IT’S FRIDAY THE 13th: SO MORE CHANGES FROM THE LANDLORD TENANT BOARD!
The Landlord and Tenant Board (LTB) has amended some of its Rules of Procedure and Guidelines in order to ensure consistency with Bill 184 and some COVID-19 changes. In addition the LTB has changed/added some “Practice Directions” in an effort to ensure that those appearing before it have a full opportunity to present their case effectively. The amended Rules are effective December 1, 2020 and as such, prudent landlords should ensure they are fully versed with the amended Rules by that date. Here is a link to the changes.
The LTB Rules require compliance (other than in exceptional
circumstances) and where you fail to comply, you risk having your case delayed
or dismissed. If you are a landlord and plan to appear at the Board, you
had better know the Rules as well as you know the legislation. If you are a Licensee of the Law
Society, a failure to follow the Rules can result in a negligence claim.
One of the most significant changes to the Rules is found in
Rule 4 which governs the filing of materials, including e-filing of
applications. On Dec. 1, the email address for e-filing will change (see
Rule 4.2) so landlords and Licensees who e-file need to check carefully the
following link:
https://tribunalsontario.ca/documents/ltb/Rules/LTB%20Rules%20of%20Practice_dec2020.html
The LTB Guidelines provide a “non-binding roadmap” to the LTB
interpretation of statutory provisions and in our view an understanding of them
is essential to effective LTB advocacy. One of the questionable additions
to the Guidelines is in Guideline 7 which deals with factors relevant to the
LTB Member’s exercise of discretion to grant or withhold termination of the
tenancy and eviction of the tenant. Section 83 of the RTA was amended to
add s. 83 (6) which makes it mandatory for an LTB Member to consider whether a
landlord has attempted to negotiate an arrears repayment plan with tenants
whose arrears accumulated after the onset of the COVID-19
shutdown. Many landlords did just that beginning in March and April of
this year but some tenants refused to negotiate and instead withheld all rent
payments. Guideline 7 suggests that details of arrears negotiations should
not be disclosed: the landlord should only say whether it attempted to
negotiate. In our view that statement is incorrect. If a landlord made
good faith proposals to negotiate and the tenant outright rejected it, then in
our view under s. 83 (6) that should be grounds to support eviction; however,
if the landlord made bad faith efforts to negotiate then that should be a
factor in refusing or delaying eviction. The Guideline suggestion that no
details about the negotiation should be provided makes no sense in the context
of s. 83 (6) and a corresponding exercise of discretion by the LTB.
The LTB Practice Direction gives guidance to parties relative to Case Management Hearings
(CMH) which are becoming a key component of the procedures at the LTB for
expeditious disposition of applications. A skilled advocate can use the
CMH to either resolve an application or at least narrow the issues and evidence
required at a hearing of the issues. Again, knowledge of, and compliance
with, Practice Directions is essential to advocacy at the LTB.
You only have a few weeks to get up to speed
with the changes so good luck and happy reading
