Delays Delays Delays!
As a social justice tribunal, the Landlord and Tenant Board (the “LTB”) seeks to uphold the rights and obligations of both landlords and tenants in Ontario. Governed by the Residential Tenancies Act, the LTB hears matters related to terminations, maintenance obligations, and rent abatement, among other things. Despite the fundamental importance of the LTB in upholding these rights, the LTB has, in recent years, become associated with negative connotations regarding a) bias in favour of tenant rights and b) serious delay. Not so much suggestions as they are quantifiable fact, the implications of the LTB’s shortcomings in this regard are far-reaching and have seriously impacted access to justice for individuals, especially those in the Toronto region where the housing market has exploded in recent years.
The sad reality is such that, at a time when the services of the LTB are most needed in Toronto, it has become abundantly clear that the LTB is simply not equipped to uphold the very service standards that it has established for itself. Our firm recently worked on an LTB case in which the landlord, having lost their spouse, endeavoured to sell their Toronto property in order to stabilize an increasingly difficult financial situation. Unfortunately, the tenant in the property refused to vacate despite being properly served with an N12 ‘Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit’ pursuant to section 49 of the RTA in May 2019. Once the LTB application was filed in June 2019, the hearing was ultimately scheduled for two months later, in September 2019, and then postponed to October 2019. This was in direct contravention to the LTB’s service standard regarding scheduling hearings within 30 business days. Once the hearing was finally held, the decision was not rendered until three months later in January 2020 despite the LTB’s service standard regarding issuing orders within 10 business days of a hearing. Notwithstanding this considerable delay, a review hearing was scheduled for April 2020 on insufficient grounds which was then cancelled due to the COVID-19 pandemic. In total, it has been 11 months since the tenant was served with the N12 and the landlord is no closer to having this matter resolved nor are they nearer to closing on the sale of their property.
Cases such as the one described above illustrate the very real difficulties that Toronto landlords are currently facing due to the delays at the LTB. In January 2020, and in response to the more than 200 complaints that Ombudsman Ontario received in the 2018-2019 fiscal year, Ontario Ombudsman John Dubé formally announced an investigation into the delays at the LTB.[1]
This article will examine the 2018-2019 LTB statistics released by the Social Justice Tribunals of Ontario (the “SJTO”) in an effort to provide some insight into why the LTB has garnered a reputation for being biased towards tenant interests, much to the detriment of landlords. In light of these statistics, this article will also seek to shed some light on the possible ways in which the LTB can improve its practices and procedures in order to reduce the serious backlog that it is currently facing.
An annual report released by the SJTO in 2018-2019 demonstrated that there were 82,095 applications received by the LTB in that fiscal year.[2] Of those 82,095 applications, 73,738 were submitted by landlords. In contrast, there were only 8,357 applications submitted by tenants. A more in depth look at these numbers reveals that 62.4% of landlord applications in 2018-2019 involved applications “to terminate and evict for non-payment of rent” whereas the remaining 37.5% were spread over 12 application categories.
The staggering difference between these numbers, coupled with the characterization of Toronto’s rental market as one that strongly favours homeowners and landlords, provides some insight into why the LTB’s policies have been increasingly tenant-focused over the last several years. It is clear that landlords make up the overwhelming majority of applications to the LTB. It is also clear that most of these applications involve applications to terminate and evict for non-payment of rent. Perhaps one option to reduce the backlog at the LTB, then, might involve the implementation of a two-streamed intake process wherein applications related to evictions for non-payment of rent could be dealt with in one stream with the remaining landlord applications dealt with in a second stream. This would allow the LTB to quickly deal with those matters that are not as serious such as “tenant changed the locks” while freeing up adjudicators to deal with those matters that are much more prevalent and time-consuming.
Given the fact that landlords are overwhelmingly applying to the LTB for relief, it goes without saying that landlords are also disproportionately affected by the ‘request to review’ option in which a party can request a review of a final order issued by the LTB. According to the 2018-2019 report by the SJTO, 77% of those decisions in which a request for review based on a “serious error” was filed with the LTB ended up being granted. This figure coupled with the current delays at the LTB is very troubling.
It is also troubling that the “serious error” ground for review appears to be very open to interpretation at the LTB. One glance at the LTB’s review process reveals an open-ended list of criteria citing review grounds such as “an unreasonable finding of fact on a material issue which would potentially change the result of the order”. Terms such as “unreasonable” and “potentially” and “material issue” are not defined by the LTB nor have they been carved out within a test through tribunal jurisprudence. This is unacceptable at a time when the LTB is seeing unprecedented levels of delay and it further exasperates the claim that the LTB is heavily swayed in favour of tenant rights over landlord rights.
By way of providing a comparison, although Vancouver has also seen a crisis of sorts in its housing market similarly to Toronto, British Columbia’s Residential Tenancy Branch has established much more clear-cut and specific criteria for when a final order can be reviewed. An order shall only be reviewed at the Residential Tenancy Branch if a party falls into one of three categories: 1) new evidence, 2) unable to attend, or 3) fraud.[3] Furthermore, each category provides specific criteria that must be met in order for that ground to be triggered. This is in stark contrast to the LTB which has a list of six open-ended criteria under a bullet point entitled “serious error includes”. In order to promote consistency, fairness, and accountability, the LTB must formulate a concrete test for “serious error” or at least provide some clarification on the criteria that it currently considers.
The suggestions eluded to above are, of course, inconsistent with the current state of the LTB in which many vacant adjudicator spots have remained unfilled for quite some time. I January 2020, Tribunals Ontario officials stated that 39 adjudicators were currently appointed to the LTB, but only 28 of them were actively hearing cases. In April 2018, the LTB had 49 adjudicators. People familiar with the board’s workings say a full complement would be 55 to 60 adjudicators. Although the government has recently extended the contract of some adjudicators and recruited others, this has clearly not been sufficient to fully address the issue. What is therefore needed in conjunction with the filling of vacant adjudicator positions is a complete review of the LTB’s practices and procedures from the ground up.
The Ontario Ombudsman has committed to conducting a thorough investigation into the delays, in order to determine the reasons behind the delays. Specifically, the office will be looking into legislation, training of staff, funding, and available technology. We are hopeful that this investigation will bring some much needed relief to the LTB as well as to the thousands of landlords and tenants who are relying on the LTB for access to justice.
[1] Ontario Ombudsman to Investigate Delays at Landlord and Tenant Board
[2] Tribunals Ontario: Annual Report 2018-19
[3] Review, Clarify or Correct a Decision or Order – Province of British Columbia