you submit your application to the wrong court or board. But, if you hire a licensed paralegal or a lawyer, and they incorrectly advise you to sue in a court or tribunal that does not have the jurisdiction to hear your case, you are protected from their negligence by the errors and omissions insurance they are required to carry. (See www.lso.ca  for more information.)

Note, also, that only a small number of lawyers in private practice deal with landlord and tenant matters on a regular basis. So, many are quite inexperienced with LTB cases.

Hire an experienced, licensed paralegal to increase your odds of obtaining a successful outcome, and to save you time, money and frustration.

I list a number of cases below pertaining to landlord and tenant disputes that were dismissed for being in the wrong jurisdiction.

In particular, 3 significant court decisions can assist a party in determining the proper venue to file a claim: [1] Mackie, [2] Efrach.) and [3] Kiselman.

[1] Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801 (CanLII) http://canlii.ca/t/2bf5v

The tenants residing in a community housing project brought a class action claim against the corporation to compel it to carry out repairs needed on the premises. 

Even though the LTB has the jurisdiction to hear disputes regarding a landlord’s obligation to maintain the premises in a proper state of repair, the tenants attempted to characterize the repair claims more broadly as negligence and breaches of the Ontario Human Rights Code and the Charter of Rights and Freedoms.

They took their claim to the Superior Court of Justice which determined that:

“It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiffs’ repair claims. Further, it is my opinion that characterizing the claims as a negligence claim or as an Ontario Human Rights Code or Charter claim does not infuse the Superior Court with jurisdiction. From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the Plaintiffs’ claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board.”

[2] Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII), http://canlii.ca/t/gg2dv   

The apartment next door to a tenant was left unlocked. The tenant alleged that someone entered through the open door, climbed over the balcony, and broke into his apartment. He sued his landlord for negligence in Small Claims Court.

The court determined that the tenant’s claim was filed in the wrong forum, and so dismissed it. The tenant appealed to the Divisional Court. The court used the test of the essential character of the claim as done in Mackie.  The Divisional Court agreed with the Small Claims Court that the essential character of the claim (lack of maintenance) fell within the exclusive jurisdiction of the LTB, and thus dismissed the appeal.

[3] Kiselman v. Klerer, 2019 ONSC 6668 (CanLII) http://canlii.ca/t/j3g30  

Eleven months after moving out, a landlord sued his former tenant, in Small Claims Court, for rent owed, and undue damages to the apartment. The tenant made a motion to dismiss the action, arguing that the LTB had exclusive jurisdiction to deal with these issues.

The Small Claims Court deputy judge dismissed the action stating:

“….the Residential Tenancy Board is the forum to go to in a landlord/tenant dispute.  They have the expertise and the protocol to deal with these matters.”

The RTA, in sections 87(1)(b) and 89(1), clearly states that the LTB loses jurisdiction to hear a landlord’s claim for unpaid rent and undue damages after a tenant has vacated the apartment.

The landlord appealed to the Divisional Court. The Divisional Court, unbelievably, agreed with the deputy judge that the Small Claims Court lacked the jurisdiction to hear the case.

On November 19, 2019, the Divisional Court released the Kiselman decision. This decision will, for the foreseeable future, make it difficult for a landlord to determine the proper venue in which to sue a former tenant after they have vacated the apartment.

Also, since this case was decided by the Divisional Court, it is binding on Small Claims Court deputy judges and Landlord and Tenant Board members to follow the ruling of the Divisional Court.

So, a landlord suing a tenant after they have vacated the premises, needs an experienced, paralegal familiar with case law to persuade the court or board that they are not required to follow the Kiselman decision.

[4] Fei Hu v Lee, 2016 CanLII 78566 (ON SCSM), http://canlii.ca/t/gvmv3

Two weeks before the termination of a tenancy, a tenant and landlord made an oral agreement to split the cost of replacing flooring damaged by the tenant’s dog. It was agreed that the landlord would repay their part of the repair cost shortly after the end of the tenancy.

The tenancy ended on April 30, 2015.The former landlord found a cheque they had received from the tenant post-dated for February 2015. On May 4, 2015, they deposited that cheque.

The tenant sued the landlord in Small Claims Court for theft; for conversion of funds that took place after the tenancy ended, and for the money owed for the split repair costs.

The Small Claims Court considered whether the cashing of the cheque could be characterized as an illegal retention of money under section 135(1) of the RTA.

The court determined that section 135(1) would apply only if the cheque had been deposited during the tenancy. Since the transaction took place after the tenancy had ended, the LTB did not have exclusive jurisdiction to decide the case (The deposited cheque was later revealed to be an erroneous duplicate payment cheque for February.)

In regards to splitting the cost of the floor repair, even though the agreement was made during the tenancy, the landlord’s obligation to pay did not commence until after the termination of the tenancy.

Given the circumstances in the case, and since the court was not aware of any application the former tenant could make to the LTB, it was determined that the Small Claims Court retained jurisdiction.

 [5] Fraser v. Beach, 2005 CanLII 14309 (ON CA) http://canlii.ca/t/1k8v3

The neighbors of an illegal rooming house, by way of an injunction, sought the eviction of the tenants. They made an application in the Superior Court of Justice. The Superior Court granted the injunction and ordered the eviction of the tenants.

The tenants appealed to the Ontario Court of Appeal. The Court of Appeal found the Superior Court made an error granting an eviction by way of an injunction. It set aside the eviction order finding that the authority to evict is exclusive to the LTB.

[6] Spirleanu v. Transglobe Property Management Service Ltd., 2015 ONCA 187 (CanLII), http://canlii.ca/t/ggqqr

Following an LTB eviction order, a tenant’s personal belongings were discarded.

The tenant claimed that the landlord should be liable for the wrongful disposal of his property and took his claim to the Small Claims Court and lost.

He then went before the Superior Court of Justice to re-litigate whether his property was wrongfully disposed of by the landlord.

The Ontario Court of Appeal found that, under section 41 of the RTA, a former tenant is permitted to sue at the LTB for the wrongful disposal of their belongings after an eviction.

Therefore, the jurisdiction of the civil courts was ousted.

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From the preceding examples presented, one can see that suing in the correct court or tribunal is often not easy to determine.

You need a Landlord and Tenant Board expert, an experienced, licensed Ontario paralegal or lawyer, to determine the proper venue to bring your claim. These are just some of the cases your paralegal or lawyer should consider to prevent your claim from being dismissed.

* This blog is not intended for self-represented landlords or tenants to determine the proper court or board to bring a claim.

Paralegal Representation

Every day I receive calls from landlords wanting to hire me for LTB matters.

 If you need to hire an experienced, licensed paralegal contact me:

Marshall Yarmus

Civil Litigations

(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/