Landlord and Tenant Board
My philosophy is simple. I take steps my competitor’s don’t do to save my client’s time and money.
Marshall Yarmus – Owner of Civil Litigations
If you fill out a notice of termination incorrectly or do not present your evidence properly to the board adjudicator, you may lose your case.
Your chances of being successful are greatly increased if you are represented by an experienced paralegal. The Residential Tenancies Act is so complex it is difficult to understand for landlords, tenants, and even inexperienced legal professionals. Unlike when you represent yourself, you also protected if your paralegal is negligent if that negligence causes you to lose your case.
Why you Need a Paralegal
Every practicing paralegal in Ontario is required to carry errors and omissions insurance to protect you. If a paralegal is negligent and you suffer damages as a result you can sue the paralegal knowing that he or she must carry, at a minimum, a million dollars insurance per claim made against them for negligence. For more information on paralegal insurance, training, continuing legal education requirement, disciplinary record, and more contact our regulator – The Law Society of Ontario https://lso.ca/
If you make an error representing yourself it may cost you thousands of dollars in lost rent, or damages to property. You will have no one to look to for the extra time it will take to evict, or the money damages you suffered.
How can one of our paralegals help you?At Civil Litigations our paralegals can determine the proper notices of termination to be given, fill out the notices properly, make sure the notices are served in accordance with the rules of the board, prepare the appropriate applications, and represent you at the hearing. Please contact us to make an appointment to discuss your particular needs in person.
The board adjudicators must decide cases based on the facts as well as the law. One form of law is statute law. These are the laws set out in the Residential Tenancies Act (RTA), its regulations, and municipal by-laws.
Another form of law is case law. There are three levels of appeals courts. There is the Divisional Court, the Court of Appeal of Ontario, and the Supreme Court of Canada.
Decisions of any of the appeal courts in determining the law are binding on the Landlord and Tenant Board, unless a higher level appeals court ruled differently.
Landlord and Tenant Board adjudicators are required to decide cases the same way as the appeals courts have on the same set of facts. Our paralegals know the most important cases which have been decided by the appeal courts. Our paralegals are constantly learning by reading new case law every week. Your paralegal can submit to the board adjudicator the cases and make arguments why the board adjudicator must decide the case in your favour.
Case law also comes in another form. There are persuasive cases that your paralegal can rely on. Your legal representative in the Landlord and Tenant Board can present cases decided by other Landlord and Tenant Board adjudicators that have common facts. These are used to try to persuade a board adjudicator that a prior ruling by the board on the same or similar issues was reasonable and should be followed.
A board adjudicator is not required to rule the same way another board adjudicator ruled even if the facts are the same. You can search case law for free at www.Canlii.org
A Landlord may only evict a tenant for one of the reasons set out in the RTA. Things such as a lease having expired are not relevant in the eviction process. If a lease ends, the tenancy automatically renews on a month to month basis – indefinitely.
How will the Landlord and Tenant Board decide my case? Another way to determine how cases will be decided is to the Landlord and Tenant Interpretation Guidelines. They set out information on how the board generally decides certain types of applications. The board adjudicator hearing your case may decide the matter differently. However, the Interpretations Guidelines give you some insight as to what the board will consider.
Most landlord applications are preceded by the landlord or their paralegal having to serve a Notice of Termination on the tenant in advance of filing an application. These notice forms such as N4, N5, N6, and N7 must be completed properly. The Divisional Court case of Ball v. Metro Capital dealt with an N5 notice being served on a tenant.
The Divisional Court in Ball v. Metro Capital reviewed how voidable Notices of Termination work and how important it is for the Notice of Termination to be clear. The Court highlights that a Notice of Termination, like an N5, must be clear and provide the tenant with the necessary information that the tenant needs to void the Notice. If clear information is not provided within the notice, then the Notice of Termination would be considered flawed. The effect of a finding that the N5 was not legally valid would be that the Application to Evict the Tenant would be dismissed by the Landlord and Tenant Board.
The Divisional Court case of Kuzyk v. SK Properties found that if a Notice of Termination is confusing to the degree that a reasonable person could not understand precisely what it means, a Member would find it defective. No eviction can flow from a defective Notice of Termination.
Rental Enforcement Unit
The Ontario Ministry of Housing runs the Rental Housing Enforcement Unit. This body is separate from the Landlord and Tenant Board. They deal with violations of the RTA. You can file a complaint free of charge if for example: the landlord locks the Tenant out or the Tenant refuses to allow the landlord entry to the rental unit after the proper 24 hours notice has been given. For more information follow this link http://www.mah.gov.on.ca/page142.aspx or call 416-585-7214 or toll-free 1-888-772-9277
Here is just a few important sections of the Residential Tenancies Act you should be aware of are:
Residential Tenancies Act Section 3
What can a landlord and tenant agree to?
Landlords and Tenants cannot waive their legal right they have under the Act. If there is a conflict between rights and responsibilities in a lease versus those in the RTA, the RTA prevails.
Common examples of lease terms that unenforceable are no pet clauses, and clauses that require a tenant to make repairs to the rental unit.
Residential Tenancies Act Section 5
What Tenancies Are not Covered by the Residential Tenancies Act
Not all tenancies are covered by the Residential Tenancies Act. The most common exemption is where a landlord and tenant are required to share either a kitchen or bathroom.
If the RTA does not apply it only means the Landlord and Tenant Board has no authority to make an order. Tenants still have rights. They may be different rights then those found in the RTA.
Residential Tenancies Act Section 82
Issues a Tenant can Raise on a Non-Payment of Rent Application
The tenant can raise any issue at a non-payment of rent application that they could if they filed their own application. They do not have to give the landlord notice of their intent to raise these issues. If the tenant is successful in arguing their issues, the tenant is entitled to any remedy they could get if they filed their own application. One remedy a tenant can ask for is an abatement of rent. The tenant can seek a portion of the rent they paid returned to them or a portion of the monthly credited against any rent which is owed.
Residential Tenancies Act Section 83
Should the Landlord and Tenant Board Delay or Deny an Eviction?
On every eviction application the board adjudicator must consider all the circumstances before deciding whether to delay or deny an eviction. This is in the discussion of the board adjudicator.
There are situations where the board adjudicator is required to refuse an eviction. These mandatory refusals of eviction happen where the board finds:
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.
Review of Landlord and Tenant Board Orders
If a board order “contains a serious error” it MAY be reviewed by the board. (See the Landlord and Tenant Board’s Interpretation Guideline8 for more information.)http://www.sjto.gov.on.ca/documents/ltb/Interpretation%20Guidelines/08%20-%20Review%20of%20an%20Order.html
If a party did not attend a hearing, and has a very good reason why they could not participate in the hearing the board may grant the review and order a new hearing.
A review is not an appeal or an opportunity to change the way a case was presented.
The purpose of the review process is not to provide parties with an opportunity of presenting a better or different case than they did at first instance. There is nothing in the record or in the request for review to support a determination that the Member applied improper principles in assessing the evidence introduced or that there was insufficient evidence before the Board to support its conclusions. I would not interfere with the assessment of the evidence by the Member of first instance, who had the opportunity of observing the witnesses and of hearing the evidence in its totality.
Serious errors include:
- An error of jurisdiction. For example the order relies on the wrong section of the RTA or exceeds the LTB’s powers. This issue need not have been raised in the original hearing;
- A procedural error which raises issues of natural justice;
- An unreasonable finding of fact on a material issue which would potentially change the result of the order;
- New evidence which was unavailable at the time of the hearing and which is potentially determinative of one or more central issues in dispute;
- An error in law. The LTB will not exercise its discretion to review an order interpreting the RTA unless the interpretation conflicts with a binding decision of the Courts or is clearly wrong and unreasonable; and ,
- An unreasonable exercise of discretion which results in an order outside the usual range of remedies or results and where there are no reasons explaining the result.
Landlord and Tenant Board Staff
Section 4.5 of the Statutory Power Procedure Act allows staff members at the LTB to refuse to accept a document to commence a proceeding.
Customer service staff at the board are permitted give out general information about the RTA. However, LTB staff cannot and should not give you legal advice. Only a lawyer or paralegal has the legal knowledge, training, and authority to properly interpret the statute and case law, and give legal advice about an LTB proceeding.
Those people who get a staff member to give a legal opinion, despite the fact staff lack the knowledge and authority do so, may regret it later. A staff member is just likely as you to interpret the law incorrectly or be unaware of important case law.
If you have general questions about LTB forms, or need general information about the RTA you may call the Landlord and Tenant Board at 416-645-8080 or 1-888-332-3234. You can visit the LTB website at http://www.sjto.gov.on.ca/ltb/
If you need legal advice, preparation of notices, applications, representation at hearings, filing with the sheriff, or judgment enforcement, then call our office at 416-229-1479 and make an appointment to hire us.