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5. Evidence
(a) Overview
The topic of evidence before any administrative tribunal is quite broad and draws heavily on the conventional law of civil evidence applied in the courts. Thankfully the law of evidence before the Landlord and Tenant Board tracks very closely with the standard evidence practices of all tribunals governed by the Statutory Powers Procedures Act (SPPA). This topic is discussed at length in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide, as linked here. This link is the main body of evidence law provided in this Legal Guide:
Administrative Law (Ontario)(SPPA): Ch.6: Evidence
The Board's standard form for an affidavit is linked here:
Affidavit
In 2017, an alternative form of documentary evidence ["(w)here a provision of this Act requires an affidavit from a person with respect to a specified statement or specified information"] was allowed for in the LTB Rules [Act 192.1, Rule 1.5]. These 'declarations' may be unsworn, and:Rule 1.5
Where the RTA requires an affidavit respecting a specified statement or specified information, the LTB will also accept a signed and dated declaration containing the specified statement or specified information provided the declaration confirms the truth of the information or statement and acknowledges that making a false declaration is an offense. Additional evidence provisions that apply uniquely to Board hearings are discussed immediately below [sub-sections (b-d)].
That said, the Board itself does have highly unusual authority to engage in evidence-gathering activities on it's own. While usually evidence-presentation in hearings is entirely party-driven, the RTA gives the Board broad authorities and powers [discussed below in sub-sections (e-h)] of initiative to require and compel testimony and other evidence. In this sense it is much more like European-style inquisitorial courts - run by judges who mix both judicial and investigative functions.
All of these authorities are discussed below, and the Board's perspective on them is set out in Interpretation Guideline 13: "Other Powers of the Board", linked here:
Interpretation Guideline 13: Other Powers of the Board
It can however be expected that use of these broad evidence powers by the Board will be infrequent. They seem most designed for use in tenant's rights applications (especially re "repair" issues). They may also find use in a limited fashion by way of specific instruction from a presiding Board to clarify specific instances of ambiguous documentary evidence.
(b) General Interpretation of Evidence
In interpreting the evidence and making its fact-findings on an application, the Board is to be guided by the following principles [Act s.202]:- it "shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants";
- it "may disregard the outward form of a transaction or the separate corporate existence of participants".
These provisions encourage and authorize the Board to give less significance in its fact-findings to artificial legal or other structurings of the parties before it, and is reminiscent of (though distinct from) the civil law concept of "piercing the corporate veil" where courts reach behind corporate structuring and locate liability on the actual 'controlling minds' involved.Case Note: Drewlo Holdings Inc. v. Weber (Div Ct, 2011)
In this case the tenancy was exempt from above-guideline rent increases by virtue of a categorical exemption set out in RTA s.6(2) [see Ch.10, s.6]. The landlord circulated a letter stating that the purpose of a nine percent increase was to compensate the landlord for the allegedly higher-than average damage costs that the presence of pets in units posed. The Board (upheld by the court), having regard to it's jurisdiction to ascertain the "real substance of all transactions and activities" [RTA 202], held this to be an illegal penalty charge and ordered a compensating abatement of rent. Abatement of rent was ordered as the Board accepted the characterization that “…a tenant’s reasonable enjoyment of the property…includes the expectation that they [sic] will not be made subject to premiums, penalties or other charges for otherwise lawful conduct.” The court's reasons suggest that if the landlord had simply been silent as to the reason for the increase, it likely would not have incurred this problem (though logically this is solely as a matter of not inadvertently giving the tenant evidence against it). (c) "Similar Fact" Evidence
The Board is further encouraged in its fact-finding activities to "have regard to the pattern of activities relating to the residential complex or the rental unit." [Act s.202].
This provision is reminiscent of the evidence law concept of "similar fact" evidence (discussed briefly in the SPPA evidence link, above), which under the common law is applied in a very conservative and hesitant fashion. "Similar fact" evidence is evidence of what a party has done in past "similar" situations. Thus if a landlord has a "history" of poor (or good, for that matter) maintenance with respect to the particular unit or any other units in the "residential complex", such evidence can be relevant to the current proceeding if it also involves the issue of maintenance (and so with other fact situations). Note as well that what is included within a "residential complex" can be quite extensive [see Ch.1, s.6(d): "Fundamentals: Terminology Notes: Residential Complex"].
"Similar fact" evidence is close in meaning to that of "character evidence" - though not as broad. "Character evidence" - when it is allowed - is evidence of one's previous general moral behaviour and demeanour. It is a general principle of evidence law that "character evidence" cannot be introduced with respect to a party until the party themselves had "led" evidence of their good character (this is called "opening the door").
Act s.202 can be read then as inviting the Board to take a more liberal approach to the admissibility and weighing of such evidence - at least as it relates to "patterns of activities" in the residential complex.
(d) Members and Mediators Not Compellable Witnesses
The use of Board mediation to settle applications is discussed extensively in s.2, above.
In a provision quite consistent with normal legal practice, Board members and mediators are not compellable witnesses in any civil proceedings (including Board proceedings) - either personally or through their documents - "with respect to matters that come to his or her knowledge in the course of exercising his or her duties under this Act" [Act s.175].
Board members, like judges, are deemed to 'speak through their rulings', and mediators are given a status consistent with the civil evidence doctrine of "settlement privilege" (that the contents of settlement discussions are privileged and may not be compelled in testimony). This is consistent with general administrative tribunal practice [SPPA s.4.9].
The Board's perspective on these duties is set out in Board Rule 13.5-13.6, linked here:
R13: Mediation
(e) Board Evidence Initiative
The Board may, "before, during or after a hearing" [see Note 1, below] [Act s.201(1)(a-c)]:- "conduct any inquiry it considers necessary or authorize an employee of the Board to do so";
- "request an employee in the Board to conduct any inspection it considers necessary"; and
- "question any person, by telephone or otherwise, concerning the dispute or authorize an employee of the Board to do so".
Any relevant evidence obtained by the Board from the exercise of these powers may be considered by it in its decision "provided that it first informs the parties of the additional information and gives them an opportunity to explain or refute it" [Act s.201(2)].Note 1:
While all of these above-noted powers of 'evidence initiative' may be exercised "before, during or after" a hearing, this authority 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 Board Rules have a number of authorities that bear on the Board's role in evidence-gathering [R1.6]:- conduct any inquiry it considers necessary or request any inspection it considers necessary;
- view a premise which is the subject of an application;
- 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;
- 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.
(f) Board Initiative to Move to Amend Applications
This 'new' intrusive role of the Board extends beyond mere evidence-gathering and includes the right of the Board "before, during or after a hearing" [see Note 1, below], to itself initiate a motion [see Ch.13, s.13: "General Board Procedures: Motions"] to amend an application before it. The right to initiate such motions is traditionally restricted to the parties.
While this authority does not strictly relate to evidence-gathering practices, it's inclusion in the legislation amongst these new evidence-gathering authorities suggests that it is intended to be used when new Board-generated evidence dictates the need for amendments.
What constitutes "amending" an application is not specified in the legislation, but logically can include any aspects of the application contents submitted by the applicant, including: remedy sought, fact allegations, monetary amounts, parties named, etc. This interpretation is consistent with similar practices in civil litigation.
Such motions 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(f)].
Board Rule 15, linked here, governs the making of such amendments by parties, and so is of limited value when facing a Board-initiated motion to amend:
Rule 15: Amending Applications
(g) Evidence Directions to Parties
Further, "the Board may, before, during or after a hearing", [see Note 1, below] "permit or direct a party to file additional evidence with the Board which the Board considers necessary to make its decision" [Act s.201(1)(d)].
Failure to comply with a direction made under this authority may be sanctioned by the Board as follows [Act s.201(3)]:- refusal "to consider the party's submissions and evidence respecting the matter regarding which there was a failure to comply"; or
- "if the party who has failed to comply is the applicant, dismiss all or part of the application".
The authority of a Tribunal to permit additional evidence is traditional and unquestioned, however the authority of a Tribunal to essentially demand it - at pain of serious prejudice to one's cases - is unusual, and perhaps unique, in a non-regulatory administrative context. That said, given the typical overburdening of such Tribunals, it is a safe prediction that these powers will rarely be used in any thorough-going way. They may find some 'on-the-spot' use in hearings by frustrated Board members attempting to winnow down verbose party "pleadings" (the written fact and legal claims made in the Notice of Application), or in attempting to assist persons with limited literacy or organizational skills.
(h) Taking a View
"Taking a view" is an old and little-used authority of a court or Tribunal to leave the hearing room premises and to actually visit places and see large things that it is inconvenient to bring to the hearing. With the advent of modern photography (and again the overburdening of Tribunals and courts generally) this power sees little present day use.
That said, the Board "may, before, during or after a hearing" [see Note 1], "view premises that are the subject of the hearing" [Act s.201(1)(e)], on notice to the parties so that they might join them [Act s.201(4)].
(i) Summons
"Summons" (sometimes called "subpoenas"), are used to compel the oral testimony of, and production of documents by, witnesses. General summons practices for administrative tribunals are set out at this Isthatlegal.ca Administrative Law (Ontario)(SPPA) link [see s.9: "Witnesses"]:
Administrative Law (Ontario)(SPPA): Ch.6, s.9: Evidence: Witnesses
The Board has passed rules bearing on summons:7.4
A party may ask the LTB to issue a summons for a witness by completing and filing a Request for LTB to Issue a Summons form. The request must be made as soon as the party becomes aware a summons is required. Where a party is represented by a lawyer or paralegal the lawyer or paralegal must prepare and submit the summons with the request.
7.5
Service of the summons and payment of the attendance money is the responsibility of the party who requested the summons. Parties must justify their request for summons to the Board:
Request for the Board to Issue a Summons
Witness and other fees associated with summons are linked here:
Witness Fees
(j) Exclusion of Evidence Where Non-Disclosure
The Board has discretionary disclosure authority [R19.1] [Ch.13, s.11 "Document Disclosure"]. Failure to abide by disclosure orders and direction may (and in the case of electronic material, 'shall') result in the subject evidence being excluded [R19.2-19.3].
6. Decisions, Reasons and Final Orders
(a) Overview
"Decisions", "Reasons" and "Orders" are obviously closely related, and are usually received by the parties at the same time, and in the same document: ie. the "Notice of Decision" (discussed below). However, legally the three things are distinct, and it can be important to recognize the differences between them as the terms are often used interchangeably.
This section addresses the required contents and formalities involved with Decisions and Reasons, and the general elements and structuring of Orders - including legal costs, fines, interest and instalments payments. The issue of when an Order is "final", thus triggering the availability of any rights of review and/or appeal, is covered in (d) below.
Also discussed in this chapter [s.7, below] is the closely-related topic of enforcement of Board Orders, the role of the sheriff's office and the court enforcement process - and the important "stay" provisions which can halt the enforcement of an Order pending the conclusion of review, appeal or similar proceedings.
General SPPA law applicable to Decisions, Reasons and Orders is discussed at this link:
Administrative Law (Ontario)(SPPA): Ch. 7: Orders
(b) Decisions
Conceptually, a "Decision" is the Board's conclusory statement on the primary issue alleged by the applicant (eg: "the tenant substantially interfered with the reasonable enjoyment" of the premises by other tenants). A "Decision" is thus the Board's overall conclusion: the culminating result of it's fact-findings based on the evidence heard, and of it's logical and legal reasoning. The "Decision" in any given application will be defined by what is alleged in the Application, and will typically be either an affirmation or a negation of those legal allegations.
This meaning of the term "Decision" however can get confused in light of other, related uses of the term in actual residential tenancy practice. That is, the Board is required by law to give a written "Decision" (and Order, see below) on an Application after it is heard [SPPA s.17(1); RTA s.208(1)]. Here what is often referred to as the "Decision" [or "Notice of Decision"] is in fact a written document containing both the "Decision" (as I have described it here) and the Orders issued by the Board as well.
Commonly, the Board will orally state its Decision and/or Order immediately after receiving final submissions of the parties (or after a short adjournment), with the written Decision and/or Order to follow later (in a "Notice of Decision"). Any significant delay in issuing a Decision and/or Order is called "reserving" the decision.
Note that parties can appeal "orders" [Act 210(1)].
(c) Reasons
. Overview
The detailed fact-findings, logical reasoning and legal reasoning that contribute to the making of the "Decision" are the Board's "Reasons for Decision" ('reasons'). Reasons should explain the treatment of the presented evidence, findings of fact based on that evidence, and the interaction of the facts with the law applicable to the case.
. Reasons Issued on Request of a Party: A Problem?
Obtaining 'reasons' is not usually a problem with tribunals in Ontario, some of them (eg. the Social Benefits Tribunal) issue them as a matter of course. But the LTB takes the view that whether they issues reasons or not is up to them, this despite the SPPA provision which reads:17(1)
A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party. The LTB Rules take the position that 'reasons' are still optional for them by this wording: "(t)he LTB will advise the requesting party in writing if the request [SS: for written reasons] is denied" [R22.2]. But the logic of it is thoroughout R22:
Rule 22: Orders and Reasons
The rule does embody a duty on the Board to issue reasons "for purposes of deciding a request for review" [R22.3], and when "reasons for an order under appeal" are required [R22.4]. This is good as far as it goes, but still not the unquestioned as-of-right to written reasons in SPPA s.17(1). The right to reasons with respect to an appeal only triggers "for an order under appeal" so a not-to-strict interpretation of the rule means that an appeal must be filed to justify the operation of R22.4 - ie. 'reasons' don't have to be provided until a party starts the appeal, which is some considerable effort and expense in the 30-day time window one has for appeals [Act 201(1)]. And the first thing any lawyer does when they get a request to consider appealing a LTB ruling is to ask the client for the 'reasons', the main basis of appeal.
The RTA provision on this issue may be to blame, as it reads:208(1)The Board shall send each party who participated in the proceeding, or the person who represented the party, a copy of its order, including the reasons if any have been given, ....
(2) Section 18 of the Statutory Powers Procedure Act does not apply to proceedings under this Act. But this SPPA exclusion [RTA 208(2), SPPA s.18] is all about service of the Notice of Decision, while the SPPA s.17(1) provision (which is not overridden in the RTA) is central to contents of the Decision. At most SPPA s.18(1) refers to "including the reasons if any have been given," to set out the service duty of the tribunal - ie. when written reasons are requested and prepared they must also be served. Any reliance on RTA 208(2) to avoid a duty to provide written reasons as-of-right to a party, is ill-founded. Indeed, natural justice would dictate just that conclusion.
I'd be interested in hearing party's experiences in this respect.Case Note: Khanna v Buchanan (Div Ct, 2009)
Failure of a Board to address key evidence from a party, and failure to set out the evidence and calculation grounding the granting of a rent abatement are appealable errors of law justifying the matter being sent back to the Board for re-hearing. Reasons must be adequate to allow appellate review. (d) Final Orders
. Overview
"Final" Orders are distinguished from "interim Orders" [see Ch.13, s.13: "General Board Procedures: Motions and Interim Orders"]. Interim Orders tend to relate to procedural matters while final Orders resolve the entire matter before the Board. The LTB may "make [both] interim decisions or orders" [R1.6].
The distinction is important because (generally) appeal rights only commence when a "final order" is issued [Act 210(1)]. Parties are generally expected to comply with interim Orders and only raise any problems with them at an appeal of the "final" Order.
"Orders" are what the Board provides as a practical remedy in response to the resolution of the Application - if it believes that one is called for at all (a favourable Decision does not automatically entitles the applicant to a favourable Order). The topic of "Orders" relates closely to that of remedial jurisdiction, which readers should review as well [see Ch.13, s.3(g): "General Board Procedures: Board Jurisdiction: Remedies"].
After an Application has been heard, the Board is legally required to issue a written Decision and Order [SPPA s.17(1)].
The typical Orders of the Board are of course such things as termination of tenancy, eviction a tenant, repairs by landlords, and monetary compensation [Act s.205(1)]. The availability of these various Orders are mentioned throughout the Legal Guide in relation to the various forms of landlord and tenant applications that are available. They are also discussed in more detail above [s.3(g) "Jurisdiction: Remedies" and Ch.16: "Civil Remedies"].
The Board also has broad authority to add conditions to its orders as it "considers fair in the circumstances." [Act s.204(1)], and to order such additional relief as orders for the payment of legal 'costs' between the parties, fines against parties, post-judgment interest, instalment payments, deduction from rent, etc. These topics are discussed below.
. Conditions on Orders
There are several ways in which the Board is authorized to place conditions on Orders: i. Ex Parte Application Conditions [Act s.78]
The first and primary one for tenants is that the Board may make the Order conditional and include a condition that breach (of that condition) enables the landlord to invoke the s.78 ex parte application process after breach, just as can be done with Board-mediated settlements [see Ch.8, s.3: "Other Termination Procedures: Ex Parte Applications on Breach of Mediated Settlement or Conditional Orders"].
Imposition of the s.78 procedures usually involve serious loss of tenant protections under the Act, and the subject should be reviewed carefully.
ii. General Conditions Jurisdiction
There is a general Board authority to place conditions on its Orders (without necessarily invoking the s.78 procedures) [Act s.204(1)] that it "considers fair in the circumstances".Case Note: Beboning v Wigwamen Inc (Div Ct, 2008)
The court upheld the Board's authority under RTA s.204 to issue an order conditional on the tenant attending an "alcohol withdrawal program". iii. Delayed Enforcement of Evictions
There is also an express provision [Act s.83(1)(b)] authorizing the Board to delay the enforceability of eviction orders at its discretion [see Ch.9, s.5(b): "Termination Defences: Positive Defences: "Relief from Forfeiture"]. While the previous legislation imposed a standard 10-day delay on some such Orders, now any delay is entirely discretionary to the Board.
iv. Instalments for Retroactive Above-Guideline Rent Increases
Where the Board has authority to make any rent increase above the guideline three month's or more retroactively (ie. effective three months or more before the Order), then it may spread any retroactive 'make-up payments' over a maximum of 12 months [Act s.205(2)].
v. Rent Set-Off of Money Orders
Where the Board orders payment of monetary compensation from a landlord to a current tenant, it may also order that - in the event of non-payment by the set due date - that the tenant may deduct fixed amounts from rent payments for a specified number of rental periods [Act s.207(5)]. Such an order does not however restrict the right of the tenant to otherwise collect on the order [Act s.207(6); see "Enforcement", below]. . Administrative Fines
There are several instances where the Board is authorized to make ancillary Orders within applications for the imposition of administrative fines on landlords, to a maximum of $10,000. These are distinct from any court-ordered fines resulting from prosecutions [see Ch.17: "Offences"].
Fines may be ordered (with or without being requested by the applicant) at the discretion of the Board, and after the hearing of submissions by the parties on the issue [IG 16].
Applications which can involve such fines include:- tenant's rights applications [see Ch.3, s.5: "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications"] under Act s.31;
Interpretation Guideline 6: "Tenant's Rights", sets out the Board's criteria as to when administrative fines are merited in tenant's rights applications [see Ch.3, s.5]:
An administrative fine is a remedy to be used by the Board to encourage compliance with the RTA and to deter landlords, superintendents and agents from engaging in similar actions in the future. This remedy is appropriate in serious cases where the landlord has shown a blatant disregard for the RTA and other remedies will not provide adequate deterrence and compliance.
- abandoned property violations [see Ch.8, s.4: "Other Termination Procedures: Tenant Property"] under Act s.41(6)4;
- bad faith terminations [see Ch.5, s.4: "Regular Landlord Terminations: Former Tenant's Application Where Bad Faith Termination etc"] under Act s.57(3)3;
- "Failure to Provide Rent Increase Restriction Notice to New Tenant" [see Ch.12, s.6: "Other Rent Proceedings: "Serious Breach" Rent Increase Restriction Orders and New Tenants"] under Act s.115(3).
Failure of a party to comply with Board Orders requiring payment of a fine, fee or costs to another party may also justify the Board refusing further application materials from that party [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].
Interpretation Guideline 16, linked here, sets out the Board's position as to when - generally - such administrative fines are merited ("blatant disregard"):
Interpretation Guideline 16: Administrative Fines
Interpretation Guideline 16, quoted here, explains the Board's anticipated use of "conditional fines" in interim procedural matters, to encourage compliance: A Member may impose a conditional fine in an interim order to encourage compliance with the RTA. For example, a Member may order a fine for each day that the landlord fails to comply with a term or condition in the interim order, such as putting an illegally evicted tenant back into possession. The interim order should state precisely what the landlord is required to do and the consequences of failing to comply. The total amount of the fine, if any, should be set out in the final order based on the relevant circumstances as discussed at the hearing. . Party Costs and "Board" Costs
"Costs" refers to the jurisdiction of a tribunal or court to order that a party to a proceeding pay all (rarely) or part (more often) of another party's legal "costs" - which generally include Board filing fees, disbursements and legal representation fees (lawyers and paralegals).
All parties participating in the application hearing will be given an oppourtunity to make submissions on the issue of costs at the end of the hearing. In civil litigation this is done after the primary ruling in the case is given, so that parties can expose any unaccepted settlement offers at that time (as a way of demonstrating "reasonableness" so as to gain the court's favour on the costs issue).
While recent amendments to the Statutory Powers Procedures Act (SPPA), have given tribunals (including the Board) express authority to make rules for the awarding of costs, the Board's primary costs authority is derived from s.204(2-4) of the RTA, which is paramount due an express override of the SPPA provisions [RTA s.204(5)].
The cost Rule is linked here [R23]:
Rule 23: Costs
Rule 23 sets out:- approval for awarding the Board application fee to the successful party in most cases [R23.1];
- that where a party has engaged in "unreasonable conduct which causes undue delay or expense", legal fees and disbursements may be ordered. Legal fees may be be awarded, to the extent of such conduct, at a maximum hourly rate of $100 for lawyers or paid agents to a maximum of $700 [R23.2-23.3];
- that any cost awards for the Board's costs payable by a party or their representative shall not exceed $100/hour, to a maximum of $700. "The LTB will not order a paid representative to pay its costs unless those costs result from the paid representative's conduct" [R23.4-23.5].
Interpretation Guideline 3 elaborates on these principles, setting out some exceptions and additional criteria relating to behaviour:
Interpretation Guideline 3: Costs
In a significant variation from normal costs practices (ie. in other tribunals and courts), the Board has authority to order that "it's (ie. the Board's) own costs of a proceeding be paid by a party or a party's paid representative." [Act s.204(3)].
As to the interpretation of this provision for the payment of "Board costs", the IG states:A Member has the discretion to order a party or their agent or legal representative to pay the costs of the Board. This power, however, should be used sparingly. It was not the intent of the Legislature that this power should ever be used to obtain cost recovery for salaries, administration or other expenses of the Board.
In those rare situations in which a party or their agent or legal representative is responsible for unreasonable conduct, this power allows the Board to accomplish two objectives:- recover some of the public's monies which funded the proceedings, and
- discourage inappropriate practices and conduct by parties and parties' agents and legal representatives.
Failure of a party to comply with Board Orders requiring payment of a fine, fee or costs to another party may justify the Board refusing further application materials from that party [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].
. Post-Judgment Interest
"Post-judgment interest" is interest accruing on the principle amount of a money Order that remains unpaid after a reasonable, standard period (commonly 30 days) has passed to pay it. There is a slight superficial conflict between two legal legislative sources on the issue of post-judgment interest.
Firstly, the Statutory Powers Procedures Act (SPPA) requires that "(a) tribunal that makes an order for the payment of money shall [emphasis added] set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated" [SPPA s.17(2)].
On the other hand, the RTA states that "(t)he Board may [emphasis added] set a date on which payment of money ordered by the Board must be made and interest shall accrue on money owing only after that date at the post-judgment interest rate under section 127 of the Courts of Justice Act". [Act s.207(7)].
While there is no express RTA override of SPPA s.17 (such as would be required to avoid it under the SPPA s.32 override provision), they may be read compatibly as follows:- the Board must add post-judgment interest to money orders;
- the Board must set a date at which interest starts to accrue (a "due date"), but has discretion as to when this date is; and
- the rate of interest shall be as per the court's rate (see below).
Post-Judgment Interest Rates (be careful to distinguish post-judgment rate from pre-judgment rates at this link)
Essentially then, post-judgment interest is a "right" on any money Order, though the date at which interest starts to accrue is at the discretion of the Board.
The calculation of post-judgment interest is usually a simple arithmetic task. For purposes of enforcement, the court enforcement forms will require that the calculation be set out as per principal, interest rates, time elapsed, payments made and total interest owing.
(e) Service of Notice of Decision
A "Notice of Decision" contains the written Decision, Reasons (if any are issued) and Order [SPPA s.17(1), Act s.208(1)] (all of which are discussed above) which constitute the Board's final resolution of an application.
Just as with the service of a Notice of Hearing, the service of a Notice of Decision is of primary importance to the interests of any party effected by it. Besides informing the parties of their rights and duties stemming from the hearing, the 'issuance' (or 'service', it's variable) of a "final" (not interim) Notice of Decision usually triggers the "running" of any review and appeal time periods [see Ch.15]. Technically, these time periods start to run with the issuance of the 'order', but this is almost always coincident with the Notice of Decision.
Legally, the standard service provisions set out in the SPPA [s.18], which normally govern the service of the Notice of Decision by tribunals, are overridden [RTA s.208(2)] and replaced by the standard RTA service provisions [see Ch.13, s.8(b): General Board Procedures: Service and Filing of Documents: Service on Parties"] [these are personal service and mail: RTA s.191].
As well [under RTA s.208(1)], this service duty is only owed by the Board to parties "who participated in the proceeding, or the person who represented the party". The Board Rules read on this issue [R22.1]:22.1
A copy of the LTB's order and any reasons will be sent to each party by:
. mail to the last known address of each party;
. mail to the representative of the party; or
. any other method directed or permitted by the LTB. Mail service is "deemed" to be received on the fifth day after mailing [Act s.191(3)].
(f) Amending Orders
The SPPA grants all of it's tribunals general authority to amend Orders for typographical errors, errors of calculation and other minor uncontentious changes [SPPA s.21.1]. Note that this authority is distinct from the authority of the Board to "review" more serious (alleged) "errors" in it's Orders [see Ch.15: "Reviews and Court Appeals"].
This amendment authority is discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide at this link:
Administrative Law (Ontario)(SPPA): Ch.7, s.5: Orders: Variation of Orders
Interpretation Guideline 15: Amending an Order
The Board's standard form for requesting an Amendment to an Order is linked here:
Request to Amend an Order
The Board Rules bearing on amending orders for clerical errors are here:- "(a) party to an order or any person directly affected by the order may request the LTB to correct a clerical error in an order within 30 days from the date the order or decision is issued" [R24.1];
- "(t)he LTB may amend an order to correct a clerical error on its own initiative without seeking submissions from the parties or holding a hearing" [R24.2];
- "(i)f an order is amended to correct a clerical error, the LTB may also amend or update other provisions of the order as necessary" [R24.3].
Requests must [R24.5]:- be in writing and signed by the person making the request;
- include the LTB file number, the address of the rental unit, member unit or residential complex, the requestor's name and complete contact information; and
- identify precisely the amendment requested.
Procedures for the issuance and filing of "stays" (suspensions) of Orders pending the outcome of Requests to Amend are discussed in s.7(f) ["Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement: Stays"], below.
7. Enforcement and Stays of Enforcement
(a) Overview
Applicants unfamiliar with legal proceedings are sometimes under the unfortunate illusion that the issuance of a legal order against another party will magically result in the vindication of the applicant's legal rights. In reality, a successful Order is only another stage in the process.
Some enforcement issues are simple - for example: Orders "terminating" tenancies are in the nature of legal declarations ending tenancy agreements, and need no additional enforcement. On the other hand, eviction Orders require definite physical acts to be truly 'satisfied', and involve using the services of the local sheriff's office. Alternatively, enforcing money orders involves filing Board Orders with the appropriate court and using any of it's several enforcement procedures. There are other examples.
Basic issues of enforcement of administrative tribunal Orders are discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide at this link:
Administrative Law (Ontario)(SPPA): Ch.8: Enforcement
As well, the availability of an array of procedures for setting aside, amending, reviewing and appealing Orders necessitates additional varied procedures to block the enforceability of the subject Order pending the outcome of the variation processes. These are generally known as "stays", or temporary suspensions of the enforceability of the subject Order.
The "enforcement" of Orders is as varied a topic as the types of Orders that the Board can issue, and can involve a variety of institutions. These are considered in turn below.
(b) Terminations
Any party (almost always a landlord) seeking to re-possess rented premises will almost always seek orders both "terminating a tenancy" and "evicting the tenant". It is important to understand why these two separate orders are usually required, when on first glance what is more fundamentally being sought is the eviction.
First note that, as was discussed earlier [Ch.4, s.2: "Termination Fundamentals: Notices of Termination"], that a Board Order terminating a tenancy can be viewed as the Board's confirmation of the termination (and "date of termination") set out in the initial Notice of Termination which commenced the whole process. Second note that it is not the "tenant" who is being terminated, it is the "tenancy" or the "tenancy agreement".
By way of illustration, recall that when a landlord is making an application to evict an "overholding sub-tenant" from premises [see Ch.8, s.2: "Other Termination Procedures: Application to Evict an Overholding Sub-tenant"], they do not have to get an Order "terminating" the tenancy as well - because there was no tenancy between those parties [though there is (or was) one between the main tenant and landlord].
These two points highlight the nature of a Board order of "termination". It is essentially what is known in civil law as a "declaration" - here a "declaration" that the tenancy is legally at an end. It is equivalent of A going to court in a contract dispute to get the court to confirm that, as of such-and-such a date, A's contract with B is ended (rescission) and from that point forward A owes no further contractual obligations to B. It is a highly useful legal determination clarifying the respective duties of the parties, and it is also a logical thing to require a landlord to obtain when they are seeking re-possession of the rental unit.
As there is nothing to enforce from a termination, there is - technically - no need for a "stay" to block it pending the outcome of any review or appeal proceedings. If it is going to be reversed this will be done in the course of the review or appeal.
(c) Eviction
Formerly know as a 'writ of possession', an 'eviction Order' on the other hand is a more concrete and enforceable thing [Act s.85]. Eviction orders are enforced (also called "executed") by being filed with the sheriff's office (now called the Court Enforcement Office) [Execution Act, s.21], and paying the required fees.
Sheriff policies and practices are largely a function of the particular caseload, policies and discretion of the local sheriff's office. Tenants facing eviction are best advised to communicate closely with that office shortly after the eviction order is issued (ie. as soon as the landlord can file the eviction Order with the sheriff).
Recall as well that the enforceability of eviction orders can be delayed at the discretion of the Board [see s.6(d): "Decisions, Reasons and Final Orders: Final Orders", above], though there is no fixed rule as to how long - or even if - the Order will be delayed.
Recall as well that some eviction orders (based on serious issues such as drug-related illegal acts and safety concerns) may be subject to special Board "requests" to be expedited [see Ch.6: "Early Termination for Cause" - ss.2(d), 3(c), 4(d), and 5(d)].
Eviction orders "expire" six months after becoming effective if they are not filed for enforcement within that time [Act s.81]. Landlords seeking to obtain a "fresh" eviction Order would have to rely on new grounds to terminate and evict, as recourse to the previous Order would be barred by the principle of res judicata (causes of action already litigated may not be re-litigated).
(d) Monetary Compensation
Unpaid monetary compensation Orders may be enforced by filing a Board-certified copy of the Order with the local Small Claims Court (Orders of $25,000 or less), and using the available enforcement procedures of that court [SPPA s.19(1)].
These are explained at this Isthatlegal.ca link:
Small Claims Court: Collection
In the rare case where an Order has a monetary value greater than $25,000 it may be filed for enforcement in the Superior Court of Justice. Procedures for such enforcements are not covered in this Legal Guide but the applicable Court Rules are linked here [you'll have to scroll down to R60]:
Rules of Civil Procedure, R60: Enforcement
The Board must be served with notice that such a court filing has taken place within 10 days after filing [SPPA s.19(2)].
While the landlord's common law right of "distress" (seizure of property against tenant debts owing) is abolished [Act s.40], there is a limited ability of the landlord to apply the realized sale value of left or abandoned chattel property in set-off against arrears owing them [see Ch.8, s.4: "Other Termination Procedures: Tenant Property"].
(e) Other Enforceability Issues
Some other Orders are internally enforced within the Board process itself.
Consider "administrative fines" as an example [see c.6(d): "Decisions, Reasons and Final Orders: Final Orders: Administrative Fines", above]. Failure of a party to comply with Board Orders requiring payment of a fine, fee or 'Board' costs may justify the Board refusing further applications from that party [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].
Further, Board Orders restricting rent increases [see Ch.3, s.5(c): "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications: Serious Breach Orders"] are 'naturally' enforceable within the normal L&T relationship, backed up by the Board's determination of what the legal rent is (or isn't).
(f) Stays and Related
. Overview
As noted above, "stays" are usually temporary suspensions of Board Orders put in place to prevent enforceability of the Order during the resolution of any of several processes which are available to vary or reverse an order. These different processes, whose stay provisions are considered below in turn, can include: 'Set Aside motions', 'Requests to Amend Orders', 'Review of Orders' and Court appeals - and the procedure may not only be called a "stay".
Stays and related can be legally brought about by various means, of which a Board Order is just one. In the LTB regime the methods are by Order (two types), a notice and also simply by filing a set aside motion. In all cases but one [the only exception being a landlord's non-payment of rent set aside under Act 74(9)], the act which brings about the stay must be filed with the Court Enforcement Office (aka the sheriff's office) by the party (invariably the tenant) who initiates it (if the tenant does not do this, the underlying Order will not be stayed):- "(t)he party who files a set aside motion must immediately take a copy of the motion, the Notice of Hearing and Stay to the Court Enforcement Office" [R25.1];
- "(i)f the LTB issues a notice or an order which confirms that an eviction order is void, the tenant must immediately take a copy of the notice or order to the Court Enforcement Office" [R25.2]; and
- "(i)f the LTB issues an order staying an earlier order, the party who asked to stay the earlier order must immediately take a copy of the order staying it to the Court Enforcement Office" [R25.3].
These processes are almost always time-pressured and crucial for the tenant involved.
. Set Aside Motions and Related
A "set aside" motion is commonly used to reverse a termination and eviction Order that has been achieved under an ex parte (without notice) application. There are three types of situations under the RTA where set aside motions or similar proceedings may occur:- Ex parte Applications to Re-open Termination and Eviction Proceedings after Mediated Settlement or Conditional Order under RTA s.78 [see Ch.8, s.3]
The filing of a motion to set aside an Order of termination and eviction resulting from an ex parte application under s.78 stays the Order being reviewed [Act s.78(10)].
- Set Aside Motions in Non-Payment of Rent Terminations [see Ch.7: "Non-Payment of Rent Termination", esp s.7(d,e)]
Terminations for non-payment of rent may generally be avoided by paying the arrears of rent plus some additional accruing charges. Where a tenant makes such a "catch-up payment", particularly at the later stages of the s.74 eviction process either the Board staff is required to issue to the tenant a notice that the original termination and eviction Order is void, or the Board to issue an order that the original Order is void. These provisions are complex.
- Terminations Based on Tenant's Notice of Termination or Agreement to Terminate under RTA s.77 [see Ch.4, s.3]
The filing of a motion to set aside an Order of termination and eviction resulting from an ex parte application under s.77 stays the Order being reviewed [Act s.77(7)].
. Amendments to Orders
The procedure for correcting typographical errors, errors of calculation and other minor uncontentious changes in Orders is discussed in s.6(f) above. In some cases where this is being done, it may be necessary to obtain a stay to prevent enforcement of the Order on its existing (pre-change) terms.
When an amendment of an Order is requested, stays may be brought about by (and revoked by) the initiative of the Board alone, "without obtaining submissions from any party or holding a hearing" [R24.4], or by a written party request which shall "identify the prejudice the party will experience if the order is not stayed" [R24.6].
. Reviews
Procedures for commencing a "Review" of an Order are covered in Ch.15: "Reviews and Court Appeals".
There are procedures for written requests for a "stay" as part of the review request or at any point in the review process. A party seeking a stay must describe the prejudice (harm) to their situation if no stay is issued [R26.10]. Stays may be imposed or lifted at anytime by the Board itself without hearing and without seeking submissions or holding a hearing [R26.11].
The LTB may include conditions in its order staying or lifting a stay [R26.11], which may include that the respondent tenant pay monies to the Board as security in case of the upholding of the original Order.
As well, in order to conduct a Review, the Board may lift any stay brought by operation of law as the result of a Court Appeal being filed [SPPA s.25(1)] [see "Court Appeals", below].
If the Review is dismissed, the Board will lift any stay and confirm the order under review [R26.14].
. Court Appeals
A Court appeal from an administrative tribunal Order results in an automatic stay of the subject Order [see Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial Review], subject to the court's (or the board's) authority to lift them [SPPA s.25(1)].
Note that the Board takes the view that the existence of a court stay prevents it from conducting a 'Review' of the subject Order (above), which can lead to complications when both procedures are being conducted simultaneously. As such, in order to conduct a Review, the Board may lift any stay brought about by a Court appeal [SPPA 25(1)(b)].
. Judicial Reviews
"Judicial reviews" are court proceedings used where statutory court appeals (as above) are unavailable [see Ch.15: "Reviews and Court Appeals"].
While stays are not automatically available on the filing of an Application for Judicial Review, they may be requested from the court on motion. The procedures for this are beyond the scope of this Legal Guide.
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