At the start of an LTB hearing
session, the board member will highly recommend that the opposing parties
volunteer to meet with a trained, impartial mediator, to help them reach a
settlement agreement. Even though the word “settle” implies accepting
something that is not the best, in a landlord and tenant dispute, a settlement
may be the best option for resolving the dispute. Sometimes, it is the only
To avoid an eviction order being
granted in a hearing, a tenant may be willing to attempt a settlement through mediation.
The landlord and
tenant can create a conditional agreement where the tenant agrees to meet a
condition, or else be evicted.
For example, if the Notice of Termination alleges that the tenant, contrary to the lease agreement, smokes in the apartment, the tenant can consent to an agreement containing the condition that, for the next year, they will not, nor will they allow anyone else to smoke in the apartment, or else be evicted.
A settlement agreement can be made legally enforceable by the Consent Order of a Board Member, if it contains a condition that relates to the Notice of Termination served on the tenant. The order must state that the condition is subject to section 78 of the Residential Tenancies Act.
In mediation, the landlord and
tenant can agree to discuss:
issue in the tenancy, and not just those in the current application,
that are contrary to the Residential Tenancies Act, that, the RTA does not
permit the board member to impose
that, although legal, the RTA does not permit the board member to enforce
The only restrictions that the
parties must follow are:
rent increase more than 3% per annum above the permitted annual guideline
increase is not permitted.
discussed in the mediation is CONFIDENTIAL!
In a hearing, when making a
decision, the board member can consider:
- only the issues contained in the application and/or Notice of Termination. (Exception: in a non-payment of rent application, the tenant’s issues can be added. Explained in more detail later)
- only the terms that comply with the RTA
- only the remedies that the law allows the LTB to impose and enforce.
Since a landlord and tenant can
create terms and remedies in their agreement that are broader than those the
board member has the power to impose or enforce, this gives them a better
chance of creating a win-win scenario for both parties.
If the parties cannot come to an
agreement in mediation, their hearing will not be cancelled. In the hearing,
you are not permitted to share anything discussed in the mediation with the
Reasons Why You Should Seriously
Consider Doing a Settlement
Attempting a settlement can save
you from the risks that going into a hearing exposes you to AND it can give you
advantages that a hearing cannot.
Risk of the Hearing Not Being
Called or Completed on the Scheduled Date
The order in which the cases are
called is at the discretion of the board member. Generally, it is withdrawals,
settlements, adjournments, and then hearings where only one party is present,
and then hearings where both parties are present.
Since some applications take
hours to resolve, there is a risk that your case might not get called or
not be completed on that hearing date.
Currently, it will take months to
get another hearing date for your case. The time and expense of this risk might
not be worth it.
Risk of Dismissal Due to a
In the hearing, the board member
will review the Notice of Termination. If it contains a critical error, it is
mandatory for the board member to declare the Notice of Termination invalid and
dismiss the application. A simple mistake could become very costly!
Critical errors found on notices
improper representative (e.g. real estate agent, a property manager that deals
with multiple properties.)
all tenants are listed
all landlords are listed
identification of the rental apartment (e.g. unit number, basement
wrong rental period
wrong termination date
details describing the problem that triggered the application, and specific
date and time it occurred
amount of rent owing
method used to serve the Notice of Termination
to pay any mandatory compensation by the specified date
You should consider consulting an
experienced paralegal to prepare your Notice of Termination and application.
If you have already submitted a
Notice of Termination that contains a critical error to the LTB, other than
withdrawing your application and starting over again, a settlement is the only
option. Hiring a paralegal to represent you in a settlement negotiation may
save your application from a mandatory dismissal in a hearing. Board members
usually ignore a flawed Notice of Termination when they are told the parties
have reached an agreement.
Risk of Dismissal on Every
Eviction Application Due to the Landlord Violating the Tenant’s Rights
It is mandatory that the board
member deny granting the eviction if the tenant can prove that:
the landlord is in serious breach
the landlord’s responsibilities under the RTA, (e.g. seriously failed to repair
or maintain the property)
a term of the lease or tenancy agreement,
the landlord filed for an
eviction order because the tenant:
to a governmental authority about the landlord’s violation of a law dealing
with health, safety, housing or maintenance standards
or is attempted to secure or enforce their legal rights
children occupying the rental unit. (Occupation by children is not
organizing or is a member of a tenants association
If a landlord believes that the
tenant might raise any of these issues, they should attempt to reach a
settlement rather than risk a mandatory dismissal of their application in
Risk of Dismissal Due to
If you lack enough documentary
evidence, such as emails, letters, photos, receipts and bank statements or all
of the witnesses necessary to testify before the board to prove your case, it
will get dismissed in the hearing.
Risk of Eviction Not Being
The conduct of a tenant / their
occupiers / guests:
to the property
with the reasonable enjoyment of others on the premises
late payment of rent
of rent etc.
may lead to an eviction
application being brought against the tenant.
For a landlord who wants to
maintain the tenant, it makes sense to attempt to reach a settlement agreement.
Often, when the landlord and tenant develop an agreement together, they work
out an agreement that would be more to their liking than the one the board
member may impose on them.
In a hearing, the board member
must be as fair as possible to both parties in making a decision. Rather than
grant an immediate eviction, the board member may instead issue a conditional
eviction order to give the tenant a chance to avoid getting evicted.
The tenant will be ordered to
stop the specific, undesired conduct, mentioned in the Notice of
Termination, for one year, or else be evicted. If there was willful or
negligent damage to the apartment, the board member may also order financial
amends be made for that conduct.
For a persistent late and/or
incomplete payment eviction application, the tenant must immediately become
up-to-date with the rent, and continue to pay the total rent on-time each
month, or else be evicted.
For a non-payment of rent
eviction application, the board member may issue a pay-and-stay conditional
eviction order. If the tenant pays the rent owed according to a payment plan
that the board member imposes, they can stay on as a tenant. The tenant
must continue to pay the total rent on-time each month, but they will be
given 11 days, or more, to pay the past rent owed, and or else be
If the tenant succeeds in
complying with all of the conditional eviction order, for one year, they cannot
be evicted under the current application. (Another incident of poor conduct,
after the one year period would require another application process.)
Risk of Tenant Bringing An
Application in a Non-payment Eviction
Under Section 82 of the RTA, in a hearing, a tenant is allowed to raise issues against the landlord. They are not required to submit an application or pay a fee to the LTB to raise their issues. A tenant can give the landlord as little as 5 days notice their intention to raise issues.
Their allegations may include,
but are not limited to: the collection
of an illegal deposit or fee, an illegal rent increase, illegal entry,
harassment, interfering with the tenant’s reasonable enjoyment of the unit, and
maintenance or repair issues.
Many of these allegations can
lead to the landlord being ordered to pay money to the tenant, which can be
used to offset the rent owing, and may also require the application to be
Advantage of Ability to Offer
Incentives to Vacate
When a tenant owes money for
unpaid rent or undue property damage, a settlement negotiation may persuade the
tenant to willingly vacate the apartment.
Rather than risk an eviction not being granted in a hearing, a landlord may
offer to waive all, or part, of, the money owed to persuade the tenant to
vacate. The risk involved in keeping a troublesome tenant often is too great to
not consider this advantageous option.
Advantage of Ability to Add Other
Issues to the Application
If at the time that the application
was filed, issues were missed or if new issues developed after it was filed,
the opposing parties can agree in a settlement negotiation to settle all of the
issues that both the landlord and the tenant have with the tenancy.
This opportunity, for either
party to have all of their issues dealt with,
would not be possible in the limited forum of a hearing, since the only
issues the board member can consider there are those raised in the current
application. A settlement would erase the cost and frustration of fighting future
Advantage of Decreased Chance of
a Successful Outcome getting Reversed
A settlement has a much lower chance of being challenged than a hearing decision in your favour does. Even if you receive an order in your favour, the opposing side may attempt to get the outcome reversed by filing a Request for Review with the LTB and/or file an appeal with the Divisional Court. The order you received will be not permitted to be carried out until the case is reviewed or resolved.
If the case is taken to
Divisional Court, you will wait months, even a year to get a hearing date. Also,
you will need a lawyer to represent you in this lengthy legal process.
If a landlord does not attempt a settlement negotiation, they will face risks in a hearing that could lead to a dismissal of their application, possible penalties being brought against them, a less appealing payment plan imposed upon them by the board member, and the costly possibility of a challenge to their favorable outcome.
Rather than wasting time waiting for a hearing to get the same result: the end of offensive behaviour, on-time rent payments, repayment of rent owed, financial amends for damages, it is worth trying to come to a settlement agreement.
Settlement Agreements and Consent
If the landlord and tenant come
to a consent agreement:
mediator will write out a Mediated Settlement Agreement, and have the parties
sign it and give each a copy of the agreement. (The LTB will not keep a copy.)
mediator will take the agreement and the parties to the hearing room. The board
member, if needed, will interrupt a lengthy hearing in session to write out a
Things to note about a Consent
board member is allowed to include in the Consent Order only the terms and
conditions in the agreement which are permitted by the Residential Tenancies Act.
the terms or conditions that relate to the Notice of Termination served
will be enforceable.
terms or conditions that are not part of the current Notice of Termination
will not be enforceable; if the tenant does not meet these terms or conditions,
there is no legal penalty that the LTB can enforce for their failure to do so.
An example of a condition that is
allowed on a Consent Order, but is not enforceable: “When the tenant
vacates, they will leave the apartment in a broom-swept state.” This
condition is not forbidden by the RTA, so it is allowed to be included in a
Consent Order. However, since it is not a condition that a board member is
permitted to impose, this condition is not legally enforceable.
An example of a term that is not
allowed on a Consent Order: “The tenant will be responsible for paying 15%
of the cost of maintenance of the apartment.” Since in the RTA, the
landlord is always responsible for maintenance of the apartment, the board
member would not be permitted to include that term in the Consent Order.
If a tenant breaches a Mediated Settlement Agreement or Consent Order by doing the same prohibited behavior within the next 12 months, the landlord can, within 30 days of that breach, without notice to the tenant, return to the Landlord and Tenant Board and complete a Application to End a Tenancy and Evict a Tenant – Tenant Failed to Meet Conditions of a Settlement or Order (L4-B form). In most cases, the board will issue an eviction order without holding a hearing.
Having an experienced paralegal
- the law, the RTA
- the case law the board member must follow,
- the wider options you have in a settlement versus the limited options in a hearing,
- the risks you may face in a hearing
- how to skillfully create a well-crafted settlement agreement that can be a win-win situation for both parties
- how to get a legally enforced consent order to protect you and
will save you time and expense, stress and frustration.
Every day I receive calls from landlords wanting to hire me for LTB representation and advice. I have 25 years of experience as a paralegal.
If you need to hire an experienced, paralegal, contact me:
(416) 229-1479 or (343) 600-7722