Can You Stop Multiple LTB Applications By a “Vexatious” Tenant? Yes! (But it Requires Planning…)

November 2015

Rent Control Bulletin

Some tenants derive personal (and sometimes financial) satisfaction from filing multiple Landlord and Tenant Board (LTB) applications, making groundless allegations against their landlord. Even though the applications are without merit, they are expensive and time consuming to defend and in the case of vindictive, “vexatious” tenants who file multiple applications as a form of entertainment, the costs can be substantial. The LTB rarely orders tenants to pay the landlord’s costs, and even when it does, the cost awards are nominal.

So what can a Landlord do to limit legal costs, wasted time, and uncertainty due to multiple applications filed by a vexatious tenant? A solution lies in Rule A8 of the Social Justice Tribunals of Ontario’s Common Rules, which form part of the LTB’s Rules of Practice (the “Rules“).

Rule A8 deals with “abuse of process”. Rule A8.2, in particular, allows the LTB to declare a tenant to be a “vexatious litigant”; dismiss the application as an abuse of process; and, require the vexatious litigant to obtain special permission from the LTB before s/he can file any new Application, or take any further steps in an outstanding application.

In a recent case, the LTB reviewed a tenant application, as well as previous applications filed by the same tenant, and applied Rule A8.2 in concluding the tenant was a vexatious litigant (here is the link to the case). The LTB did not just look at the number of prior “frivolous” applications filed by the tenant, but also whether the Tenant conducted herself in a vexatious (ie: abusive) manner in other proceedings at the LTB. The following factors were considered in determining that the tenant was a vexatious litigant:

(a) Bringing one or more proceedings to determine an issue which has already been determined by a court or tribunal of competent jurisdiction is a vexatious proceeding;

(b) Where it is obvious that an action cannot success, or if not person can reasonably expect to obtain relief, the proceeding is vexatious;

(c) Proceedings brought for improper purposes (i.e. any purpose other than to assert legitimate rights) are vexatious; and

(d) Persistently filing unsuccessful Review Requests can be considered vexatious.

The LTB in the case at hand concluded:

“In order to declare the Tenant to be a vexatious litigant, I must be satisfied on an objective standard that the applicant has persistently and without reasonable grounds instituted vexatious proceedings or conducted herself in a vexatious manner during the proceedings”.

Many of you undoubtedly have a few tenants in mind as “vexatious litigants”; however, obtaining such a declaration is an “extraordinary remedy”. Many LTB Members may recognize that a tenant is abusing the process but will look to you to provide reliable, objective facts so that the Member can make a decision which not only protects the landlord, but also prevents an abuse of the Board’s processes and censures the tenant. A vindictive tenant who files multiple “frivolous” applications will leave a paper trail, but can be rewarded if you fail to properly defend each application or fail to carefully document the conduct of the tenant, not just at a hearing but also in the course of the proceedings.

Mark Melchers is an Associate lawyer at Cohen Highley LLP.   He can be reached at melchers@cohenhighley.com or 519-672-9330 x 428 if you have any questions about the above or require advice in these areas.