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Residential Landlord and Tenant (Ontario) Legal Guide


Chapter 14 - Hearings, Orders and Enforcement
(01 September 2020)

  1. Overview
  2. Mediated (and Other) Settlements
    (a) Overview
    (b) Settlement Terms May Contravene Some RTA Provisions
    (c) Board Procedures
    . Overview
    . Authority to Participate in Board Mediations
    . Settlement Privilege
    . Ex Parte Re-Opening of the Application
  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
    . Overview
    . Control of Proceedings
    (c.1) Public Access Issues
    . Public Access to Hearings
    . Public Access to Case Files
    (c.2) Recording at Hearings and Public Access
    (d) Notices of Hearing
    (e) Oral Hearings
    (f) Written Hearings
    . Overview
    . Board Criteria for Electing Written Hearings [Deleted from Rules]
    . "Right to Object" Procedures
    . Notice of Hearing Requirements
    . Withdrawals
    . "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 [Deleted from Rules]
    . "Right to Object"
    . Withdrawals
    (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 (and Other) Settlements
Note: With Bill 184, the RTA was amended so that references in s.78 to 'mediated settlements' (meaning Board-mediated settlements) were changed to read 'agreed settlements', and references to 'mediation' in s.194 where changed to "mediation or another dispute resolution process". These changes were made to accomodate the COVID non-payment termination [see Ch.7, s.11] changes brought about on 21 July 2020, which did not rely on Board mediation [ie. which could include party-party agreements]. Therefore, please read any reference to 'mediated settlements' in this section, as meaning 'agreed settlements'. I do not make these changes in the text yet as the Bill 184 amendments may be repealed after the COVID crisis.
(a) Overview

The term "settlement" - broadly cast - includes any consensual 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 present 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)].

They are conducted by "DROs" (the optimistically-named 'Dispute Resolution Officers'). Section 3 deals with unmediated settlements.
Note:
In my mind, the language of s.194(1) plainly anticipates the Board having jurisdiction to mediate a dispute before it progresses to the filing of an application - kind of a pro-active outreach service to landlords and tenants. However, the previous Rule 13.1 (the old one from my 2015 Guide, since repealed), read: "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." The present R13.1 doesn't do any better, in fact restricting Board-mediations to a greater extent: "The LTB may offer mediation services to parties on the day of hearing in all applications."
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

Settlements (either mediated or unmediated) are not Board Orders. When a mediated settlement [sometimes called a 's.78 settlement'] is reached parties will ask the Board to close the file on that basis [R13.7] with the parties retaining the settlement documents as essentially a 'contract' between themselves, subject to 'settlement privilege' [see s.2(c) below].

Tenants 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.

This is because special "ex parte" (without notice) application re-opening procedures (explained below) become available to landlords where, after a mediated settlement has been entered into, they allege that the tenant has subsequently breached it's 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 ex parte and 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. In my opinion they should only be entered into as a last resort, and the tenant should start looking for a new place immediately as a backup.

Once parties grapple adequately with the risks of mediated settlement, 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)].

(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. I can't repeat that often enough: the only limits on the terms that a mediated settlement may involve are those of the Criminal Code.

Tenants should take great care to review and understand the terms of any offered mediated settlements, and frankly should usually refuse such settlement completely if they are unsure of their ability to manage it's implications. God knows how many tenants have ended up homeless because fear of a hearing causes them to agree to a mediated settlement, only to be following shortly eviction notice from the sheriff. In this ex parte procedure there is no further Notice of Termination, no hearing - nothing, except the difficult and time-constrained possibility of set aside procedures [see Ch.8, s.3(g)].

The only exception to this 'surrender of RTA rights' rule is that any settlement terms regarding AGI 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 (thus reinstating the 'surrender of RTA rights' rule) for "a mobile home or a land lease home or a site for either" [Act s.194(3)].

In the last set of Rules [the old R13.3] it was 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. In the 2019 Rules that duty has since been deleted.

(c) Board Procedures

. Overview

Keeping in mind the cautions I've expressed regarding mediated settlements, let's get down to procedures.

First, mediated settlement may be offered to the parties "on the day of hearing in all applications" [R13.1]. That doesn't mean that they can't be offered at other times (eg. after a pre-hearing conference or a case management hearing) but it is a clear sign of the Board's intention on how their mediators should be used.

There are a few other miscellaneous provisions:
  • mediation is required in care home transfer applications [R13.2] [see Ch.2, s.3(e)];

  • where parties have reached (or almost reached) a settlement by themselves [an "unmediated settlement", see s.3, below] they may call on a DRO to reach a mediated 'settlement' [R13.4];

  • "(w)here a party has paid money into the LTB, the DRO will direct payment out of the funds as required by the mediated agreement" [R13.8].

  • "(w)here parties agree to amend an application as part of a mediated agreement the application will be considered amended" [R13.9].
. Authority to Participate in Board Mediations

"A party need not attend the mediation provided the party has a representative and the representative [R13.3]:
  • has filed a written agreement signed by the party giving the representative the authority to mediate and to agree to a settlement; or

  • is a lawyer or paralegal licensed to practice in Ontario and confirms the party has authorized them to mediate and to agree to a settlement; or

  • confirms the party has authorised the representative to mediate and agrees to a settlement and the other participating parties and the DRO agree to proceed with the mediation in these circumstances."
. Settlement Privilege

It is a universal practice in mediation to treat all settlement communications as 'settlement privileged', by all involved in the case, including Board staff (ie. DROs). This means that none of the communications or documentation involved in the settlement proceedings may be adduced into evidence in the case or otherwise, by anyone. Therefore [R13.5-6, R13.10]:
  • "(a)nothing said during a mediation, including any offer to settle, is confidential and may not be used before the LTB or in any other proceedings";

  • "DROs shall not reveal information obtained in mediation to any other person including a Member. DROs cannot be compelled to give testimony or produce documents in any civil proceeding with respect to matters that come to their attention in the course of their duties including mediation. This Rule cannot be waived.";

  • "(e)xcept where the parties agree otherwise, copies of mediated agreements are confidential, the property of the parties and will not be retained by the LTB."
. Ex Parte Re-Opening of the Application

The ex parte re-opening of the application is the pernicious part of this whole s.78 regime. When parties earlier reach a 'mediated settlement' of the application, and where the landlord only alleges that it has since been breached, the landlord may 're-open' it without notice [Act s.78(1), R13.11]. As well, the settlement privilege that attaches to the settlement will be breached [Act 78(2)] and the settlement may be entered in evidence, to 'prove' the breach.

There are time limits to this procedure:
  • first, the landlord must file their re-opening application with 30 days of the events of the allegations [Act 78(5)]; and

  • "(t)he request to re-open must be filed with the LTB no later than one year after the mediated agreement was signed unless the parties agree to a longer time" [R13.12].

    This second limitation is one apparently unique to the Rules, as it is not referred to in the RTA or it's Regulations. It amounts to a time limit on the mediated settlement if the parties do not themselves specify one.

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.

Again, keep in mind that a settlement is not a Board order [R13.7], it is in essence a 'contract' between the parties, and the same 'privilege' rules apply to it as are set out in s.2(c) ["Settlement Privilege"], above.

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:

R14: Consent Orders

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(1), R14.2].

(b) Settlement Embodied in Board Order

. General

There are two practical ways for parties to execute an unmediated settlement: with the settlement agreement being either embodied in a Board order [R14.1], or not [see (c), next].

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"]. 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 ["Consent Orders"] also provides that, in addition to the above:
If the LTB is satisfied that the terms of the agreement are consistent with the RTA it may issue a consent order as requested by the parties or another more appropriate order based on the parties' agreement.
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 extreme s.78 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"]. Parties should make it clear with the Board member whether this is their intention or not.

(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 with the LTB. In that case, the applicant just advises the Board (eg. a clerk over the counter, or a member at an attendence) that the application is withdrawn.

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 argue 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 majority of L&T Board hearings used to be 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 (invariably, 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 to 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 if you are not experienced with legal hearings):

Small Claims Court: Trial: Trial Sequence

This present section deals primarily with Board-specific rules which are exceptions from, or supplemental to, the 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 LTB Specific Rules;

  • 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

. Overview

Unlike most administrative tribunal procedures, dealing with landlord termination applications with dispatch has historically been given a high priority. Given the 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

The LTB rules support this authority with this general provision [R1.4]:
1.4
The LTB will decide how a matter will proceed, may reschedule proceedings on its own initiative, may make procedural directions or orders at any time and may impose any conditions that are appropriate and fair.
Further, there is a range of more specific authorities that the Board holds to run hearings [R1.6]:
  • waive or vary any provision in these Rules and may lengthen or extend any time limit except where prohibited by legislation or a specific Rule;
  • add or remove parties as it considers appropriate;
  • join applications or hear applications together where it is fair to do so;
  • sever applications or sever parts of an application;
  • conduct any inquiry it considers necessary or request any inspection it considers necessary;
  • direct a party to deliver a notice or document to another party or person in any manner that is appropriate;
  • allow a party to amend any filing;
  • amend an application on its own motion where appropriate, on notice to the parties;
  • view a premise which is the subject of an application;
  • direct parties to attend a CMH or a pre-hearing conference;
  • direct the manner in which a party may communicate with the LTB;
  • direct the order in which issues, including issues the parties consider to be preliminary, will be considered and determined;
  • define and narrow the issues to be decided;
  • question a party or witness;
  • order disclosure of evidence;
  • limit the evidence or submissions on any issue where satisfied there has been full and fair disclosure of all relevant matters;
  • exercise its discretion to permit a party's legal representative to give evidence where appropriate;
  • make interim decisions or orders;
  • dismiss an application which is frivolous and vexatious, has not been initiated in good faith or does not disclose a reasonable cause of action on its own motion and without a hearing;
  • refuse to consider a party's evidence or submissions where the party has not provided the evidence or submissions to the LTB and the other parties as directed by the LTB; and
  • take any other action the LTB considers appropriate in the circumstances.
(c.1) Public Access Issues

. 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."
Interpretation Guideline 18 reflects these terms and how the Board decides public access issues:

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

Lastly, the Board rules reflect these themes:
  • "LTB hearings are open to the public, except where [R7.6]:

    . it is necessary to close some or all of a hearing to the public to prevent serious risk to the proper administration of justice and reasonably alternative measures will not prevent the risk, and

    . the benefits of closing some or all of a hearing to the public outweigh the harm to the rights and interests of the parties and the public.

  • A party may request that some or all of a hearing be closed to the public. Absent exceptional circumstances the request must be in writing, give reasons in support of the request, be delivered to all other parties and be filed with the LTB as soon as the need for the request arises [R7.7].

  • Where the LTB decides to close some or all of a hearing to the public it may make any orders it considers appropriate." [R7.8]
. Public Access to Case Files

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), 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 for at least the following legitimate purposes:
  • similar fact evidence ("pattern of activities") [Act s.202; s.5(c): "Evidence: Similar-Fact Evidence", below];

  • 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"].
(c.2) Recording at Hearings and Public Access

The SPPA is silent on the use of electronic media in tribunal hearings by the public. This suggests that it is to the presiding tribunal member/s to decide public requests under their general authority to control proceedings [SPPA 9.2].

There are Rules bearing on the use of recordings by parties, and - oddly - a form. The Rules [R7.9-7.11] provide:
  • "(w)here the LTB records a hearing, the recording will form part of the record and any party may request a copy of the recording on payment of the required fee. Requests must be made within ten years of the date of the hearing" [R7.9],

  • "(o)n notice to the LTB a party may retain a court reporter to create a transcript of the hearing. The LTB is not responsible for the cost of the reporter. If the transcript is used in the hearing a complete copy must be provided to the LTB and the other parties at the party's expense" [R7.10],

  • "(a) party may not make any other form of visual or audio recording without receiving permission from the LTB before the hearing begins" [R7.11].
While the Rules (above) only allow 'parties' to generate or access copies of such recordings, the form ['Request for a Hearing Recording'] has no such limitation, leading one to believe that the public might gain access as well. I don't know if this is an oversight with the Rules and the Form:

Request for a Hearing Recording

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 essential 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).

The only variation from normal oral hearing practice is regarding withdrawal of an application:
  • "(a)n applicant may withdraw an application without consent at any time before the oral ... hearing begins unless it is for an order 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 in which case it cannot be withdrawn without the consent of a Member or DRO" [R17.1];

  • "(a)n oral ... hearing begins when parties first come before the Member or DRO and this includes an appearance on a preliminary matter. After an oral ... hearing begins the application cannot be withdrawn without the consent of the Member or DRO." [R17.3].
(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.

The schedule of exchange of documents will be set out by the Board in writing, likely in the Notice of Hearing.

. Board Criteria for Electing Written Hearings [Deleted from Rules]

This is a sub-section from the 2015 version of this Legal Guide. The topic doesn't appear in the 2019 Rules. I repeat it here as it still may be useful in determining why the Board has opted for a written hearing:
Criteria which the Board will have regard to when deciding whether to hold a written hearing or not are [old 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

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.

The Rules address objections to written hearings with this [R7.3]:
7.3
An objection to a written hearing must be in writing and explain why there is good reason for not holding a written hearing. The objection must be filed no later than 27 days after the date of the notice of written hearing. The LTB may hold a written hearing unless it is satisfied that there is a good reason not to.
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").

If the member deciding the objection agrees with the objection they may convert the hearing to either oral [see (e) above] or electronic hearing [see (g) below].

. 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

. Withdrawals

"Where an application is being heard in writing, it may be withdrawn without consent at any time before the day on which the applicant's written submissions are due. The applicant must notify the LTB and the other parties of the withdrawal as soon as possible" [R17.2].

. 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 EIME grounds are exempted from the "right to object" provisions. That is, above-guideline rent increase Applications based even in part on a non-EIME 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.

For above-guideline rent increase applications [under s.126], respondents must serve and file their responses within 50 days after the date on the Notice of Hearing (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. The response need not be delivered to the applicant or other respondents. The applicant is responsible for determining whether responses have been filed with the LTB [R11.1]. The applicant may file a reply to a response no later than 65 days after the date on he Notice [R11.3]. The response must identify [R11.2]:
  • the issues in dispute and provide the respondent's submissions on them;
  • any remedy or relief requested; and
  • attach any documents that support the respondent's position.
(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.

. Board Criteria for Electing Electronic Hearings [Deleted from Rules]

This is a sub-section from the 2015 version of this Legal Guide. The topic doesn't appear in the 2019 Rules. I repeat it here as it still may be useful in determining why the Board has opted for an electronic hearing:
Criteria which the Board will have regard to when deciding whether to hold a electronic hearing or not are:
  • 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 an electronic 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." [SPPA 5.2(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)].

The Rules state [R7.2]:
7.2
An objection to an electronic proceeding must be in writing and explain why an electronic hearing will cause the party significant prejudice. The notice of electronic hearing will include the date by which an objection must be filed with the LTB.
Many people find a telephone hearing degrading and trivializing of their rights (an opinion which I share). They can be useful, at least for portions of a hearing, where witnesses are hospitalized, incarcerated or otherwise physically unavailable. But sadly a plurality, if not a majority of all tribunal hearings are now held in Ontario by telephone, a fact which speaks volumes for the low value that the province places on the rights of it's lower-class and (increasingly) middle-class citizens.

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

. Withdrawal

A variation from normal hearing practice for electronic hearings is regarding withdrawal of an application:
  • "(a)n applicant may withdraw an application without consent at any time before the ... electronic hearing begins unless it is for an order 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 in which case it cannot be withdrawn without the consent of a Member or DRO" [R17.1];

  • "(a)n ... electronic hearing begins when parties first come before the Member or DRO and this includes an appearance on a preliminary matter. After an ... electronic hearing begins the application cannot be withdrawn without the consent of the Member or DRO." [R17.3].
(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 most further procedural steps may be taken without notice to them, their consent or their input.

(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 principles noted above are 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 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.

In my last 2015 update of this Legal Guide, I ended this sub-section with the sentence: "Time will show how sensitive the Board is to these essential concerns." I welcome any input on this issue.

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