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Residential Landlord and Tenant Law (Ontario)
(15 August 2015)

Chapter 14 - Hearings, Orders and Enforcement


  1. Overview
  2. Mediated Settlements
    (a) Overview
    (b) Settlement Terms May Contravene Some RTA Provisions
    (c) Board Procedures
  3. Unmediated Settlements
    (a) Overview
    (b) Settlement Embodied in Board Order
    . General
    . Comment
    (c) Settlement Not Embodied in Court Order
  4. Hearings
    (a) Overview
    (b) Sources of Law
    (c) Hearing Conduct and Public Access Issues
    . Overview
    . Control of Proceedings
    . Public Access to Hearings
    . Public Access to Case Files
    . Public Recording at Hearings
    (d) Notices of Hearing
    (e) Oral Hearings
    (f) Written Hearings
    . Overview
    . Board Criteria for Electing Written Hearings
    . "Right to Object" Procedures
    . Notice of Hearing Requirements
    . "Regular" Written Hearing Service and Document Exchange/Filing Procedures
    . Variations re Written Hearings Procedure on Certain Rent Applications [under s.126/126(1)1,132 and 133]
    (g) Electronic Hearings
    . Overview
    . Board Criteria for Electing Electronic Hearings
    . "Right to Object"
    (h) Non-Participation in Hearings
    (i) Comment re Written and Electronic Hearings
  5. Evidence
    (a) Overview
    (b) General Interpretation of Evidence
    (c) "Similar Fact" Evidence
    (d) Members and Mediators Not Compellable Witnesses
    (e) Board Evidence Initiative
    (f) Board Initiative to Move to Amend Applications
    (g) Evidence Directions to Parties
    (h) Taking a View
    (i) Summons
    (j) Evidence in French and Other Languages
  6. Decisions, Reasons and Final Orders
    (a) Overview
    (b) Decisions
    (c) Reasons
    . Overview
    . Reasons Issued on Request of a Party
    . Reasons Issued at Discretion of Board
    (d) Final Orders
    . Overview
    . Conditions on Orders
    . Administrative Fines
    . Party and "Board" Costs
    . Post-Judgment Interest
    (e) Service of Notice of Decision
    (f) Amending Orders
  7. Enforcement and Stays of Enforcement
    (a) Overview
    (b) Terminations
    (c) Eviction
    (d) Monetary Compensation
    (e) Other Enforceability Issues
    (f) Stays
    . Overview
    . Set Aside Motions and Related
    . Amendments to Orders
    . Reviews
    . Court Appeals
    . Judicial Reviews
________________________________________

Note Re: Special and Exempt Premises:

Some residential rental premises - such as care homes, mobile home parks, land lease communities, student accomodation, superintendent's premises, social housing, premises under mortgage proceedings - and others - may be exempt from all or part of the Residential Tenancies Act, or may be subject to special RTA provisions. Readers may want to review Ch.2: "Special and Exempt Premises" to check if this is the case for their specific premises.

Note Re: Offences

Many breaches of the Residential Tenancies Act are also prosecutable offences. Readers may want to review Ch.17: "Offences" regarding specific breaches.

1. Overview

This chapter deals with hearing-related procedures, from all aspects of hearing conduct through to Orders, costs and enforcement. Chapter 13 deals broadly with general and pre-hearing application procedures. I have included the two types of settlements (mediated and unmediated) in this chapter as they so often occur at the eve of hearing.

Parties facing a hearing will be doing themselves a great disservice by reviewing this chapter alone. All other chapters of this program should at least be canvassed for relevance to a particular case, and reviewed in depth if relevance is found. A hearing is like an iceberg, with most of its substance hidden from view in the form of extensive preparation.


2. Mediated Settlements

(a) Overview

The term "settlement" - broadly cast - includes any consensual (voluntary) resolution by the parties of the issues involved in a legal dispute.

While there is nothing in the RTA which prevents parties from reaching their own settlements of cases [see s.3: "Unmediated Settlements", below], this section deals with the Board-assisted settlement of legal disputes which are either "subject of an application or agreed upon by the parties" [Act s.194(1)].
Note:
In my view this language plainly anticipates the Board having jurisdiction to mediate a dispute that has not yet progressed to the filing of an application, however the preamble to Rule 13 [the Board Rule governing Mediated Settlements (linked below)] makes it clear that the Board's view is otherwise:
Pursuant to subsection 194(1) of the RTA, the Board may only mediate landlord and tenant disputes when an application has been made to the Board.

....

When the parties to an application agree, a Board mediation may deal with and resolve issues which are not included in that application to satisfy the interests of the parties and to make more effective and long lasting agreements.
Board staff "mediators" are available to parties at any time to facilitate settlement of any matter.

The Board's authority to make Rules regarding such settlements is grounded in the Statutory Powers Procedures Act, and is discussed at this link to the SPPA program:

Administrative Law (Ontario)(SPPA): Ch.12: Alternative Dispute Resolution

Parties involved in Board-mediated settlements do however need to be aware that mediation with assistance from the Board will usually involve significant degradation of their normal rights and protections under the RTA scheme. While Board-mediations are available with respect to any kind of Board application -including Tenant's Rights applications [Ch.3] - their primary use will involve tenants surrendering their rights to landlords in termination and eviction applications in exchange for continued - but tenuous - preservation of the tenancy.

In particular, special "ex parte" (without notice) application procedures (explained below) can become available to landlords where - after a mediated settlement has been entered into - they allege that the tenant has subsequently breached its terms [see Ch.8, s.3: "Other Termination Procedures: Ex Parte Applications on Breach of Mediated Settlement or Conditional Orders"]. A tenant who, in a mediated settlement, agrees that the landlord may use these accelerated application procedures greatly degrades what otherwise would be their rights under the RTA. These ex parte provisions must be reviewed by anyone considering entering into such a mediated settlement.

As a practical matter, a pre-hearing conference (if scheduled) [see Ch.13, s.12: "General Board Procedures: Pre-Hearing Conferences] is a good practical oppourtunity for mediation and settlement of an application. Of course, if mediation fails or only deals with some of the outstanding issues, the application will continue to hearing on the remaining issues [Act s.194(5); Rule 13.10].

(b) Settlement Terms May Contravene Some RTA Provisions

As alluded to above, mediated settlements may contain terms which contravene provisions of the RTA. This is despite the general RTA override of lease or other agreements which contravene the RTA [see Ch.1, s.1(c): "Fundamentals: Overview: Sources and Conflict of Laws: Residential Tenancies Act"] [Act s.4, 194(2)]. In other words, mediated settlements can involve extensive surrendering of tenant rights, and degradation of their procedural protections.

Tenants should take great care to review and understand the terms of any offered mediated settlements, and frankly should usually refuse mediation completely if they are unsure of their ability to manage it's implications.

The only exception to this 'surrender' rule is that any settlement terms regarding rent increases may not exceed "the sum of the guideline and 3 per cent of the previous year's lawful rent" [see Ch.10: "Rent Fundamentals"]. However this exception is itself excepted (reinstating the 'surrender' rule) for "a mobile home or a land lease home or a site for either" [Act s.194(3)].

It is the responsibility of a Board mediator to explain to parties what rights they may be giving up when they are asked to commit to a mediated settlement [Rule 13.3].

(c) Board Procedures

The procedures relating to Board-mediated settlements are extensive and add significantly to the Act provisions described in (a) and (b) above. They are set out in Board Rule 13, which is linked here [Act s.194(4)], and should be reviewed by parties involved in such proceedings:

Rule 13: Mediation by the Board

In addition to the ex parte application procedures on breach of terms of a mediated settlement, the Rule also provides:
  • that mediated settlements will not normally be confirmed as Orders of the Board (nor retained in any mediator or Board files), in which case they may be "re-opened" for hearing on request made within one year [even if such a right is not set out in the mediated settlement]" due to the failure of the other party to meet any of the terms of the written mediated agreement" or where "the other party coerced them or deliberately made false or misleading representations which had a material effect on the agreement." [R13.7, R13.13, R13.14];

    Request to Re-Open an Application

  • that if mediated settlements are, on consent, confirmed as Orders of the Board, they terminate the application - thus ending the availability of any "re-opening" provisions (as described above);

  • for "partial" settlement of a matter, for the use of "agreed statements of fact" for use in the hearing of the remaining issues, and for "interim agreements" regarding procedural changes to facilitate further settlements (eg. adjournments);

    Note:
    The "re-opening" provisions are not anticipated in the RTA itself, though they do drawn in form from provisions set out in Act s.206 regarding the re-opening of settlements in non-payment of rent and arrears of rent applications - and are likely within the Board's authority under SPPA s.4.8 [as discussed above in (a)].

3. Unmediated Settlements

(a) Overview

It is a traditional practice for parties to legal proceedings - particularly when represented - to reach consensual settlements of their legal dispute without the need for independent (ie. Board) mediation. Despite the sometimes detailed "mediated settlement" procedures referenced in s.2 above, such private settlements are still possible within the RTA application process.

While the term "settlement" broadly includes any resolution of a legal dispute, the situation where it takes place before a legal proceeding is commenced (ie. before a Board "application" is filed) is not considered here. This section deals only with the settlement of matters that have proceeded to an "application" being made to the Landlord and Tenant Board.

Note that separate settlement provisions exist for Board confirmation of (non-mediated) settlements reached in landlord applications to terminate and evict for non-payment of rent, and/or for arrears of rent [see Ch.7, s.10: "Non-Payment of Rent: Settlement Orders".]

Note as well that, if scheduled, a pre-hearing conference [see Ch.13, s.12: "General Board Procedures: Pre-Hearing Conferences] is a good practical oppourtunity for mediation and settlement of an application - with or without the involvement of a Board mediator.

The Board Rule addressing the situation of non-mediated settlements is linked here:

Rule 14: Settlements Reached without Mediation

Of course - unlike "mediated settlements" [s.2 above] - for "unmediated" settlements to have any enforceability, they must conform to the protective terms of the RTA (ie. the terms cannot contravene the tenant protections contained therein) [Act s.3]. Failing this the tenant can disregard the illegal terms of the agreement (though at practical risk of the landlord recommencing an application against them on the original grounds, if possible).

(b) Settlement Embodied in Board Order

. General

There are two practical ways for parties to execute an unmediated settlement. The first is where the settlement is embodied in a Board Order.

The authority for this first form of unmediated settlement is drawn from the SPPA, which authorizes tribunals to dispose of proceedings without a hearing if the parties so consent [SPPA s.4.1]. In this case the parties should reduce the settlement agreement to writing, for filing with the Board. There is no magic to the form of such a document, as long as it is organized, coherent and signed by the parties.

The parties will still be required to attend the hearing so that the Board may review the settlement document for adequacy and legality. The Board will want to ensure that the terms are truly voluntary, do not violate the RTA, and do not exceed its own remedial jurisdiction [see Ch.13, s.3(g): "General Board Procedures: Board Jurisdiction: Remedies"].

Note that while the Order may not exceed the Board's remedial jurisdiction (eg. Orders for termination, eviction, payment of arrears, etc), it is the Board's view that the settlement (and thus the resulting Order) may address substantive issues that were not raised in application before it (ie. other dispute issues).

In any event, the decision as to whether to accept the parties' presented terms of settlement and embody them in a Board Order is ultimately for the Board to make. Failing that the matter must either be withdrawn or proceed to hearing.

. Comment

Note that Rule 14.2 also provides that, in addition to the above:
If the Member believes that another order would be appropriate, based on the basic principles that the parties have agreed to, the Member may ask whether the parties consent to that order.
. This provision was no doubt inserted to allow the Board to lend it's expertise to the parties to reach a more secure agreement. Tenants however should be cautioned to avoid the Board persuading them to consenting to an [Act s.78] "conditional order" which invokes the ex parte application procedures in the event of alleged breach [see s.6(d) below, and Ch.8, s.3: "Other Termination Procedures: Ex Parte Applications on Breach of Mediated Settlement or Conditional Orders"].

(c) Settlement Not Embodied in Court Order

The second settlement method is where the settlement is embodied in some other form of agreement (ie. almost always written) - with the application simply being withdrawn by the applicant party [Act s.200(2)(4)], and no settlement document being filed. The only limit on an applicant's right to withdraw applications is that a tenant's right's application alleging that the landlord has "harassed, obstructed, coerced, threatened or interfered with the tenant" may only be withdrawn with the consent of the Board [Act s.200(3)].

Of course, such settlements do not have the binding force of Board Orders [see s.7: "Enforcement", below]. At best they are contracts showing that some issues of dispute between the parties are at an end, and can be presented to the Board should one party attempt to litigate them.

That said, for such agreement terms to have any legal effect they should be written with the legal restrictions of the RTA in mind.


4. Hearings

(a) Overview

The vast majority of L&T Board hearings are held in the traditional "oral" (ie. face-to-face, court-like) style. However the Board has - under its Statutory Powers Procedures Act (SPPA) rule-making authority - made Rules for the conduct of written (ie. paper-only) hearings [SPPA s.5.2] and electronic (usually telephone) hearings [SPPA s.5.2.1]. These "rule-making authorities" are discussed in the SPPA program, linked here:

Administrative Law (Ontario)(SPPA): Ch.11: Written and Electronic Hearings

Given the historical primacy of oral hearings, written and electronic hearing procedures model themselves heavily on oral hearing procedures, but anyone facing a written or electronic hearing should also review the oral hearing procedures in full. In situations of uncertainty, the law will always look for guidance at oral hearing practice.

General oral hearing topics which apply to most SPPA-governed tribunals (including the Board), are outlined at this link to the SPPA program, and should be reviewed:

Administrative Law (Ontario)(SPPA): Ch.4: Hearings

As well, conduct of oral hearings is modelled heavily on civil trial procedure, which is summarized in the Isthatlegal.ca Small Claims Court Legal Guide at this link (which is well-worth reviewing):

Small Claims Court: Trial: Trial Sequence

This present section deals primarily with Board-specific rules which are either exceptions from, or supplemental to, these SPPA rules - and with the specific topics of written and electronic hearing procedures.

(b) Sources of Law

The law of hearing procedure before the Landlord and Tenant Board is drawn from a number of different primary sources, including:
  • the Statutory Powers Procedures Act (SPPA) [which applies generally to "proceedings before the Board": RTA s.184(1)];

  • the Residential Tenancies Act;

  • the General Regulation under the Residential Tenancies Act;

  • the Board "Rules of Practice";

  • the Board "Interpretation Guidelines";

  • the common law of "natural justice" [judge-made law which provides 'minimum (procedural) standards' necessary to avoid injustice].
It is unfortunate that the procedural law relating to residential L&T matters in Ontario is in such a scattered state, and I do my best to functionally integrate it in this Legal Guide. Occasionally however, due to the variety of laws involved, conflicts can arise. The SPPA sets out that it's general hearing procedures apply - unless the RTA legislation "expressly" overrides them (a 'paramountcy' rule) in the event of conflict [SPPA s.32].

(c) Hearing Conduct and Public Access Issues

. Overview

Unlike most administrative tribunal procedures, dealing with landlord termination applications with dispatch has historically been given a high priority. Given the overwhelming dominance of non-payment of rent evictions in the Board's caseload, this clearly reflects a concern that the landlord not be prejudiced if prompt remedy is withheld. To that end, the RTA provides:
s.183
The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
. Control of Proceedings

Tribunals governed by the SPPA have broad general authority to govern their procedures on a case-by-case basis for purposes of "maintenance of order" [SPPA s.9(2)], as is discussed at this link to the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide:

Administrative Law (Ontario)(SPPA): Ch.4, s.7: Hearings: Control of Proceedings

. Public Access to Hearings

The general SPPA rule is that oral hearings are open to the public. The presiding Board may vary from this rule if it is of the opinion that [SPPA s.9(1)(1.1)(1.2)]:
  • "matters involving public security may be disclosed",
    or

  • "intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public."
Board Rule 24 and Interpretation Guideline 18 reflect these terms and how the Board decides public access issues:

Rule 24: Restricting Public Access to a Hearing

Interpretation Guideline 18: Restricting Public Access to In-Person and Electronic Hearings

The Board provides that in the event that a party wishes the hearing to be held in private, that they "shall file with the application a written request explaining the reasons for the request, and give a copy to each respondent" (there is no prescribed form for this) [R24.1-2]. The Rule [24.3] also grants the Board authority to designate persons (other than parties, who may not be excluded) to be excluded from closed portions of the hearing, which portions of a hearing may be closed, confidentiality undertakings, and the severing of personal information from any resulting publically-available Orders.

. Public Access to Case Files

On the issue of public access to Board file documents, Board Rule 24 states:
While hearings are open to the public, the application file is not. This means that while a member of the public can attend a Board hearing, they will not be given access to the file. Only parties and their representatives can be given access to the file.
The SPPA is silent on general public access to tribunal files - although when a written hearing is to be held it does state that: "... members of the public are entitled to reasonable access to the documents submitted" - except where the s.9(1) [listed above re public access] discretionary exempting conditions are present [SPPA s.9(1.1).

As there is no express override in the RTA of SPPA s.9(1.1), it seems likely that - with respect to written hearings at least - the Board has overreached itself in the above-quoted portion of Rule 24. A proper statement of the law appears to be that public access to Board files in written hearings is subject to discretionary, case-by-case restriction by the presiding Board.

As to the general exclusion (for oral and electronic hearings), it may also be of dubious legal justification. SPPA s.9 as a whole reads as though access to documents is presumed to be included within the concept of hearings being "open to the public", with the express mention of written hearings [SPPA 9(1.1)] being only a natural accomodation of this principle to the special circumstances of written hearings. If the issue ever becomes important for media or other reasons it may have to be revisited.

The issue of public access to Board files is not one of curiosity or media interest alone. Past party behaviour is relevant as similar fact evidence [Act s.202; s.5(c): "Evidence: Similar-Fact Evidence", below] and Board decisions whether to refuse or suspend applications based on non-payment of fines, fees or costs awards [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].

. Public Recording at Hearings

The SPPA is silent on the use of electronic media in tribunal hearings. However Board Rule 24 does govern the issue, as is discussed here.

With the exception of a "party" wishing a transcript of the hearing for their own purposes (at their own expense, and only through the use of a professional court reporter) [R25.1, 25.5]:
... no person shall make a visual or audio recording of any part of the proceeding unless authorized by the Member before or at the beginning of the hearing.

This Rule is intended to apply to parties, their agents, journalists or other persons. The Member may impose conditions on the recording to protect the integrity of the hearing.
That said, it is also Board policy that [R25.2]: "(m)ost Board hearings will be recorded", and that copies will be available to the public upon payment of the required fee.

Request for a Hearing Recording

Board Rule 25 cites - in support of their authority for this prohibition - a general SPPA provision [s.9(2)] regarding "maintenance of order at a hearing". In my opinion the recording prohibition is a dubious use of that authority, which in any event is a discretionary case-by-case authority resting on each presiding tribunal - not on the administrative tribunal by way of its rule-making authority. Like similar prohibitions on access to case files, if the issue ever becomes important it's dubious basis may have to be examined in more detail by a court.

In the meantime, readers may want to have regard for comparison to an example of specific court rules which address these issues. These are discussed in the Isthatlegal.caSmall Claims Court (Ontario) Legal Guide:

Small Claims Court: Trial: Trial Issues (see s.4(e):"Public Access and Media")

(d) Notices of Hearing

The procedural law governing the contents and service of Notices of Hearing is explained in Ch.13, s.4(d-e): "General Board Procedures: General Application Procedures: (d) Initiation and Service of Notice of Application and Related Documents" and (e) "Board Notice to Tenant". The topic is integrally tied to commencement of applications, and the service of the Notice of Application.

(e) Oral Hearings

Once the parties have gotten themselves to the hearing room awaiting an oral hearing of the application, there is no significant difference in the hearing process from that of similar processes in thousands of other civil and administrative proceedings being conducted in Ontario, Canada and the rest of the common law world that same day.

Basic oral hearing conduct is described in the Isthatlegal.ca Small Claims Court (Ontario) Legal Guide (linked above).

(f) Written Hearings

. Overview

As noted above, the SPPA - which applies to RTA proceedings unless expressly overridden - allows tribunals to make Rules for the hearing of RTA applications by way of a "written hearing" [SPPA s.5.1(1)]. Such "hearings" are little more than the scheduled exchange - and filing with the Board - of documentary evidence and submissions between the parties.

If such a hearing is directed by the Board, it shall be so held unless "a party satisfies the tribunal that there is good reason for not doing so." [SPPA s.5.1(2)] (the "right to object"). However no "right to object" exists where the matter is only procedural in nature. A typical reason for objecting to a written hearing would be the need for in-person testimony to test the credibility of parties - or of documentary evidence provided - by direct examination of the document authors.

Similarly, the SPPA provides that "in a written hearing, all the parties are entitled to receive every document that the tribunal receives in the proceeding." [SPPA s.5.1(3)] ("right to full disclosure").

. Board Criteria for Electing Written Hearings

The Board Rule governing written hearing procedure is linked here:

Rule 22: Written Hearings

Criteria which the Board will have regard to when deciding whether to hold a written hearing or not are [R22.1]:
  • the need for credibility assessment of viva voce (in-person witness) testimony (which weighs towards oral hearings);

  • the extent to which the issues in the case are those of fact (which leans towards oral hearings);

  • the extent to which the issues in the case are questions of law (which leans towards written hearings);

  • the convenience of the parties;

  • the ability of the parties to participate in a written hearing (eg. literacy); and

  • the cost, efficiency and timeliness of proceedings.
. "Right to Object" Procedures

Where a "right to object" exists [see the "Note" below for exceptions], it must be raised within 27 days after the "Notice of Written Hearing" is received by the party. Such objection must be in writing, with reasons [R22.2].

The member deciding the objection may then convert the hearing to either oral [see (e) above] or electronic hearing [see (g) below].
Note:
While Rule 22 clearly implies that the Board, on deciding such an objection, will assess all relevant factors and exercise their discretion accordingly - the following quote from R21 [Electronic Hearings], plainly implies that objections to written hearings will automatically result in conversion to another form of hearing:

Rule 21.2 (Electronic Hearings): For an electronic hearing (unlike a written hearing) a party's objection will not automatically convert the hearing into an oral one.

I have found no explanation for this apparent anomaly in the Rules, or elsewhere.
. Notice of Hearing Requirements

Notices of Hearing for both written and electronic hearings are required to contain special advisory and caution information respecting the "right to object", and the effect of non-participation in the hearing [SPPA 6(4)(5); and (h) below]. I have seen other tribunals ignore this requirement, so readers should be on guard against similar lapses in the Board's Notices of Hearing.

These requirements are discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide at this link:

Administrative Law (Ontario)(SPPA): Ch.11: Written and Electronic Hearings

. "Regular" Written Hearing Service and Document Exchange/Filing Procedures

The applicant is required to serve the Notice of Application and Notice of Written Hearing on the respondent within 20 days after issuance by the Board [R22.4].

Certificates of Service [see Ch.13, s.8: "General Board Procedures: Service and Filing of Documents"] must be filed within 25 days after the "Notice of Written Hearing" application is issued (which may be a different date from when the Application is issued) [R22.6], subject to risk of the application being dismissed [R22.7].

Responses (by the respondent) must be served and filed within 34 days after issuance by the Board of the Application (not after receipt of the commencing materials).

The response shall contain:
  • the party's submissions,

  • the relief requested (typically, dismissal of the application);

  • any documentary evidence relied upon (affidavits may be used to present testimonial evidence).
A further "reply" from the applicant may then be served and filed within 41 days after issuance by the Board of the application (not after receipt of the commencing materials).

The above timelines may be subject to extension at the discretion of the presiding member [see Ch.13, s.9(e) and (f) re extension requests].

. Variations re Written Hearings Procedure on Certain Rent Applications [under s.126/126(1)1, 132 and 133]

There are express SPPA overrides of the "right to object" and "right to full disclosure" for written hearings [RTA s.184(2)(3)], for the following applications:
  • tenant's application to decrease rent on reduction of municipal taxes and charges [Act s.133]. [see Ch.12, s.2(b)], and

  • landlord or tenant applications to vary rent reduction stemming from municipal notice of rent reduction on property tax reduction [Act s.131, 132] [see Ch.12, s.2(c)]
Similarly, while all s.126 "above-guideline" rent increase Applications [see Ch.11] are exempted from the "right to full disclosure" in written hearings, only such Applications that are solely based on EIMEU grounds are exempted from the "right to object" provisions. That is, above-guideline rent increase Applications based even in part on a non-EIMEU ground (such as ECE or SSOC grounds) retain the right to object [Act s.184(2)(3)].

The impact of the "right to object" override, where it applies, is that the Board may hear those Applications by way of written hearing despite any objections of the parties. This is presumably done as the subject matter of such applications is inherently documentary, and has little to no need for credibility assessment.

The purpose of the "right of full disclosure" override is to avoid the need for service on respondent/tenants of documentation which relates only to outlining the residential complex structures, and units therein. Full materials need only be filed with the Board.

Additionally, for above-guideline rent increase applications [under s.126], respondents must serve and file their responses within 50 days after issuance by the Board (not after receipt of the commencing materials). Replies to this by the applicant must be served and filed within 65 days after issuance by the Board.

(g) Electronic Hearings

. Overview

As noted above, the SPPA - which applies to RTA proceedings unless expressly overridden - allows tribunals to make Rules for the hearing of RTA applications by way of a "electronic hearing" [SPPA s.5.2(1)]. Practically these are always conducted by telephone, although video is also a possibility.

The presiding member may designate which party shall make the arrangements "for the facilities or equipment necessary for the electronic hearing, including paying any associated expenses." [R21.3]. Rule 21 states that conference calls will usually be arranged and paid for by the Board.

Board Rule 21, linked here, sets out the Board's policy with respect to electronic hearings:

Rule 21: Electronic Hearings

. Board Criteria for Electing Electronic Hearings

Factors which the Board will look to when deciding to hold an electronic hearing include:
  • number of parties (fewer leans toward electronic hearings);

  • the need for credibility assessment of testimony (leans towards oral hearings);

  • the extent to which the issues in the case are those of fact (which leans towards oral hearings);

  • the extent to which the issues in the case are questions of law or procedure (which leans towards electronic hearings);

  • the convenience of the parties;

  • cost, efficiency and timeliness of the available forms of hearing;

  • any other relevant factors:

    There may be logistics which would make an electronic hearing difficult or unworkable, such as lack of facilities speaker-phones on telephones, no way of viewing photographs, or the lack of a fax machine to view documents that should be exchanged during the hearing.
. "Right to Object"

If such a hearing is directed by the tribunal (ie. the Board), it shall be so held unless "a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice" s.5.1(2)] (the "right to object"). However no "right to object" exists where the matter is only procedural in nature. Typical reasons for objecting to an electronic hearing would be the need for in-person testimony to test the credibility and demeanour of parties, or the unavailability of the equipment (eg. speaker-phones) required. It is a requirement of electronic hearings that all parties and Board members are able to hear each other - and any witnesses - at all times [SPPA s.5.2(4)]

As well, many people find a telephone hearing degrading and trivializing of their rights (an opinion which I share). They are however useful, at least for portions of a hearing, where witnesses are hospitalized, incarcerated or otherwise physically unavailable.

Any objections to electronic hearings must be raised by a date specified in the Notice of Electronic Hearing. Such objection must be in writing, with reasons [R21.2].

The member deciding the objection may then convert the hearing to an oral [see (e) above] hearing - or not - in accordance with relevant factors and in their discretion.

(h) Non-Participation in Hearings

Parties to oral hearings who do not attend the scheduled hearing (or in the case of written or electronic hearings who neither object to the process nor participate in the hearing) may find that the Board will proceed without them "and the party will not be entitled to any further notice in the proceeding" [SPPA s.7(1-3)]. This is consistent with civil litigation practice where an initially unresponsive party is effectively considered in "default" from that point in time, and any further procedural steps may be taken without notice to them, their consent or their input.

However, neither the SPPA nor the Rules address the situation where a party objects to a written or electronic hearing, finds the objection overriden, and then does not participate in the hearing. It may be that the reasonableness of such behaviour could be considered by the Board on a Review [see Ch.15: "Reviews and Court Appeals"], though relying on this possibility is highly risky. The better course of action would be to participate in the hearing as assigned (and as best one is able), and then argue any problems on Review and/or if necessary, and as they occur.

(i) Comment re Written and Electronic Hearings

In my opinion the use of written or electronic hearings in any administrative proceedings where a party has a need to call testimonial evidence is a serious degradation of natural justice.

While the Rules quoted above note that one of the considerations that the Board should weigh against deciding to hold non-oral hearings is the need to decide issues of credibility, anyone with a passing familiarity with litigation knows that the primary purpose of having an oral hearing is to assess and weigh the credibility of the parties.

Practically all termination and eviction applications will involve credibility issues - even if only for the mandatory consideration of the Board's "relief from forfeiture" discretion [see Ch.9, s.5(b)] - but more commonly for with regard to the primary "cause" or "reason" for termination alleged. The risk to the tenant of loss of housing - an essential aspect of human security - demands no less than an oral hearing in all but the rarest of such cases, such as where physical (ie. incarceration) or medical or safety circumstances demand it - or where the appellant exercises a truly informed consent, with advice of counsel.

That said, the special provisions for written hearings on some rent review applications seems appropriate given the nature of the proceedings and evidence involved. Such proceedings amount to little more than administrative applications with the occasional need to consider competing documentary evidence.

Time will show how sensitive the Board is to these essential concerns.

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