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4. General Application Procedures

(a) Overview

The "Application" is the primary form of proceeding before the Board. Various types of applications are discussed throughout the program: tenant's rights, [see Ch.3, s.5], termination and eviction [generally see Ch.4, s.4 and specifically Chapters 5-8], and rent control [Chapters 11 and 12].

The general rules that apply to all these various types of applications are explained here.

(b) Board Discretion Regarding Procedure

As noted in s.1, the Statutory Powers Procedures Act (SPPA) [SPPA s.16.1, 23, 25.1] authorizes the tribunals that it governs (which includes the L&T Board) to make "rules" regarding both specific and general procedural issues. The LTB has a general rule regarding its discretionary role in application procedures [SJTO A4.2]:

A4.2
The tribunal may vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.

Typically this discretion would only be used to organize complex proceedings, or to grant adjournments.

(c) French and Sign Language Services

Individuals may participate in LTB tribunal proceedings in English, French, American Sign Language (ASL) or Quebec Sign Language (QSL)" [SJTO A6.2], and they may provide written materials in either English or French [SJTO A6.1].

Parties may change their language of participation from French/English but must advise the LTB immediately [R1.10]. Where a bilingal member or dispute resolution officer (DRO) is not available due to late notice, "absent exceptional circumstances an interpreter will be provided and the hearing will proceed" [R1.10-11, SJTO A6.3].

(d) Issuance and Service of Application and Related Documents

. Initiation of Application and Required Documentation

Applications before the L&T Board are commenced by attending the local Board office with at least one completed copy of the applicable Application form, any required supporting documentation and the applicable fee. If they are in order the Board will "issue" the application, open a file, and provide the applicant with additional information regarding their service duties. A Notice of Hearing will also be issued, either at that time or later, depending on the nature of the application (different types of applications are treated with different priorities).

New online LTB E-Filing is available for some common Applications.

Applications must use forms approved (and issued) by the Board [Act s.185(1)], all of which are available on the Board's website. All applications must be signed by the applicant personally, or by their authorized representative [see s.5 "Legal Representation", below]. Where one or more tenants are joining together in one Application all of them, or their collective representative, must sign the application [Act s.186(1,2)].

The various different types of applications require specific accompanying documentation. For example, all applications to terminate and evict based on a landlord's Notice of Termination must be accompanied by copies of the related Notice of Termination, and (when performed) a certificate of service confirming that the Notice of Termination has been served on the tenant [Reg s.53(1)]. For required accompanying documentation for other types of applications, see the section discussing the particular type of application you are involved with, or review RTA General Regulation s.53.

Application and related Board fees are set out in the Landlord and Tenant Board Fees Schedule.

. Service of the Notice of Application and Related Materials

While the default rule is now that the Board shall perform service of application and related materials on the responding parties, the Board can order that the applicant perform such service (and later file a certificate of service) in the following circumstances [RTA 188-189, R5.1-5.2]:

• the application is for an above guideline rent increase;
  
  
• the application is to vary the amount of a rent reduction;
  
  
• the application is an amended application (ie. where the respondent has already been served with the original application);
  
  
• the LTB has granted a party’s request to shorten the time for service of the application, motion or request;
  
  
• the issues in dispute on the application, motion or request are time sensitive;
  
  
• the Board is for some reason unable to send the application, motion or request to the other parties; and
  
  
• broadly, where the Board determines that such an order is fair, just and expeditious.
  
  How this last category is applied is a crucial issue. The service of Applications by parties who have a conflict of interest in performing this essential task has long been a controversial issue. In my opinion, all service should be performed by the Board.

Where the applicant must perform service, how to do it is explained in s.8 "Service and Filing of Documents", below.

If required to perform service of an Application and Notice of Hearing, and once performed, the applicant is then required to confirm proper document service with the Board by filing a properly completed 'certificate of service' "within five days after the application is served unless the LTB amends the time for filing."[Act s.189(3); R5.14].

Certificate of Service
. Timelines for Service of Application and Materials Where Service Performed by Applicant

The following timelines apply to service of the application, motions and requests and related materials, by type and circumstance of application (counted by days before the scheduled hearing) [Rule 5.3-5.13]:

• Early Termination/Evictions
  
  An application to end the tenancy and evict for any of the grounds listed below:
  
  . impairing safety,
  . illegal act involving drugs,
  . wilful damage,
  . interference with reasonable enjoyment in small building where landlord lives in the building, or
  . failure to vacate superintendent unit,
  
  must be served at least 5 days before the hearing date set in the Notice of Hearing;
  
  
• Illegal Lockout
  
  A tenant's application alleging illegal lockout must be served at least 48 hours before the hearing date set in the Notice of Hearing;
  
  
• Denial of Access to Possessions
  
  A tenant's application alleging denial of access to possessions after eviction by the Sheriff must be served at least 5 days before the hearing date set in the Notice of Hearing;
  
  
• Where Written Hearing
  
  Where the LTB issues a notice of written hearing for an:
  
  . application to vary the amount of a rent reduction;
  . application for a rent reduction for municipal taxes;
  . application for an above guideline rent increase due to increased municipal taxes or utilities; or
  . any other application where the LTB directs a written hearing
  
  the applicant must serve a copy of the application and the notice of written hearing on each respondent no later than 20 days after the LTB issues the notice of written hearing;
  
  
• Various Applications on 30-day Notice
  
  An application for any of the grounds listed below:
  
  . above guideline rent increase which will proceed as an oral hearing,
  . transfer of a Care Home tenant, or
  . varying the amount of a rent reduction
  
  must be served at least 30 days before hearing date set in the Notice of Hearing;
  
  
• Other Applications
  
  Where the LTB directs service of any other application it must be served at least 10 days before the hearing date set in the Notice of Hearing;
  
  
• Where Service on Municipality
  
  Where a landlord has filed an application under section 226 for a review of a work order issued by an inspector appointed by a local municipality, the landlord must serve the local municipality with a copy of the application and Notice of Hearing at least 10 days before the hearing date set in the Notice of Hearing;
  
  
• Fast Motions
  
  A motion by a:
  
  . tenant asking to set aside an ex parte order;
  . tenant asking to void an eviction order for arrears;
  . landlord asking to set aside an order voiding an eviction; or,
  . landlord asking to increase rent above the guideline because repairs, replacements or other work have been completed
  
  must be served at least 48 hours before the time set in the Notice of Hearing;
  
  
• Other Motions
  
  All other motions must be served as soon as possible and, in any event, at least 10 days before the hearing date set in the Notice of Hearing;
  
  
• Requests re Mediated Settlement or Consent Order
  
  A request to re-open a mediated settlement or a consent order issued under s. 206.1 of the RTA must be served at least 5 days before the hearing date set in the Notice of Hearing;
  
  
• Other Requests
  
  Unless the LTB orders otherwise, service of all other Requests must be done as soon as possible and, in any event at least 10 days before the hearing date set in the Notice of Hearing.

Where timely service is not made the Board may either [Rule 5.15]:

• proceed with the application if there is no prejudice to any party;
  
• adjourn the hearing; or
  
• dismiss the application, motion or request.

(e) Combination, Joinder and Severance

. Overview

"Combination, joinder and severance" relate to situations of multiple applicants or respondents. The Board has discretion to combine and to sever (ie. to separate jointly-filed) applications - and to join parties, as it sees fit.

. Combination and Joinder

One or more tenants may join together in one Application filing - although in such a case all tenants (or their representative/s) must sign the application personally [Act s.186(1)(2)].

Landlords may combine several different types of applications respecting one tenant into one Application filing, except for rent increase applications [Act s.186(3)].

The Board has a general authority to combine two or more applications "if the Board believes it would be fair to determine the issues raised by them together" ("joinder") [Act s.198(1)].

. Severance

Where applications have been combined on filing, the Board may order them severed if "the Board believes it would be appropriate to deal separately with different matters included in the application" [Act s.198(2), R1.6]. In such a situation, it shall deal with "each severed part dealt with as though it were a separate application under this Act" [Act s.199].

The Board's Rule governing procedures in severance situations provides:

18.1
When an application is created as the result of severing another application, any procedural requirements or issues that were resolved in the original application continue to apply to the severed application, unless the LTB decides otherwise.

(f) Amendment of Applications

. Overview

What constitutes "amending" an application is not specified in the legislation, but logically it includes changes to any aspects of the application contents submitted by the applicant, including: parties, remedy sought, fact allegations, monetary amounts, etc. This interpretation is consistent with similar practices in civil litigation.

Both the Board and parties may initiate such amendments, though the procedures vary.

. Party-Initiated Amendments

Applicants may request that an application be amended [Act s.200(1)]. Such requests are governed by LTB R15:

Rule 15: Amending Applications

. Board-Initiated Amendments

Along with it's unconventionally "intrusive" evidence-gathering and evidence -compelling authority [see Ch.14, s.5(f): "Hearings, Orders and Enforcement: Evidence: Board Initiative to Move to Amend Applications"], the Board - "on its own motion" [see s.13, below] may also amend applications on its own initiative "before, during or after a hearing" [Act s.201(1)(f)].

Note:
While this authority may be exercised "before, during or after" a hearing, it will not be read to extend to the period after a final order is issued. At that point the Board becomes "functus", and loses jurisdiction.

The legislative authority for this function is located in close association with the provisions establishing the Board's aggressive evidence-gathering powers, suggesting that it is intended to be used when new Board-generated evidence dictates the need for amendments.

Such motion must be served on all the parties, and may be granted "if the Board considers it appropriate to do so and if amending the application would not be unfair to any party" [Act s.201(1)(f)]. In such a motion, the Board must disclose to the parties "any relevant information obtained by the Board", and "give() them an opportunity to explain or refute it" [Act s.201(2)].

(g) Withdrawal of Applications

Applications may generally be withdrawn by the applicant at any time, although the consent of the Board is required for such withdrawal where [Act s.200(2-4), R17]:

• the hearing has commenced; or
  
  
• the application was by the tenant for a determination that "the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant's occupancy of the rental unit" pursuant to [Act s.29(1)4]. [see Ch.3, s.5: "Tenant Rights: Tenant Rights Applications".

Rule 17: Withdrawing an Application
5. Legal Representation

(a) Overview

Applicants may act through representing paralegals and lawyers. As well, some persons who have traditionally provided unpaid legal services with respect to residential L&T matters ('helpers' such as family members, friends and neighbours) may continue to do so: By-Law of the Law Society of Upper Canada [see By-Law 4, s.30]. Any of these may sign Applications [Act s.185(2)] and Notices of Termination [Act s.43(1)] on behalf of a party, although if the party has given the representative written authorization to act for them, the Board may require that to be filed with it [Act s.185(2)].

Additionally, such paid representatives may have cost awards made against them personally if their conduct has been particularly irresponsible or egregious [see Ch.14, s.6(d): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Order: Orders: Costs"]; Interpretation Guideline #3.

Case Note: Thomson v Sisters of St. Joseph (Div Ct, 2010)

This is an interesting struggle by a tenant and his unlicensed representatives (ie. not a lawyer or paralegal). At the Board level, extended proceedings against the tenant for non-payment of rent were disputed by him under the (vindicated) argument that past Notices of Rent Increase were illegal and thus void, raising directly the issue of 'just what was the rent due anyway'.

The landlord sought by motion to remove the tenant's unlicensed representative under SPPA s.23(3). At the hearing of that motion the tenant attended with a new unauthorized representative, and the LL sought on the spot to amend their motion to exclude that representative, which the Board did. As a result of that the tenant asked for an adjournment to find new counsel, which was denied. The tenant then walked out of the hearing and, absent any contrary evidence, the LL's application to evict was granted.

The appeal court held that the refusal to grant to adjournment was a denial of natural justice and granted the appeal, ordering a new hearing on all issues.

(b) Contingency Fees by Paralegals

A "contingency fee" is a fee charged by a representative based on the amount "recovered, gained or saved" through the efforts of the representative.

Paralegals are restricted in the percentage of contingency fee they may charge or take to "10 per cent of the amount that has been or may be recovered, gained or saved, in whole or in part, over a one-year period through the efforts of the agent" [Act s.214(1); Reg s.60]. This restriction applies both to representation before the Board and to 'assistance' respecting any matter arising under the RTA.

Paralegals should be aware that any agreement which purports to violate this limit is void (apparently generally, not just with respect to the illegal part of the fee) [Act s.214(2)]. Any fee recoveries in such situations may have grounded in restitution.

(c) Contingency Fees by Lawyers

The above restrictions do not apply to lawyers, who are governed by the Law Society in respect of contingency fees. It is beyond the scope of this Legal Guide to explain contingency fees chargeable by lawyers.


6. Payments to the Board

(a) Overview

There are several residential L&T situations where the ability to pay money (usually rent) to the administrative Board "in trust" is useful. These provisions are only available during, and in relation to, a current application involving the payor (the one paying the money) as a party.

(b) Non-payment of Rent Terminations

Extensive procedures for just such payments are an integral part of the specialized "catch-up payment" provisions which allow tenants to preserve their tenancies in non-payment of rent termination situations by late payment of rent arrears and additional accrued charges [see Ch.7: "Non-Payment of Rent Terminations" and Act s.74]. Such "catch-up payments" may be made anytime before eviction orders are executed.

Extensive Board Rules addressing such payments are linked here [these are a must-read for anyone involved in a non-payment of rent termination application] [R20.1-20.12]:

R20.1-20.8: Paying Money Into and Out of the Board
(c) Rent Payments to Board During Tenant Repair Application

On the request of the applicant/tenant, the Board may permit a tenant who has made a "Tenant's Right" Application regarding repair of the rental unit [Ch.3, s.5; Act s.29(1)1] to pay their rent to the Board in trust where it "considers it appropriate to do so", pending resolution of the repair application [Act s.195(1)(b),(3)].

Form: Request to Pay Rent to the Board on a Tenant Application About Maintenance
Such Board-authorized payments, to the extent of their amount, are deemed to satisfy the tenant's legal duty to pay rent [Act s.195(5)].

Such requests may be made before or at the hearing of the application. Board R20.9-20.12 [linked in the R20 link in (b) above] addresses procedures for such requests.

Factors and circumstances which the Board may assess in any decision respecting the payment of money into the Board are set out in Interpretation Guideline #2: "Payment into the Board", linked here:

Interpretation Guideline 2: Payment Into the Board
(d) Other Payments

Generally, the Board may "require" any respondent to an application "to pay a specified sum into the Board within a specified time" to the Board in trust where it "considers it appropriate to do so", pending resolution of the application before it [Act s.195(1)(a),(3)]. This provision appears designed to address situations where a Board decision will be delayed for a while. The disposition of the money will typically be part of the final order of the Board at the end of the case.

Upon failure of the respondent to make payment as so required by the Board, the "Board may refuse to consider the evidence and submissions of the respondent".[Act s.195(4)]. This provision can be expected to be applied where tenants are seeking to 'set off' (deduct) the speculative value of tenant's right claims against rent arrears owing.

Factors and circumstances which the Board may assess in any decision respecting the payment of money into the Board are set out in Interpretation Guideline #2: "Payment into the Board", linked above.

It's not clear in the Rules, but it seems logical to apply R20.10-20.12 [linked in the R20 link in (b) above] to procedures for such such 'other' requests.

(e) Payment Procedures

The Board may establish bank accounts for the purpose of receiving and holding monies paid to it in trust [Reg s.57(1)]. Such monies shall bear interest at "the rate of 0.25 per cent per year, compounded semi-annually" [Act s.57(4)].


7. Forms, Fees and Documents

(a) Mandatory Form Use

Both "Notices of Termination" used between parties, and "Notices of Application" used to commence Applications to the Board, must be in the Board-issued and approved forms [Act s.43(1); 185(1)].

(b) Contents

Depending on the type of termination or application involved, there are various content requirements required by the RTA (explained throughout the program in relation to each of these various topics).

The Board is required to be somewhat forgiving to parties as to quality of the party-added "contents of forms, notices or documents" (ie. the completion of the "blanks" in Board-approved forms), which require only "substantial compliance" with the RTA requirements [Act s.212, SPPA s.28]. However it is a general principle of the common law tradition that "forfeiture" (such as termination) provisions are read strictly against the applicant, so landlords can expect to be treated less generously in this respect than tenants.

Further, parties should be careful not to place too much reliance on this 'forgiveness' provision where inadequate or incomplete filling out of the forms prejudices the interests of the other party. For instance, wherever a "cause" of termination is specified, it should be specified with sufficient detail to allow the tenant to know what is being alleged sufficiently to have a chance of refuting it.

(c) Email Filing and Service

Provision is made in the RTA for the use of electronic-form Application documents and forms, which may be "created, signed, filed, provided, issued, sent, received, stored, transferred, retained or otherwise dealt with" as the Rules allow [Act s.213]. In the past five years (writing at 2019) much advancement has been seen in email filing and service. Now several common applications may be made with the LTB's "e-file" service at it's website.

Applications and representatives authorization may be "signed" by the act of typing a party's named in the electronic documents [Reg 59(1)], and any additional documentation required may be mailed, faxed or otherwise delivered such that it is "received" by the Board within five days after the Application is electronically filed [Regs 59(1,2)].

The 2019 rules provide for several email procedures:

• service on a party (with exceptions below) "by email if the person or party receiving it has consented in writing to service by email." [R3.1], revocable on written notice [R3.4];
  
  
• email service must "include with the email the name and telephone number of a person to contact" [R3.6];
  
  
• consent to email service is not applicable for "notice to terminate a tenancy, a notice of hearing, a notice of motion, an application, or a request for review." [R3.5];
  
  
• email service is effective the same day of sending [R3.8];
  
  
• filing by email "where the document relates to an application, by email to the email address of the LTB Regional Office responsible for the region in which the residential complex referred to in the document is located" [R4.1];
  
  
• "(w)here the LTB permits an application to be e-filed, any related Notice of Termination and Certificate of Service must be uploaded at the time of filing using the LTB's e-filing portal: www.sjto.gov.on.ca/ltb/e-file" [R4.2];
  
  
• "(i)f the Notice of Termination and Certificate of Service cannot be uploaded at the same time as the application is e-filed, they must be emailed to the Regional Office responsible for the application within 5 calendar days of the e-filing. Failure to upload or to email these documents in time may result in administrative dismissal of the application" [R4.3];
  
  
• "(a)n application by a non-profit housing co-operative, and any document, other than the payment form, which relates to the application must be filed by email to
  co-opprocessingLTB@ontario.ca" [R4.4].
  
  
• "(w)hen filing documents by email the sender must include the following information [R4.5]:
  
  . the sender's name, address, telephone number, and email address; and
  . the name and telephone number of a person to contact in the event of problems receiving the email and/or attachments"; and
  
  
• "(t)he LTB will serve the Notice of Hearing together with an application, motion, or request and any relevant information sheets, on all parties unless the Rules or RTA require otherwise or the LTB exercises its discretion to order a party to serve. The LTB may serve an application or a Notice of Hearing by email in appropriate circumstances" [R5.1].

• DIRECT SERVICE
  
  Tenants, Subtenants or Occupants:
  
  . "hand to the person or to an apparently adult person in the rental unit or member unit";
  
  Landlords
  
  . "hand to an employee of the landlord with authority for the residential complex to which the document relates or to the manager [or co-ordinator of the non-profit housing co-operative exercising authority for the residential complex to which the document relates]"
  
  Direct service is deemed to be received the "day it was given to the person when delivered by hand" [R3.8].
  
  
• MAIL DROP
  
  . "(L)eaving it at the place where mail is ordinarily delivered to the person, sliding it under the door or putting it through a mail slot in the door of the rental unit or member unit as long as the person remains in possession of the rental unit or member unit" [or "placing it under the door of a non-profit housing co-operative's head office or business office];
  
  
• MAIL
  
  "(R)egular or registered mail using the address for service provided by the party". Mailed notices and documents are "deemed" received on the fifth day after mailing [Act s.191(3), R3.8].
  
  
• COURIER
  
  . "(C)ourier to party's address or, the case of a non-profit housing co-operative, to its head office or business office". Courier delivery is deemed to be received the "day after it was given to the courier ..., or if that day is a holiday, the next day that is not a holiday" [R3.8].
  
  
• FAX
  
  . "(B)y fax to the party or to a non-profit housing co-operative's head office or business office but only if the document is less than 20 pages or, if it is longer, with the consent of the person receiving it". Faxes are deemed to be received on the "date on the fax confirmation receipt" [R3.8].
  
  
• EMAIL
  
  . "(B)y email if the person or party receiving it has consented in writing to service by email."
  
  This consent is revocable on written notice [R3.4]. Email service must "include with the email the name and telephone number of a person to contact" [R3.6]. Consent to email service is not applicable for "notice to terminate a tenancy, a notice of hearing, a notice of motion, an application, or a request for review" [R3.5]. Email service is deemed to be received the "day it was sent when sent by email" [R3.8].
  
  
• BOARD-AUTHORIZED ALTERNATIVE SERVICE
  
  . "A party may ask the LTB to permit an alternative method of service including service on the party's representative. The request may be made in writing prior to the hearing or at the hearing" [R3.3].

• names of the parties to the application;
  
• LTB file number or numbers where available; and
  
• the name and contact information of the person filing the document and, where applicable, the name of his or her representative and the representative's contact information".

• DIRECT FILING
  
  . "(B)y delivering it in person to any LTB Regional Office or to a ServiceOntario Centre that accepts service on behalf of the LTB".
  LTB Office Locations
  
  ServiceOntario Locations
  Direct filing is deemed to be received the "day it is filed in person at any LTB Regional Office or ServiceOntario Centre that accepts service on behalf of the LTB" [R4.6].
  
  
• MAIL, COURIER OR FAX
  
  . "(B)y mail, courier or fax to the LTB Regional Office responsible for the area in which the residential complex referred to in the document is located" [R4.1].
  
  Mailed notices and documents are "deemed" received on the earlier of the fifth day after mailing, or the actual date received [Act s.192(2)]. Mail filing is deemed done the "fifth day that is not a holiday after mailing" [R4.6].
  
  Fax filing is deemed done the "day received when filed by fax" [R4.6].
  
  Courier filing is deemed done the "day after it was given to the courier when filed by courier or on the next day that is not a holiday" [R4.6].
  
  
• EMAIL
  
  . "(W)here the document relates to an application, by email to the email address of the LTB Regional Office responsible for the region in which the residential complex referred to in the document is located", with the following terms:
  
  
  • "Where the LTB permits an application to be e-filed, any related Notice of Termination and Certificate of Service must be uploaded at the time of filing using the LTB's e-filing portal: www.sjto.gov.on.ca/ltb/e-file" [R4.2].
    
    
  • "If the Notice of Termination and Certificate of Service cannot be uploaded at the same time as the application is e-filed, they must be emailed to the Regional Office responsible for the application within 5 calendar days of the e-filing. Failure to upload or to email these documents in time may result in administrative dismissal of the application" [R4.3].
    
    
  • "An application by a non-profit housing co-operative, and any document, other than the payment form, which relates to the application must be filed by email to co-opprocessingLTB@ontario.ca" [R4.4].
    
    
  • "When filing documents by email the sender must include the following information [R4.5]:
    
    . the sender's name, address, telephone number, and email address; and
    
    . the name and telephone number of a person to contact in the event of problems receiving the email and/or attachments."
  
  Email filing is deemed done the "day received when filed by email" [R4.6].
  
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