Sunday, 4 November 2012

Ontario Landlord and Tenant Board: Appeal Options

The Ontario Landlord and Tenant Board hears cases in a summary fashion.  The Board is directed, by the Residential Tenancies Act, specifically section 183, to adopt the most expeditious method of determining the issues in a case that still affords the parties with an adequate opportunity to know the issues and to be heard on the matter.  In practice, this means that the traditional manner of presentation of evidence in Court is not necessarily followed.  An adjudicator has a very wide latitude to decide how a case will be heard.  Often, the adjudicator will proceed in an inquisitorial manner and once the questions are asked reach conclusions and make a decision based on the questions asked. To that end, the parties need to be assertive about their interests if it seems that they are not getting the opportunity to present evidence that they think is important.
Sometimes, the hearing procedure breaks down, evidence isn't heard, procedural fairness and natural justice is denied, or the adjudicator makes a legal error or has a serious misapprehension of what the evidence before him actually was.  Sometimes, the mistakes are small but cumulative leading the adjudicator to make the wrong decision.  If you are on the wrong end of a bad decision, what can you do?

Like many Administrative Tribunals, the Ontario Landlord and Tenant Board has an internal review process.  That review may be initiated by filing a Request to Review, which form is available on the Landlord and Tenant Board website.

The Review process is not automatic.  In order for a review hearing to be scheduled, the person requesting the review must demonstrate in the Request to Review Form that it appears that there may have been an error in the decision.   If successful in establishing that there may have been an error the Board will Order a Review Hearing to take place.

On the date of the Review Hearing, the party who requested the review will be required to convince the adjudicator hearing the Review that there was an error.  If successful in this regard, then the adjudicator will set aside the Order and a new hearing will take place in which all of the evidence has to be lead again---this is often called a hearing de novo

A big mistake that parties often make in filing a request to review is that they just re-argue the points they made at the hearing.  This is not the purpose of a Request to Review and if you proceed in this way it is likely that the Request to Review will be dismissed without a hearing.  Before filing a Request to Review I highly recommend that you read the Board's Guideline #8 which describes the purpose and methods to follow in filing a Request to Review.

AN APPEAL

The second way of challenging a decision of the Ontario Landlord and Tenant Board is by filing an appeal to the Ontario Superior Court of Justice, Divisional Court.   An appeal to this Court is restricted and limited to a question of law (see section 210 of the Residential Tenancies Act).   This means that in the Divisional Court the findings of fact made by the Board are generally not open to be disputed before that Court.  The Divisional Court is only going to intervene in the decision if it can be demonstrated that there is an legal error with respect to the decision or if there was a problem in the procedure of the hearing. 

To be frank, an appeal to the Divisional Court is exceedingly complex.  It is highly improbable that anyone but a lawyer could be successful in filing an Appeal to the Divisional Court.  Unlike the Landlord and Tenant Board proceedings, an appeal to the Divisional Court follows the technical Rules of Civil Procedure --see Rule 61.

A STAY OF PROCEEDINGS

If you are considering a Request to Review or an Appeal it is because the Order you have received is somehow wrong.  If, for example, you have been ordered evicted you will be nervous about the timing of the appeal and the date by which you were supposed to move out.    On an institutional basis, both the Board and the Court recognize that the Review Process and the Appeal Process will take a rather long time.  Hence, the Board will consider granting a Stay of any order, if it is requested in the Request to Review and a good argument is made for why the Order should be stayed pending the Review Hearing.

Note that an appeal to the Divisional Court results, automatically, in a stay of the Order being Appealed.  This means that the Order of the Board can not be enforced until the Divisional Court deals with the appeal or the Landlord brings a motion to lift the Stay.

Michael K. E. Thiele
Lawyer
www.pqtlaw.com 

72 comments:

  1. What if the Board makes a second mistake bigger than the first one and denies request for review because the law states you are allowed one review. You are not given any costs for disclosure expenses or legal fees. What other choice is there but Divisional Court

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  2. Hi there: Effectively none. However, in some circumstances where the mistake is clear, you may write the Vice-Chair or Chair of the Board and request that the Board initiate a review on its own. I've been able to do this a few times over the years--but not many! Otherwise, in my experience your only effective course of action is an appeal to the Divisional Court. Some people may suggest an application for Judicial Review (under the Judicial Review Procedures Act) but I haven't seen that be successful in any case that has already been heard.

    Michael K .E. Thiele

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  3. What if the adjourdicator made many mistakes, such as not realizing that they mistook certain statements as facts when the facts are wrong and written evidence was presented that proved such... also, giving wrong years, etc...

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    1. Appeals and Reviews are difficult processes at the best of times. When dealing with "findings of fact" that are wrong you are most often limited to a Request to Review at the Board level as appeals to the Divisional Court are unlikely to deal with findings of fact that are supported by the evidence---arguably though, perverse findings of fact--utterly unsupported by the evidence could be considered to be an error of law that could be appealed to the Divisional Court.

      To challenge findings of fact in an Order you need to highlight the error in the Order and with great precision demonstrate in a Request to Review how the evidence at hearing was different than the finding or that there were different possibilities for findings of fact that the adjudicator could have found. Even if the adjudicator got it wrong s/he owes you reasoning in the Order to explain how s/he got to the decision. To that end, if you have an Order that is just a bunch of conclusions without any reasoning you may wish to consider requesting reasons for the decision.

      Sometimes, as you describe, it seems like the adjudicator must have confused your case with someone else's as certain basic facts are incorrect. If very fundamental facts are wrong--such as dates--then it should be fairly straightforward to demonstrate the errors and to request a review hearing. However, be sure that the wrong facts are indeed fundamental to the outcome of the case and that they are not just typographical errors .

      Michael K. E. Thiele
      www.Ottawalawyers.com

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  4. The adjudicator I had made so many mistakes out of 29 there are 19 mistakes all important I feel to the final outcome. How can one make so many mistakes when it was not just taped but given in paper facts... I feel like I went to the tribunal for honesty and respect and came out degraded

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  5. Thank you for this information, Michael. I have had two orders, a hearing order and a review order denying a review. Must I appeal both orders to Divisional Court? I am also sending the Vice Chair a letter asking for another review. Background: I have not had the opportunity to be heard on the issue of "whether the act applies". I was not notified of the initial hearing where an order was made that the "Act does not Apply" and I was forcibly evicted by surprise from my home last summer after that order.

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  6. We have appealed to Divisional Court. We have not been successful in getting a re-hearing of Whether The Act Applies. The landlord got an order in our our absence (we were unaware of the hearing) and got an order that the Act Does Not Apply, and had us evicted.
    We have discovered that the RTA does not require proof from the landlord or the Board that we ever received a copy of the initial application from either the Board or the landlord. Nor does the RTA require proof that we ever received a notice of hearing, (RTA section 191) and the Board admits that they don't know if we ever received the mail, but since the landlord claimed they mailed it to us, they say it was properly served and have determined that we knew about it, which makes no sense. We have sent a copy of the appeal to the Board. We named the LTB as the party in the appeal, but must we name the landlord as a party as well?

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    1. The landlord is a proper party to the appeal---in fact the LTB is not normally named as a respondent to the appeal though it has the right to appear on the appeal and is entitled to be served with all documents in the appeal.

      Good luck

      Michael K .E. Thiele

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    2. Thank you Michael.

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  7. I have followed all the proper steps and have filed a T2 and T6 against my previous landlord. I did win my argument after more than a six hour hearing. Although I did not get everything I asked for I felt satisfied with the outcome. I was told there were procedures that had to be followed during the hearing. I did not have legal representation. My landlord did. I was constantly interrupted, yelled at and mocked. Instead of bringing 3 copies of evidence they would show the adjudicator messages on their cell phone. When I asked them to show proof of anything their answer was "Oh, I can't find it" or something similar: because in fact they had no proof. They have lied, made fraudulent documents, harassed and threatened me, knowingly failed to maintain my furnace properly which caused damages to my property, entered my dwelling with No notice, etc. I have endured more stress and unnecessary expenses because of the actions of my landlords. Now I have received a notice that we are going back for another hearing as they have requested a review. When I called the LTB to ask if they could explain to me what the review was for the lady was very rude. To make a long story short the LTB forgot to include the Landlords request for review with the Notice they sent me. Oops! So now I have to waste more time and money (and the time of my witnesses) to go back for another hearing. After reading the "inaccuracies" that they are disputing, most of it is in the wording of the adjudicator or they just disagree with his findings. I am hoping that the new adjudicator I get sees through these people and their lies and manipulative behaviour. It was quite upsetting to go through all I have with these people and then go to court and defend myself only to still be treated with no respect. Wonder how many fake documents they will "find." No wonder people lose faith in the legal system, the Landlord and Tenant Board, etc.

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    1. Thanks for your comment and I'm sorry that your experience in the system was so distasteful. What you describe is not atypical though the experience can be much different. So much in the Landlord and Tenant Board process depends on the adjudicator controlling the process and ensuring that there is procedural fairness. It sounds like you were denied some of those rights. Nevertheless, as you are the "winner" I hope that you found the remedy to be appropriate.

      With respect to the Review hearing you will have read that it is a two step process and the landlord will first have to prove that there is a reason for the Review to be allowed. Only then will it be a hearing de novo (fresh hearing). I'm not sure where in Ontario you are--but it wouldn't be unreasonable to write to the Board seeking direction and advising that it is your intention to deal with the Request to Review ( to argue against it) and if it is allowed--then to seek an adjournment to a fixed date. As your last hearing was 6 hours long I think it would be reasonable to request a special hearing block just for you. Getting some guidance from the Board on this would be helpful (i.e. can you get agreement that a hearing de novo would be rescheduled) so that you can avoid having to summons all your witnesses and getting ready to argue the case again. Also, you might wish to consider--if the review is allowed--to ask for an Order adjourning as well as an Order that the landlord be required to produce and disclose to you (as disclosure) all of the evidence it intends to rely on at the hearing. You were ambushed once---don't let it happen again.

      Hope that bit of commentary is of assistance. Good luck.

      Michael K .E. Thiele

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    2. I took time off from my College placement. My mother and witness took the day off work. We drove an hour to get to the Review Hearing, waited to get called in, at which time the Landlord who requested the Review showed up saying they just returned from vacation and had just opened their mail that morning. So, they had no time to prepare. We waited for the mediator at the adjudicator's request however this did not happen. The Landlord's paralegal went back to the adjudicator and asked that we reschedule as he and his client did not have time to prepare and he had an appointment that afternoon so he couldn't stay. Needless to say it did not go over well but it was granted. She doesn't have new evidence. She just doesn't like the outcome. They are the ones who filed and requested the review and they weren't ready? Hello? Should they not have their ducks in a row when they filed the request? What a waste of time and money. I can't even begin to understand how this can be acceptable. Is there any compensation for the costs myself and my witnesses incurred for this?

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    3. The Board does have jurisdiction to deal with the issue of costs and expenses in relation to its proceedings. However, it is a power that is exercised infrequently and when it is the amount is pitiful compared to the costs actually incurred. There are policy arguments in support of stingy costs as there are compelling arguments to award costs to successful parties. To review the way the Board deals with costs go to the Landlord and Tenant Board website and look at Rule 27 (Rules of Practice) and Guideline 4 (Interpretation Guidelines).

      Best of luck.

      Michael K. E. Thiele

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    4. We have just rec'd a ruling from the board , which we believe our LL will appeal to DC . The matter is a mess and complicated . Can you outline the process we as tenants must go through if the LL appeals to Dc . The situation contains several rulings and was reviewed by the Vice chair who now has ruled the Act applies .
      can the LL now try to evict people .

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    5. I assume that your comment is not connected to the comment above it--instead of posing a new question you hit reply in Blogger---the problem with this software---readers--this question is not a continuation of the original question.

      Hi: I can't really comment about whether the LL can now try to evict people as I don't know what the case was about. If the RTA applies to the relationship then of course the landlord can use the authority under the RTA to try to evict tenants. Of course, just because the landlord tries does not mean the landlord will be successful.

      Will the Landlord appeal to the Divisional Court? That is unlikely as the expense is significant and most cases that landlord's have are not important enough to justify the expense of an appeal to the Divisional Court. Further, Divisional Court appeals are limited to questions of law alone meaning that the factual findings are not subject to review. If the decision in your case has broad implications for your landlord perhaps an appeal is forthcoming. You will receive a Notice of Appeal and Certificate Respecting Evidence within 30 days of the date of the decision. That starts the appeal process. If this happens you will likely need a lawyer as defending a Divisional Court appeal is rather difficult. If you have difficulty locating a lawyer please feel free to contact me at my office and I can perhaps assist you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  8. Hi Michael,


    I need some advice. I recently moved out of a 4 bedroom apartment. My reason for leaving is because my roommates were too noisy. We have different work schedules and lifestyles. I have only been living there for 3 months and at the end of March, I told them that I was moving out in May. I am not on the lease nor have I signed anything. I was just a replacement for another roommate that moved out. I tried to find another roommate for them but it didn't work out. They are now saying that I am responsible for rent for the remaining months of their lease. Is this true? They also threatened to contact my new landlord and the tenant board. Even though I gave them 30 days notice am I responsible?

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    1. Hello: The first thing to determine is whether you are a tenant or not. Not having signed the lease is a strong indication that you are not a tenant. However, a tenancy agreement may also be oral or implied from the circumstances, Do you pay rent to he landlord? Was there ever a discussion with the landlord about being a tenant? If the answer is no, then you are likely a roommate, just as you describe. In that case, your relationship is governed by the contract between you and the tenant(s). If there is nothing written, then the terms of that contract may be implied from the circumstances. A court would use a fairness approach and try to determine what the agreement was. Did you agree to remain for the remainder of the lease? Did you talk about how the relationship could be ended? If not, then in my opinion it will be a matter of reasonableness and in that regard, my view is that the 30 days notice you gave is indeed reasonable and that ends your obligation. However, this is only my view based on the information you have provided. Should your roommates decide to sue (while unlikely) they may emphasize other facts or convince a judge that you agreed to something which you do not believe you agreed to. Threatening to contact you new landlord is pointless and silly as is contacting the Landlord and Tenant Board. The Landlord and Tenant Board will have no jurisdiction over you if you are just a roommate.

      Michael K. E. Thiele

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    2. Thanks for reply Michael. I have sent a cheque with my portion of the rent twice to the actual landlord. The last month I gave cash to my roommate. I didn't not have a verbal or written agreement with the landlord. However, with my roommates we had all assumed that I would be there until the lease was over. Due to circumstances mentioned before I decided I had to leave. I would consider myself as an occupant of the house. I would like to thank you for taking your time to respond to me. I appreciate it.

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  9. can you request a review if you won the original non review hearing, then the landlord filed a request to review and won at the review hearing

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    1. Hello:

      The short answer is "yes".

      The legal basis for the short answer is Rule 29.20 and Rule 29.21 of the Landlord and Tenant Board Rules of Practice. Rule 29.20 provides as follows: " The Board shall accept only one review request from a party, and shall not accept a subsequent request from that same party to review the resulting review order or decision".

      For more clarity, that explicitly provides the authority to request another review by a different party, Rule 29.21 provides as follows: " The Board may review an order or decision which has previously been reviewed, or may review a review order, if the request is made by another party upon different grounds or if the review is initiated by a Vice-Chair of the Board.

      Hope that answers your question.

      Michael K .E. Thiele

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  10. if my landlord has requested a review and it was denied, where would he then apply to? He told me he is going to a "higher court"? This is passed the 30 days after the order was issued and i need information.

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    1. Hi: There are two options after the Board issues and Order. The first is to file a Request to Review with the Landlord and Tenant Board. This Request must be filed within 30 days of the date of the Order. The Review is initially conducted on paper and if an adjudicator agrees that there is merit it is set down for a hearing. If the review is "denied" then the original Order stands (any Stay on that order is lifted). For the most part there are no additional "reviews" as each party is limited to a single review of an Order.

      The second option is to file an appeal to the Divisional Court. This appeal must be served within 30 days of the date of the decision and filed with the Court within 10 days of service of the Notice of Appeal on you. The 30 day time limit is not an absolute time limit. If a person intends to appeal, expresses an intent to appeal, and it is "close" they can ask the Court to extend the time-line to allow an appeal. Sometimes this is done by motion to the Court before serving and filing an appeal but most often it is done by simply requesting an extension of time within the Notice of Appeal itself and then arguing for the extension at the appeal hearing. If this should happen you would have options yourself on how to speed up the decision on this point by bringing your own motion.

      While filing a Request to Review is easy and cheap, filing a Notice of Appeal and actually following through with it is complicated and expensive. Practically speaking, private individuals are not able to properly conduct an Appeal in the Divisional Court. The Rules are complicated and unlike the Landlord and Tenant Board that provides handy forms on which to check off boxes, the Notice of Appeal procedure requires drafting of original documents (no little boxes to put a check mark in). If your landlord approached a lawyer to file the appeal he would likely have been shocked by the estimated cost of the appeal. That cost will also be more significant as an appeal to the Divisional Court is limited to questions of law. Meaning that findings of fact can not be readily challenged. Appeals to Divisional Court are likely to be unsuccessful.

      Hope that helps you figure out where you are at with this matter.

      Good luck.

      Michael K. E. Thiele

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    2. thank you.

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  11. I am a new Landlord and new to this process. I had a tenant that assaluted another tenant. The tenant has been charged but not convicted. I filed an N7 and L2 and the decision was awarded to the tenant. Is there any way I can appeal the members decision? The tenant that was assaluted does not want to do home becasue he is afraid.

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    1. Hi:

      By serving an N7 I am presuming that you proceeded on the basis of "impaired safety" meaning you alleged that the tenant who committed the assault seriously impaired the safety of another tenant.

      You indicate that you lost the application. I'm not sure why you lost it. Was it on the merits of the case? Was it on a technicality--like a mistaken date on the N7? Was it a lack of evidence? Before I, or any lawyer can answer your question, we would need to see a copy of the decision of the Board and then get a background explanation from you. This is the only way to determine if there are any grounds to appeal or to seek a review of the decision.

      Generally speaking, your "appeal" rights consist of 1) a Request to Review and/or 2) an Appeal to the Divisional Court. The Request to Review is done at the Landlord and Tenant Board and the Appeal to the Divisional Court is done under the Rules of Civil Procedure in the Superior Court of Justice, Divisional Court.

      Practically speaking. You may be able to represent yourself in the Request to Review process but it is highly unlikely that you would be able to pursue an appeal to the Divisional Court on your own.

      Both of these options must be pursued within 30 days of the date of the Board decision, otherwise you may lose the right to review or appeal. Extensions of time are possible, but not easily obtained.

      The Review and/or Appeal process is not an opportunity to re-argue the original case. You need to find errors in the proceedings and in the case of an appeal the only basis for an appeal is on an error in law (not in fact).

      My recommendation to you is that you find a lawyer near you who does Landlord and Tenant law. Pay for a half hour consultation and show him/her the order and provide a brief outline of what has happened. For a small fee that lawyer should be able to tell you whether you are wasting your time or whether there is a decent case to review or appeal. Proceeding in this way will save you a lot of aggravation.

      Good luck

      Michael K. E. Thiele

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  12. Hi Michael:

    I requested a review of an order for a rent increase above the guideline due to capital expenditures and was denied. I requested the review on the basis of natural justice (the adjudicator repeatedly accepted the testimony of the landlord and denied my testimony: Landlord said they replaced fences around pools for privacy..when I said that isn't a valid reason covered in the act, the landlord then said that the fence was replaced because it was corroding and falling down. I disputed this. No evidence was provided that this was true. Also the landlord said that a fence around the perimeter of the complex was replaced to provide greater security by eliminating access to the property. I stated that there is still an open gate there that anyone can go through to gain access. The landlord stated that this one gateway was left so that people had to go there to gain access and that there was a security camera there. I stated that no camera ever existed there). In her decision the adjudicator wrote about the supposed security camera. When I requested a review I noted that there was never a security camera there and there still is not one. This part of my review request was denied because the hearing member was in the best position to determine the credibility of the parties and has broad discretion in issuing an order. The member deciding my review request also noted that the landlord's witness was an engineer (that works full time for the landlord). The engineer stated that these things existed and I stated they did not. They did not have to present any evidence of their existence at the hearing and I am prevented from displaying any evidence that they do not exist during a review.
    I also requested the review based on the member's misinterpretation of LTB precedence. The parking garage was repaired. Half way through the repairs the complex was sold. The landlord was given costs paid for by the previous landlord. The hearing member relied on Fane v. Sawdon to decide in favor of the landlord. In that case it was determined that although the landlord didn't directly pay for capital costs, he paid fees to the condo board who in turn paid for the work. Therefor the landlord still paid. In the Fane v. Sawdon decision the member wrote that "expenditures may be incurred by another person on behalf of the owner or even by a former landlord and then cited previous orders TNL-03984 and TNL-27000. My review request stated that Fane v. Sawdon shows that there must be at least an indirect payment by the person seeking to have the rent increased above the guideline. Also, just because the member deciding Fane v. Sawdon said that a former landlord may incur the expenditures that does not mean that it doesn't have to be shown that the current landlord somehow reimbursed the previous landlord and is out of pocket for the capital costs. At the original hearing I asked the landlord three times if they paid the previous landlord, in any capacity, for the work paid for before the sale of the complex. Each time I asked all he would say is that they contemplated it. The member deciding my review request reiterated what the hearing member said, quoting from Fane v. Sawdon, and completely ignored my argument.

    Do I have any recourse? The landlord and his witness lied and are seen as credible and I am not allowed to disprove the lies or put forth logical arguments. Can I go to the divisional court or is that route extinguished?

    I should also note that there is an appearance of a conflict of interest as the member who oversaw the hearing and the member who decided on my review request went to the same law school and graduated 1 year apart.

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    1. Hi: I can not possibly comment on whether there is merit in the positions that you advance. Certainly it seems that even basic facts can not be agreed upon and are contentious. In any event, a party to a Board proceeding is entitled to request a review (as you have done). The Board Rules provide that the Board shall only accept one review request from each party (Rule 29.20).

      As the "review" option has been exhausted you may indeed seek to appeal the decisions to the Divisional Court. An appeal to the Divisional Court is authorized under section 210 of the RTA and is filed in accordance with the Rules of Civil Procedure and the Courts of Justice Act. The time for an appeal to Divisional Court is 30 days from the date of the decision. If you have missed that timeline it is possible to seek an extension of time to file the appeal. You will need to take a look at the law respecting extensions of time to see what the test for granting it is. Note that an appeal to the Divisional Court is more limited in scope that a Request to Review. Pursuant to section 210 RTA the appeal is limited to "a question of law".

      Having prepared numerous appeals to the Divisional Court I can confirm that the process is quite time consuming and labour intensive. Proper compliance with the Rules of Civil Procedure is tricky and I think it would be difficult for a lay-person to pursue an appeal. Lastly, if you do pursue a Divisional Court appeal be aware that if you lose the appeal that you may find a very serious costs order being made against you (you could expect several thousands of dollars). If you plan to pursue an appeal it would be worthwhile to put your materials together and at least consult a lawyer before filing (presuming retaining one is too expensive) to get his or her perspective on the appeal and how you have prepared it.

      Best of luck

      Michael K .E. Thiele

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  13. Hi Michael,

    I was recently denied a request for review because I forgot to submit my doctor's note with it. I was originally taken to the tribunal onan order for eviction from mu landlord for non-payment of rent. The reason I wasn't paying my rent was because I needed to move and could not afford to do both. My landlord has begun renovating my duplex and evicted every tenant expect myself and one other. He has gutted ten units and really left the building in disarray. I had a flood in my apartment and a severe five month leak. I have had bats and now have a mice infestation. I have begged and pleaded with my landlord to fix these issues and he has not addressed them. I even went to Property Standards and had an inspection done. He was told to do work on the unit and he did, but never finished. He has ignored my requests since then and I couldn't take it anymore. I suffer from a mood disorder and have been placed on stronger medication and was forces to get a psychotherapist at $80/wk to help regulate my disorder. It has been really difficult and I had to move.
    The trial was held at the tribunal without me because I had three doctor's appointments two hours out of town. I lost a baby due to stress and am having ongoing physiological signs of stress. My landlord has tried to coerce me into signing documents agreeing to move and has left threatening voicemails. I have incurred a significant cost due to damages and was even forced to give my dog to family for two months due to the mice. My dog is an Emotional Support Animal and I really need her around. Anyway, I had doctor's notes explaining why I could not attend the hearing, but did not know they had to be submited with the review. I had them on me at the time too.
    Now my landlord is taking me to Superior Court for an Examination and to enforce the order. I have concerns about the amount because he did not deduct my last month's rent deposit. I asked him if he had and he did not respond. He also failed to provide any rent receipts in nearly two years and I pay him cash. I plan on taking my landlord to the tribunal for a T6 and also want to appeal the examination because of the lack of maintenance. Can I do that? If so how? If not, what are my options?

    Thanks

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    1. Hello: What an awful story for you on top of all of the personal challenges. While you provide a lot of detail there is still a lot missing from all of this. Are you still in possession of the unit or have you now moved? If you have moved then the course of action will be different than if you are still in possession. Either way, you would benefit tremendously from having a lawyer. Is there any chance that you can get to a local Legal Clinic (usually supported by Legal Aid Ontario)? It would be really helpful for you to have a lawyer guiding you. What happened to you is unfortunate---I presume the request to review was denied without a hearing? Without seeing the reasons for the denial it is difficult to comment about how you can deal with this. But certainly with mental health issues--that can be clearly linked to the problems or even failure to follow procedure the Board should be flexible and accommodating. Depending on the circumstances and what the medical notes say---a last hail Mary, if the medical notes support it---would be to write to the vice-chair of the Board, enclosing the medical reports, and explaining concisely that you were unable to engage the process due to your disability as established by the enclosed medicals. If these are compelling, the vice-chair has the authority to initiate a Board ordered review of the decision. Note that proceeding in this way would be exceptional--but in some circumstances I know it works.

      If you have already moved out you can still start a T2 and a T6. Those applications will lead to hearings which may indeed lead to rent abatements. The effect of which will be to give you an order against the landlord for payment of money. You could then seek to set off your Judgment against the Landlord's Judgment. The debtor's examination (I'm presuming this is being done in the Small Claims Court (it is a branch of the Superior Court)? You could move the Court to stay the examination pending the resolution of you LTB cases. Whatever you do, don't miss the debtor's examination as the failure to attend can lead to a warrant for your arrest.

      There are many ways to approach your situation. The best analysis you are going to get is from a lawyer who has all of the paperwork in front of them. I urge you to get to a legal clinic if you can or to any local lawyers who may be familiar with landlord and tenant matters.

      I hope this has helped you out a bit.

      Good luck

      Michael K. E. Thiele

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  14. Hello michael

    We have a tenant who got separated and gave us a notice that they will be leaving by the end of october. The wife left on 16 of that month and the husband has still not left as of today which is 6th of december he hasnt paid rent for november and december (He asked to us to use last months rent for october). He does not reply calls or messages and we had filed L3 with the board and at the hearing which he did not come however the court has given him a notice of eviction to evict within 7 days and if he doesnt leave police will have to enforce it. Now I wanted to know what ways can he delay this by filing appeals with ltb or divisional court and whats the longest time it will take him to leave after 'playing' around with the system. The tenancy was supposed to end in march 2015 but we felt sorry for him and allocated it as we were planing to move in. Now he has started complains about bed bugs and water problems and we sprayed 3 times which cost us around 1500$ and the exterminator company said there was no activity of bed bugs found and for the water he is suddenly complaining of no water for hours even though the other tenants of the same house have no problems of bed bugs or any water problems. He is also complaining of low water pressure eventhough 3 people are living in the house (incl other tenants in the basement who work 8am-9pm). This is because the the pipes in the house are 3/4 inch which is the standard size allowed by the city of toronto by laws and we are following up to change this to 1 inch and the city is responsible to first give us permission which is taking time. Now he today asked his wife to sms us saying that he had to throw his bed because of bedbugs and he will counter sue us to avoid this we have to pay him 500$ to leave by 15 of this month. Pls note that he first complaianed of bedbugs after 6 months of moving in and the othet tenants have had no problems as he is having of water problems or bedbugs. The basemnt woman has complained about loud music during late night from his apartment and a 80 yr old neighbour complained of loud noices coming from his unit.
    Thank you pleasr reply asap

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    1. Hi:

      There are a great number of legal issues that your comment raises. Some of the more serious ones seem to have been glossed over in the process so far, so you may not have to worry about them. Often enough, an L3 results in an ex-parte order being issued--meaning a paper hearing without an appearance by landlord or tenant. The Board appears to have scheduled a hearing for you and must have been satisfied with service of the Application and the underlying basis for termination of the tenancy---so that is good for you. Had the tenant showed up he had options to resist the L3.

      I presume from your explanation that the Landlord and Tenant Board issued an Order terminating the tenancy and evicting the tenant (giving you vacant possession) as of a specific date. You should be aware that the police do not enforce Landlord and Tenant Board eviction orders. To enforce the Order (presuming he does not move out), you will need to go to the local Court and direct the sheriff to enforce the eviction. There is paperwork and an approximate fee of $350 for this service. The sheriff will also give him more time to get out. To direct the sheriff to evict you will need original copies of your landlord and tenant board order. You may wish to go to the local Courthouse to find out what you need to bring them on the day after the date specified in the Order for him to move out.

      You ask what the tenant can do about the eviction order to delay it. There are two major things he can do. The first is that he can file a Request to Review and seek a stay of the Order pending the hearing of the Request to Review. The grounds can be on the merits of the application but it could also be based on him not being reasonably able to participate in the hearing that already occurred. This process could delay or even ultimately result in the eviction being set aside and your L3 dismissed. Proceeding this way is not a guarantee for the tenant and it may be that his Request to Review is refused without any hearing etc..

      The second option for the tenant is an appeal to the Divisional Court on a question of law. Delivering a Notice of Appeal causes an automatic stay of the eviction. This process is described elsewhere in my blog if you are interested on how it works. These appeals usually require a lawyer as they are difficult to do.

      All of the rest of his complaints seem focused on trying to get you to give him money. I think you see the complaints for what they are and until he is gone you are simply going to have to deal with it. Investigate proper complaints and deal with them as needed. Your obligations as landlord continue even though the tenancy has been terminated.

      Best of luck.

      Michael K. E. Thiele

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  15. Hello,
    My sister rented a room in what I believe to be a rooming house. Originally there were no pets allowed until the landlord allowed another tenant to have a dog. Following this my sister decided to get a kitten, now the landlord wants to raise her rent after living there 4 months. They are saying she must pay an additional $50 month because she has a pet. Can the landlord do this? There is no yearly lease as it is a month to month agreement. Confused and cannot find answer in RTA.

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    1. Hi:

      The landlord is not permitted to raise the rent because of a pet. The "rent rules" are not based on the presence or absence of animals. The rent increase rules are in Part VII of the RTA starting at section 105 through to section 120. Other sections can also apply depending on the circumstances.

      If this is a rooming house and your sister is RTA covered (rooming houses are normally covered by the RTA), and the rooming house is not exempt from the rent increase provisions (how new is the building?--see section 6(2) RTA for exemptions) then rent increase of $50 is likely illegal. Certainly, there is no basis in law to raise the rent because of a "pet" being present. If this is a usual tenancy, no exemptions etc., then the landlord has to give your sister a Form N1 (Notice of Rent Increase), with 90 days notice of the rent increase (see the notes on the form). Rent may be increased only once every 12 months in a non-subsidized housing context. The Guideline increase amount for 2015 is 1.6% (multiply the rent by 1.6% to determine the lawful monthly increase).

      If the building your sister is in, is by chance exempt from the guideline increase amount (newer buildings are exempt---see section 6), then the rent without proper notice may be increased by any amount the landlord wishes. However, because the landlord tied the rent increase amount to the presence of a pet the increase is likely illegal and would not be enforced--this view is based on relatively recent caselaw.

      Hope that helps

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you so very much for your quick response and direction to the RTA. You have been a great help and confirmed what I thought.

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  16. Hi Michael,

    My landlord filed an application to have me evicted. She's in the wrong and I've video taped / recorded every conversation we've had. The problem is that the hearing happens when I will be away on a trip and I've had the plane tickets booked for a while and booked the time off from work. I won't be able to attend and I can't send anyone on my behalf as I just recently moved to Toronto and don't know anyone that well.
    What are my options?

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    Replies
    1. Hi: You should write to your landlord (letter, email, text) asking her to consent to a rescheduling of the hearing. You should include with that letter an explanation that you will be away on a trip on the scheduled hearing date, that you have plane tickets already booked and can't change your travel dates. Enclose a copy of the itinerary if you are able to do that. Then call the landlord and ask for her consent to reschedule the hearing date.

      If you get the landlord's consent then write to the Landlord and Tenant Board advising that you are asking for the hearing to be rescheduled to another date and that the landlord has consented to the rescheduling (enclose the landlord's written consent to reschedule).

      If the landlord does not consent (which in my experience is what will likely happen to you---as unrepresented parties rarely consent), then write to the landlord and tenant board. Advise in the letter that you are seeking an adjournment of the hearing scheduled for whatever date. Advise in the letter that you sought the consent of the landlord, that you wrote to the landlord, that you gave the landlord a copy of your itinerary, copy of your plane tickets (whatever you gave), that you called the landlord to get consent and that the landlord refused to consent or that the landlord refused to answer your request. Advise in that letter to the Board that you don't have anyone in Toronto to attend the hearing for you and that you are asking the Board to reschedule the matter as you wish to participate in the hearing but are prevented from participating as a result of you travel plans.

      If there is enough time between now and the hearing date you might actually get a response from the Board where it goes ahead and reschedules the hearing based on your letter. Other times, nothing will happen and the case will come on for a hearing and hopefully your letter has made it to the file and the adjudicator presiding over the hearing will have your letter and your explanation and notwithstanding that you are not there adjourn it over the objections of the landlord. Worst case, your letter goes unnoticed, the landlord fails to inform the Board of why you are not there (it would be very useful if you would deliver your rescheduling request in a way that you can prove delivery of it---email, fax, text as opposed to mail or dropping it off), and the Board proceeds with the hearing and you're evicted. Presuming the eviction is not crazy expedited and you are back in the City before the Order is enforced and within 30 days of the eviction Order, you can file a Request to Review the Order to set it aside on the basis that you did not have a reasonable opportunity to participate in the hearing and that your letters were not considered etc.. It doesn't guarantee you a new hearing but you would likely get it.

      For the most part, hearings are generally rescheduled in the circumstances that you describe and you should expect that an adjudicator would adjourn the matter if the case was not rescheduled before the hearing date. What you are asking for is not unreasonable.

      The next best alternative to getting the matter rescheduled on consent is to retain a paralegal to attend at the Board to ask for the adjournment on your behalf. There will be some paralegals that you will find who are likely to be there anyway that day and you can retain them to speak to your matter. Give them a copy of the correspondence, your travel itinerary and available dates and they should get you the adjournment without much difficulty. Because the landlord did not agree to your reasonable request that might also get you a costs order to recover what you pay the paralegal.

      Hope that helps.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  17. I want to comment on the functioning of Landlord and tenant Board Ontario. This may apply to other Boards as well. I am a small landlord and over years I have seen how the Board is biased against landlords. Not only that the Board is so lazy and taking long time to process eviction cases, it keeps on dragging the cases. I have been harmed by the Board several times and I am feeling so helpless. For example, recently (June & July 2015), I filed an L1 for non payment of rent. Tenant was also present at the hearing. The tenant agreed to make payments by certain dates. The order stated that in case the tenant did not make any payment, the landlord could file for violation under S. 78. The tenant never paid a cent & violated all the terms. I filed L4 with the board. The tenant was clearly in violation and I should have got an eviction order right away. To my utter surprise and dismay, the board fixed another date for hearing after a month. So I will be going to the Board again in August 2015, spending another day at the Board. How unfair? Not only that I will have to appear again for the hearing, the tenant in the meanwhile continues to enjoy living for free. I also have to pay to the Board. So both the LTB and the tenants make a living at the cost of Landlords. Both are parasites feeding on the miseries of Landlords. Small landlords like me get lynched between the LTB and the tenants. Landlord is the only loser in between. LTB should be overhauled and lots of its incompetent and lazy members need to be fired.

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    1. Hi: It is clear that you are frustrated by a system that you see as inequitable. It isn't my function to be an apologist for the system and I don't seek to justify the processes that are set out. That being said, I must say that I don't think that your criticism is fair. However you look at it, there must be a system that adjudicates the rights as between landlords and tenants. Whatever the system is, it must allow for the principles of natural justice to apply. Those principles include the right to be heard and the right to know the case against you. Scheduling a hearing, putting it on a docket, sending out notices, getting it heard and then issuing an order is not going to happen instantly--even if a tenant is in substantial arrears of rent. What I can say is that the current system is significantly faster than what it used to be under the Landlord and Tenant Act when cases were heard in the Superior Court of Justice (i.e. before Landlord and Tenant cases were transferred the specialized tribunal).

      As for your L4 and the breach of your order that led to your application it is not entirely clear why you didn't receive an eviction order instead of being ordered to another hearing. The only times I have seen that is when the L4 isn't properly filled out or the information in the L4 is incomplete such that the adjudicator can't write the order requested based on the information provided.

      As for "lazy" adjudicators and the parasitic LTB and tenants, I can only say I've heard those phrases used in reference also to my own profession by the misinformed. Your comment simply is unfair and inaccurate and doesn't do anything to make your complaint about the process credible.

      What I will agree with you on is that the scheduling of hearing in smaller locales in Ontario are not as frequent as they should be. Cities like Brockville only have cases heard once a month and depending on how the notices fall and the scheduling happens a non payment of rent case can take longer in a small town than in the larger centres. That however may be balanced by the time needed to enforce an Order of the Board as the smaller locales seem to do it faster.

      As I have commented elsewhere in this blog, the trick to making the RTA and LTB processes work for you, and hence not fall so far behind, is to exercise the rights that are actually given to you. Select your tenants properly in accordance with a proper reference and credit check procedure. Get guarantors as necessary, and make sure to serve notices immediately when the law allows. If you follow the rules strictly and do a proper vetting of tenants you will rarely have the type of problems you are describing. And if you do, you will be in a position to enforce the Order that you do get for the payment of money.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  18. I have been living in my current place for 11 months. My 12 month lease is ending in a month and I would like to stay. Neither the landlord or I have discussed it so I assume I can just stay. Is that correct? She has a last month payment, but if I'm staying on longer, does she get to keep that for the last month, when I give notice to leave and I need to give her a check for this coming month?

    Also, my lease says laundry is payed for by the landlord. We have shared laundry for 3 units in a house. Now the landlord is saying there is to be a laundry schedule and each unit can only access it 2 days per week. When I moved in, she said there was laundry, and there hasn't been a schedule for the past 11 months. There was no issue, except new tenants that live in the basement unit near the laundry room want privacy. Can a laundry schedule be imposed?

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    1. Hi: You are entitled to continue your tenancy after the expiry of the fixed term. You do not have to do anything for the tenancy to continue. It continues, as a matter of law, unless you give a proper Notice of Termination. This often surprises tenants who think they can leave at the end of their fixed term lease without giving notice. The Last Month's Rent deposit is not applied to the last month of the fixed term lease. It continues to be held by the landlord as the payment for the last month of your tenancy including that portion of the tenancy that becomes month to month after the end of the fixed term lease. Hence, you do have to give her a rent check for the last month of the fixed term lease.

      The landlord's restriction on the time of use of the laundry is effectively a reduction in service. How big a deal this is depends on your circumstances and perhaps privacy for new tenants is reasonably understood and can be accommodated by you and the other unit. Then again, if the schedule is strict, imposed without consultation, and there is no flexibility then the landlord is not being reasonable and you can refuse the limitation/reduction in service. You could file an application with the landlord and tenant board and you could ask for a permanent rent abatement reflective of the cost of taking laundry out to a service. I would try to first work with the landlord to see if a reasonable agreement can be reached and if not and the whole thing is unacceptable then advise the landlord that you will need to bring your laundry out for service, that the cost of that is X dollars. Then advise the you are going to file an application with the Landlord and Tenant Board requiring the landlord to restore full laundry service or alternatively for a permanent rent reduction in the amount of the cost of laundry and an amount for your inconvenience.

      Hope that helps

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  19. Michael how long should it take for an adjudicator to make a decision? We are attempting to evict an extreme hoarder from our co-op after 5 years of failed attempts of accommodation. Our case is complicated by the fact my board and the tenant are not in compliance with the municipal fire code as a result of this situation and have been brought to criminal court. The Landlord tenant tribunal proceedings ended over a month ago and we are still waiting for a decision. The criminal case keeps getting postponed waiting for the verdict from the tribunal. We are a non-profit and each day that passes puts hundreds of other tenants at risk to say nothing of the risk our hoarder is in of self harm.We failed our fire inspection 10 months ago and the tenant was given 30 days to get her unit in compliance. The inspector came back last week, she is still not in compliance- actually the hoard has grown and still we wait.

    ReplyDelete
  20. I contacted customer service at the Landlord Tenant Tribunal and am advised that all rulings must be submitted within 30 days of the completion of the hearing. We have been waiting 6 weeks, so yes we are frustrated and yes somewhat critical of the system.

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    1. Hi: Some cases take longer than others to decide. There is a 30 day decision timeline that the Board and adjudicators often refer to. However, my experience is that this is a guideline and not a rule. I don't know the details of your case but from the facts you have provided it appears that your co-op has recognized a human rights issue and duty to accommodate a member who is clearly suffering from a disability. If you have tried to accommodate that disability for 5 years I presume that there must have been some reasonable basis to expect that the member could meet the required standard of cleanliness to allow them to continue their occupancy of the unit.

      With the greatest of respect to the fire marshall or whoever alleged a breach of fire code I've often enough seen reports of official violations that fail to reflect real life. From time to time, in firecode violation cases, I've certainly had conversations with other lawyers, mediators, and persons involved wherein it becomes clear that the only "safe" building from a fire perspective is one that literally has nothing in it, including people. I say this simply to highlight that the determination of a fire marshall of a "violation" doesn't actually mean there is a violation.

      I presume that you had a hearing as you are waiting for a decision. Presumably your member put up a fight and perhaps made a proposal to get the place in shape, maybe there was an argument that with supports and services being put in place that the member could be in compliance within a period of time. I simply don't know what the positions were from the facts you have provided. Further, you seem very convinced about the irrefutable correctness of your position (termination & eviction) that you may not see that the tenant/members position is persuasive to the adjudicator or that there is more to this case than it appears to you. Given the recent legislative changes allowing co-ops to go to the landlord and tenant board there is also a bit of a learning curve for co-op boards. Co-op Boards are used to having their decisions enforced either without challenge or after a members appeal meeting. When Co-ops have applied to the Court for enforcement of their decisions those decisions were virtually rubber stamped so long as procedural rights and natural justice were adhered to. It is a bit of a surprise for Co-ops in the Landlord and Tenant Board process to learn that adjudicators at the Board do not rubber stamp co-op decisions even if procedural rights and natural justice have been provided. The Landlord and Tenant Board retains the residual discretion to decide whether or not to enforce the Co-op Board's decision. The LTB is set up to make the adjudicator the final arbiter of what is fair and just. The exercise of discretion is not without regard of the Co-op Board's decision but the LTB is directed by statute to consider the entire circumstances in a way that is significantly different to the caselaw applied by judges in the Superior Court.

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    2. I say all of that because it may be that the adjudicator is fashioning a decision that does not terminate the membership. He or she may be requiring the Co-op to accommodate the member in some specific way and may be ordering something that will be complicated. That can easily take more than 30 days when the adjudicator carries an otherwise full caseload and is required to deal with a great many matters in a short period of time.

      I understand your frustration and your criticism of the system. However, I don't see a ready alternative as adjudicative processes take time and the Landlord and Tenant Board adjudication process is, in my experience, very fast compared to other processes such as in the Superior Court of Justice. For example, if you sought to file an application for a termination order in the Superior Court you could very easily wait 2 to 3 months to just get a hearing date--though this varies during the year (sometimes longer sometimes shorter) and the timelines vary greatly from courthouse to courthouse. The point is that you accessed a system, had a hearing, and are awaiting a decision in a process that compares very favourably to judicial system.


      Perhaps your adjudicator is new, perhaps, perhaps, perhaps. There are a number of possible explanations for what seems like an unreasonable delay. It may even be that the adjudicator became ill, went on holiday, and so on.

      Anyway, that's the end of me trying to explain the context of decision making and guessing as to what may be happening post hearing. Certainly, if your case was cut and dried I would have expected an oral decision right at the end of the hearing with a written decision following shortly afterwards. Especially in fire safety cases my experience is that decisions are usually made orally when the adjudicator knows that he or she is going to terminate and evict. Given that this didn't happen in your case you shouldn't discount the possibility of a slightly more complicated order than a simple termination.

      To be clear, and I know the foregoing might sound like I am defending the system, I really am not. I'm just trying to explain what might be going on with the presumption that the "system" is full of good people doing their best to fulfill their obligations. If you develop a full understanding of the processes involved you can likely navigate the system more efficiently. For example, and without knowing the details of your case, was there an opportunity to mediate or did the tenant representative seek mediation? I regularly engage in mediation and make deals to get certainty for my clients (i.e. a defined outcome) while giving the tenant some things that they need. Sometimes it is time to move, sometimes it is a contribution to moving money, or waiving damages, or an agreement to terminate as opposed to eviction for cause (which affects the ability to access subsidized housing). The point is that it is a rare case where you can't negotiate and get to some kind of deal that works for all concerned.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  21. Is it within the LTB's scope to order the Landlord to assist the Tenant in finding other accommodations following lifting a stay of eviction due to rent arrears?

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    1. Hi: I have never seen this done though that does not mean it couldn't be done in the right case. To see what the Board can do you have to look at the RTA and the jurisdiction provisions (i.e. the part of the law that gives the Board the authority to make the order requested). A starting point for the kind of Order you are talking about the following section 204 of the RTA:

      Conditions in order
      204. (1) The Board may include in an order whatever conditions it considers fair in the circumstances. 2006, c. 17, s. 204 (1)

      If there is a context for your question I would be interested to hear it.

      Good luck

      Michael K. E. Thiele

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    2. I went to the LTB today as my landlord submitted an L9 against me. I filed an L2 and L9 yesterday for it took me a long time to gather evidence and get access to a professional report. We tried mediation unsuccessfully and went before an adjudicator. The result was that the l9 issue was dealt with and I have been ordered to pay my arrears yet te landlord cannot enforce until after we receive a hearing date in regres to the t6 and t2. I was asked to give my evidence today to the landlord as disclosure although a hearing date has not yet been set. He is to provide me with his evidence by this afternoon as per the adjudicators order. My concern is that my landlord will see everything I have disclosed and create evidence up to counteract everything I presented in my binder. Is this a bad thing for me? Does my evidence still bear weight if everything I say has a direct counter claim?
      Thanks

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  22. I am an elderly person who has resided in a camp ground/mobile home park in a mobile home as my primary residence for over 15 years. I had legal advice that the RTA applies to me as I resided in that home for so many years, it's my primary residence and it is a mobile home. I filed a form A1 with the LTB to see if the residential tenancies act applies to me. The LTB ruled against me saying the RTA doesn't apply to me; but I was unrepresented at the hearing, the owners gave me their defense after the hearing, In an envelope) and as well to the board member. I never saw it until after the hearing so I could not defend against it. As well, the board member did not take into consideration any of my arguments which showed under the law that I am covered by the RTA, (none of what I stated at the hearing was reflected in the decision,case law was on my side; all the owner's arguments, (which were misrepresentations) were taken under consideration. I believe there was an error in law and as such; am appealing. In the meantime, within a day after the hearing, the owners gave me a threatening letter telling me I must vacate the premises. The police were called, I was evicted since they had served me with an (already expired trespass notice that wasn't legal and was 4 months old) and they trespassed on my property and are taking my mobile home apart and moving it to storage. I am currently homeless. My question is this, is it not against the law to evict me and move my home immediately after the board ruling when I am appealing the decision at Divisional Court?

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    1. Hi: Of course I can not comment on the merits of your appeal or your case generally as I do not have any facts. I will answer generally with respect to the law on appeals, which may or may not apply to you--there is some nuance in this.

      Typically, an application to the Landlord and Tenant Board by a landlord is for termination and eviction. Where such an order is granted, the tenant may appeal to the Divisional Court. That results in an automatic stay of the eviction order. You will find this in Rule 63.01 (3) of the Rules of Civil Procedure. Generally, as well, the Statutory Powers Procedures Act provides a "stay" of any order when there is an appeal (see section 25(1) SPPA).

      A "stay" means that an order can not be enforced pending the hearing of the appeal. In normal circumstances, the automatic stay provides the protection from enforcement that a party needs.

      However, there are circumstances where the automatic stay is not sufficient. In your circumstances it sounds like you are trying to assert rights under the RTA and accordingly you are claiming the security of tenure that comes with being an RTA protected tenant. Your landlord denies that you have the security of tenure that comes with being an RTA protected tenant. Accordingly, the landlord is taking action to remove you from the premises. The landlord must feel pretty comfortable in its position to remove you without getting a Writ of Possession under the Rules of Civil Procedure. Even if you do not have RTA rights to occupy the premises you may have other legal rights to be on the premises.

      Your A1 application was asking the Board to give you RTA protection. The landlord says you have no RTA protection and no security of tenure. The Board's determination in the A1 that you have no RTA protection confirms the landlord's position that you have no security of tenure. Hence the landlord feels at liberty to deal with you as a person without security of tenure and RTA protection.

      Your appeal of the A1 order creates a "stay" of that order. However, ask yourself what that "stay" actually accomplishes. Before the A1 the landlord said you have no RTA rights. The A1 affirms the landlord's position that you have no RTA rights. The stay of the A1 simply puts the landlord back to his original position that you have no RTA rights. No where in this equation do you have a legal right to occupy the premises. No where is such a rights being protected by a "stay".

      In circumstances where the automatic "stay" does not provide the needed protection I think the answer is to bring a motion within the appeal for relief pending the hearing of the appeal. Hence, you could indeed seek an order enjoining the landlord from removing you from the premises pending the appeal. The test for such an order is more difficult and there is nothing automatic about it. However, if the grounds are there and the evidence supports a prima facie conclusion that you should be considered RTA covered and that there does appear to be an error in the order and the balance of convenience favours an order preserving the status quo, then a Court may indeed decide to issue an order giving you "stay" like protection.

      Please note that appeals to the Divisional Court are very complicated and the procedural requirements under the Rules of Civil Procedure are much more complex than the proceedings at the Landlord and Tenant Board. There are strict timelines for appeals that must be met. Also, the appeal must distinguish between questions of fact and questions of law. This is rather technical. I urge you to consult with and retain a lawyer to help you with this appeal. You will improve your chances of success dramatically by being represented by counsel who understands the legal process.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you Michael; it is refreshing to see someone assisting people, (landlords and tenants)in the respectful, professional and thorough manner you do. I did receive a Certificate of Stay after a Notice of Appeal was filed with the court.

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  23. Mistakely i filed a claim to the sperior court against my landloard .The court hold the case and advised me to file application at the LTB . The board made a decision and i requested a review. The review also denied.Am i have the right to appeal at the same court using the court fee by activate the file special less thn a Six month had pass to my court file or i have to file a new case with a new fee and new file numbr?

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  24. Hi Michael,

    Great blog! What a treasure. You helped me win my case against my tenant who did not pay rent. She is likely going to be evicted next week, but she also filed a T2 against me which has alot of errors and mistakes. She is claiming a lot of things for which I know she has no proof of such as harassment, withholding of vital source to the house (even though I don't live there). She is also saying I have to pay for her moving costs, and her first/last month's rent.

    The hearing for the T2 is on March 1st and we just got the order for the L1 that she must pay $5000+ in overdue rent or I can apply for eviction on February 5th.

    I would REALLLYY appreciate your thoughts and advice on the matter which can hopefully help other small landlords like myself.

    How would you recommend I deal with this type of an issue?

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    1. Hi: I'll comment only on the T2 application. In my experience, the key in defending a T2 application is to not get caught by surprise by allegations and evidence in the proceedings. Given the structure of LTB hearings ambush and surprise are not infrequent occurrences in hearings. The Residential Tenancies Act requires that the Board adopt a procedure that ensures that all persons directly affected by the proceeding have an adequate opportunity to know the issues and be heard on the matter (s. 183). Hence, the most important thing for you to do is to write to the tenant and require her to provide you with disclosure of all of her evidence prior to the hearing. Further, if her written allegations contain generalities without specifics, demand that she provide details of the allegations and specifics about what she is alleging (who, what, where, why, when, how). Advise her that unless she provides you with disclosure of her documents that you will object to the documents being entered into evidence. Further, advise that unless she provides specifics of the allegations you will object to any allegations being raised that you do not have specific and advance knowledge of.

      At the hearing, you may indeed object on the basis indicate and you may reference section 183. Procedural fairness and natural justice underpin your demands for disclosure and specifics as you can not effectively defend yourself if you don't know what the case is. It is not, in my view, always acceptable to receive disclosure on the day of the hearing if that late disclosure prevents you from getting documents, witnesses, and other evidence together in defence. Hence, if the disclosure comes very late you might seek an adjournment from the Board to better prepare. If you are asking for an adjournment ask also for an order requiring the applicant to disclose all of her evidence well before the next hearing date (it is likely that you too will be ordered to disclose your evidence).

      Once you have the evidence/disclosure, consider carefully what the tenant is saying. If the allegation isn't true (whatever it might be), collect evidence that disproves the allegation. While you do not have a burden to prove anything it is still the best defence if you can disprove the applicant's allegations.

      As you don't provide details of what is in the T2 it isn't possible to comment further. That being said, do not underestimate or discount the seriousness of the allegations against you. If you are a little too easy going and you rely on the adjudicator seeing through the applicant and her allegations you might have a nasty surprise. Refute each individual allegation and do so with the best evidence that you can muster.

      If, by chance, there is merit to the allegations you might consider mediating in advance of the hearing. If the tenant is out of possession by the time of her hearing you will have a significant and likely unpaid judgment against her. If the chances of actually getting paid on that judgment are remote perhaps you trade some or all of the judgment for a dismissal and full and final settlement of all issues arising from the tenancy. It means that you walk away from the rent arrears order but if the chances of recovering it are slim to none then why not just write it off and settle the T2 for a set off against the rent arrears order. Yes--this will be very objectionable to some landlords---but it can be a fairly realistic assessment of the ultimate outcome in any event (i.e. you never get any money, and the tenant doesn't either).

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  25. Hi! Great post. I'm a tenant with an upcoming eviction hearing for non-payment. January was owing when the application was filed - we've since paid it off. Now, we have February owing plus the landlord's application fee. We disagree with the application fee so we're taking it to tribunal. Two questions, really - if the rent the application was made *about* (January) has since been paid, can assume we won't actually be evicted? And what do you think on due diligence excusing the application fee? We have videos of us trying to pay multiple days - the office was closed and locked during their locked office hours. We're happy to pay or arrange to pay February's rent but hoping to get the application fee knocked off.

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  26. Hi Michael,
    I have a tenant who has lived in my apartment unit for 3 years, and stopped making payments as he, ironically, lost his licence to practice law. He filed a notice to terminate last year, which I was happy about as he wasnt paying rent/on time. then he suddenly tells me he no longer wants to terminate. Regardless, the hearing was heard, he didnt show up, and i got an eviction order. he appealed it to the higher level in the tribunal, which also found for me. now he has gone and appealed it to the Court of Appeal saying they shouldnt have made a decision without him attending the hearing. What can i do? he also owed me over $10,000 in rent arrears dating back almost 2 years. Should i try to end his tenancy for non payment of rent and have him evicted and an order given for the rent, or just wait for the appeal to be heard (which could take a year im told), or begin a small claims court action? He is familiar with the law as a lawyer so he is using anything he can to prolong this, meanwhile Im getting no rent. Please advise, Thank you!

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    1. Hi: At this stage you need a lawyer. If your tenant is using the appeal process to delay the matter (presumably frivolously?) then there is no reason to think that he wouldn't do the same thing if you bring another application. The thing to do here is to retain counsel to represent you in the appeal. If the documents are what I am guessing they are, then your tenant has appealed the order to the Divisional Court. There is an automatic stay of any eviction order on appeal to the Divisional Court. There are other timelines in the Divisional Court but these timelines are driven by the parties and not Court itself (at least not initially). Hence, if you do nothing, then nothing will happen for a very long time. You need to hire a lawyer to address this as doing it yourself is practically impossible at this level. You will be asking the lawyer to bring a motion to require certain actions failing which the Stay of Eviction is lifted and you can enforce. You can ask the Court to quash the appeal on the basis that it has no merit, you can ask for the Court to lift the stay but still let the appeal continue, you can ask the Court to Order the tenant to pay the rent in full, plus arrears, on time and on an ongoing basis pending the appeal failing which the stay is lifted and the tenant is evicted. There are a number of different things to ask for depending on the particular circumstances. You should also ask for your legal costs of your own lawyer's fees--which, presuming you win, is something you are likely to get at least a part of.

      Proceeding with a motion in the Divisional Court is, I think, the way to go. While you can return to the LTB on other applications I think you would simply be wasting your time. Of course, you should ask your lawyer to analyze the grounds of appeal. If there is indeed merit and your chances are not great on the appeal consider consenting to the appeal and starting again on other applications before the Board.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  27. Hello can you please tell me how to present video evidence, my landlord assaulted me and I have it on surveillance cameras, due to his aggressive behaviour I had to record another incident where I was threatened with an axe in a menacing manner, the landlord filed n5 notices and lied on both of them which I can prove with my video evidence, how do I provide three copies of that? Ty

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    1. Hi: This is a wonderfully difficult question to answer. It is something that I struggle with regularly. Video evidence can be exceptionally compelling evidence. Unfortunately, it becomes fairly difficult to put this evidence on the record and difficult to get it in front of the adjudicator as part of the "record".

      Your three copies question is answered easily enough in that you simply out the video on thumb drives and give a copy to the opposing party. You can also send the opposing side a dropbox link to the video or a link to a private Youtube video. There are, I'm sure, dozens more ways to "share" video. This is the easy part.

      Getting the video into the hands of the landlord and tenant board is more difficult. The Board, as far as I know and certainly in Ottawa, has no way of receiving video in a way that makes the video accessible during a hearing. There are no video screens in hearing rooms, no network to tap into to upload a video, no method of showing the video during a hearing to the adjudicator, the witness, and the opposing side. Video is very difficult to work with in the context of presentation. Presented poorly, fantastic and compelling video can become a profound annoyance and frustrate the heck out of all of the parties. I regularly see people trying to present a video--only to skip over it apologizing for technological difficulties etc.. Also, a video once shown tends to become invisible and inaccessible for an adjudicator who does not have the hardware to load and watch the video again during deliberations.

      While you can always give the Board a USB key, or even submit a letter to the Board with the URL for download or streaming the video this will be unlikely to give your video the prominence that you desire and it is unlikely to become an integral part of the evidence.

      I can recommend the following way of proceeding with video. I'm sure there are better ways and in a technologically advanced hearing room there are most definitely better ways. However, in the reality of Landlord and Tenant Board hearing rooms we have to be prepared to present video in a room that doesn't even have a VCR. Hearing rooms in hotels, Royal Canadian Legions, banquet halls, and even the main offices do not have the tech that one needs.

      What I have done, that seems to work, is that I take my video and I edit it down to only what is needed. Long lag times in video starting up creates an anxiety in the hearing process that quickly becomes impatience. Hence, if I can, I keep my video segments as short as possible. I try to break up the video into segments that allow the video segment to be watched and then commented on and described by the witness. The description of what we just saw, in this 10 second clip, then makes it onto the record and is a subject of description by the witness. Consider the difference between showing a 1 or 2 minutes video and then trying to describe everything that was just seen on that video. It simply does not work as well.

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    2. How am I showing the video? I tend to upload the video onto an iPad, my iPhone, or other device. The real key is to load it onto a device that you know how to work exceptionally well. I made a disastrous mistake in going from Apple to Android for a hearing and had a heck of a time finding the clips I wanted, starting them etc., all because I'm not familiar with the technology.

      At the hearing it would be fantastic to have multiple screens for everyone to see. In theory you could bring in a large monitor to set up. In practice--I think this only works in Courts, as setting up audio visual equipment at the Landlord and Tenant Board makes (in my mind) adjudicators leery about your intentions. LTB hearings are intended to be fast and efficient. Dockets are long, adjudicators are expected to pump out decisions quickly. Setting up AV equipment suggests that you think your case is going to be a whole lot longer than the hearing block you are in can handle.

      For this reason, my video evidence tends to go in with a handheld screen. I hold it so that the adjudicator can see it clearly. The witness sees it from a distance but has already seen it so is prepared to comment on it as necessary. Short clips are helpful in this regard as well. The opposing side can look at the video on their own device and I clearly tell them which clip I'm playing based on the title. If they didn't bring a device--notwithstanding that I've shared the video with them; then this is their problem not mine.

      Aside from the foregoing, I also give some thought to what the video shows and what it is that I intend to demonstrate with the video. Is the key to the video sound? Is it a particular image? Is it the flow of images in the "movie" of what is captured. If the point is the sound, then the key is good audio and perhaps I bring bigger speakers so it can be heard more clearly. If the video shows an assault (for example), then the key to the video can be captured in several frames of video--i.e. the approach, the swinging fist, the contact, the falling down. What can be done with video like this is that you screen capture parts of the video and you print out stills from the video. You can actually show a video on paper though it is only effective, in my experience, if you are dealing with 10 to 15 seconds of an event and the event is dramatic--i.e. a punch, explosion etc.. Having video stills on paper is fantastic because this is the kind of evidence that the Board is very used to receiving and marking as an exhibit. It can be easily reviewed and looked at over and over again and it forms part of the file/record of proceedings that can be easily accessed for a Review or Appeal.

      The issue you have raised is a great one. How this kind of evidence is presented is certainly bound to evolve at the LTB. Until there is a perfect system we need to think about methods that allow the point of the video evidence to be conveyed quickly and efficiently while preserving the punch that this kind of evidence can give to a case.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  28. i currently rent a room in a rooming house my landlord has been extremely harrassing me i suffer from ptsd so this added stress isnt good one incident my landlord assulted me i called the police they said i live in a shared accomodation which i have a bar fridge in my room and a hot plate electric wok i share a washroom with one other tenant whike the landlord lives upstairs son lives in basement but sge knows i have no rights if she lyes and says i share the washroom with her son who actually uses the one upstairs but because the adjudicator today mentioned that there may be a discrepency with the law it might not be heard by the board so apperently by lying i have no legal rights and now the son will be using the washroom i use just because the cops and the adjudicator mentioned this the landlird is using that to her advantage how is this fair and how do i display in tribunal that the landlord is lying i cant even present my evidence of assualt and harrassment because of this lye

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    1. Hi Wes: The issues being raised deal with whether or not the Landlord and Tenant Board has jurisdiction to hear your case. The question of jurisdiction has nothing to do with whether your case has any merit. If the Landlord and Tenant Board determines that it does not have jurisdiction then your case and tenancy is not covered by the Residential Tenancies Act. That does not mean that you do not have a claim for assault and battery. Being assaulted is not legal and you have a right to sue for damages and if the police were satisfied, charges could be laid. What this means for you is that instead of proceeding at the Landlord and Tenant Board you will want to consider proceeding in the Small Claims Court. With a tenancy that is not covered by the RTA, and taking legal action against your landlord, you can expect that your tenancy is about to end. You should consider finding a different place to live as your relationship with the landlord is unlikely to get any better.

      With respect to the application before the Board-- it is unclear to me whether you've already had the hearing or whether it is going back to hearing. You should be prepared to deal with the question of whether the RTA applies or not. This means, no evidence relating to the assault will be heard. First the question of the RTA applying is heard and decided.

      It is the landlord's burden to prove that the RTA does not apply. Take a look at section 5(i) of the RTA. Read it closely to see if this applies or if the facts are such that it doesn't apply. You can find section 5(i) by Googling: "canlii residential tenancies act" It is a free search. Once you scroll down to section 5 click on the "5" that will take you to 97 citing references where section 5 has been considered in caselaw. You can read those cases and look for similar circumstances or interpretations of section 5(i) that help you. Be prepared to bring these to the attention of the adjudicator.

      A starting point, if I were representing you, is to look at the word "required" as it appears in section 5(i). Your description of the facts suggests that you are not "required" to share a kitchen or bath with the landlord or his son. That may be the angle to get RTA coverage--or at least it is the beginning of an argument.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  29. HiMichael,my tenant doesn't pay rent for 7 months already, we had a hearing for non payment of rent on February and he did not show up he said he did not received the letter[notice of hearing]after a few days I received a court order and paid the sheriff for eviction after two weeks I emailed the sheriff for the eviction and said that the eviction will not take place until the stay is lifted and the order lifting the stay served at there office.The tenant made an appeal to the divisional court. I have a lawyer and she will bring a motion and quash the appeal. the court hearing is scheduled on may 11. after the hearing how long I have to wait for eviction. Thank you so much

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    1. Hi: You have done the correct thing in hiring a lawyer as an appeal in the Divisional Court does not move forward on its own. The motion being brought by your lawyer, if successful, will put the issue on the timing of lifting the stay before the Judge. The Judge could order the stay lifted immediately or give the tenant some time. How the Judge decides will depend on the arguments that your lawyer makes for you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  30. I recently had a hearing at the Ontario Landlord/Tenant Board. The judge presiding over the landlord review would not listen to my evidence. And let the landlord lawyer talk and did not let me reply. The judge gave the decision to the landlord. The landlord did not provide me with any evidence as he was supposed and lied in court and said that he gave it to me which he did not. I am therefore filing a complaint against the judge of that hearing on April 21, 2016 and would like to know how do I go about appealing the judges decision.

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    1. Hi: Please read through the article above the comments as it describes the two processes for reviewing and appealing orders. Note that there is a 30 day time limit for an appeal and/or review so it is important to work quickly on getting the needed documents together. It is possible to seek an extension of time but it is not automatic to get one.

      What you are describing goes to the heart of whether there was a fair hearing or not. In preparing a Request to Review you may wish to give specific examples of what happened during the hearing. It is best to back up these specific examples with a transcription of the hearing evidence. You do this by purchasing a copy of the Hearing recording (about $16.00). You can then either a court reporter to officially transcribe the proceedings (rather expensive), or you can try to type out the important sections yourself and make note of the time index on the recording so that the accuracy of what you type can be readily checked. Whether you had a fair hearing or not should be revealed on the hearing recording (that is one of the reasons that a recording is made). If you decide to appeal the decision to the Divisional Court you will most definitely need an official transcript of the hearing.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  31. I wish you could also post something about installing video surveillance camera inside the house! I am living in an house with 5 other people (renting each room) and my landlord just installed it yesterday without letting any tenants know that it will be installed. It is placed inside the house close to the entrance and it was facing front door and now it is facing kitchen. They are moving the camera and I don't know if they are recording the voice as well. Is this legal? is there anything we could do as a tenant? what if the landlord refuse to uninstall it from the house?

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  32. Hi I have read the above and have decided to appeal to the Divisional Court. I believe I have no other recourse? The landlord's application was granted and my defense was dismissed. I would ask for a review, which permits me 30 days, but the eviction is to take place in 11 days. If I were to review and the review is granted on the 12th day I will have already been evicted. I believe that an appeal is to a single judge of the Divisional Court, and not a panel of judges, and an appeal would then be filed at the Superior Court Filing Office within my area?

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    1. Hi: I will only comment about process as I don't know the facts of your case. Your worry about being evicted before a decision is released on whether to allow a review or not is perhaps unfounded. If you look at the Request to Review form you will note that there is an option to ask for a "stay" of the eviction Order. When you file your request to review it is normally considered on the same day that it is filed. This does not mean that the review is heard and determined--instead it means that an adjudicator will read your request to review and determine whether it appears that there is an error that the Board should consider. If it appears that there may be an error that same adjudicator will "allow" the review to proceed to a hearing and a Notice of Hearing will be issued. If you ask, at the same time for a "stay", the adjudicator that looks at your request will also likely issue you a "stay" to maintain the status quo pending the Review Hearing taking place. It is possible of course that a stay would be refused or that a review would be refused. My point though, is that you would learn this fairly quickly.

      The Appeal to the Divisional Court of course, results in an automatic stay of the eviction order--the stay takes affect upon "delivery" of the Notice of Appeal which by definition in the Rules of Civil Procedure is the service of the Notice of Appeal and Certificate Respecting Evidence and the filing of that same Notice of Appeal and Certificate Respecting Evidence.

      The appeal is to a three judge panel of the Divisional Court. I think it is like this because the Divisional Court sits in a panel for appeals. That being said, I couldn't point you to where it says that and rely entirely on my experience that there is always a panel of three and you are required by the Rules to file materials in sets of three for the panel.

      If you do intend to appeal to the Divisional Court that is indeed done at the Superior Court of Justice. Judges of the Superior Court are also Judges of the Divisional Court--they just "switch hats" (figuratively), when dealing with matters at the different levels of Court. To be certain about timing, fees, and what is needed, you may want to call the civil counter at your local Courthouse to confirm their hours and what they will expect of you in seeking an appeal. Note that on filing the Notice of Appeal and Certificate Respecting Evidence that you can ask the Divisional Court Registrar to issue a Certificate of Stay. This isn't always done but you may want the comfort of having that document at hand.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  33. Recently my girlfriend had signed a lease for a new rental in Ontario. No copy had been given to her even though she had requested it and paid her agreed upon rent in full. As of 4 days before her expected move in date the landlord decided the rent agreed upon was insufficient. My girlfriend was told that house they were renting was to be sold, she was given her money back and was advised new locks would be placed in the doors. What course of action should she proceed with?

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    1. Hi Stephen: The first question is what does your girlfriend want to do? Does she want to take legal action to get possession of this rental unit? Or, can she find a new place, rent there, and perhaps sue the first landlord for damages? Your girlfriend has choices and I can confirm for you that a landlord terminating a tenancy in the way your describe is not legal. Your girlfriend should consider retaining a lawyer or paralegal to represent her and, depending on what kind of remedy she wants, ask that lawyer to write a demand letter to the landlord. When the landlord is informed of the kind of damages that your girlfriend could win you might see a willingness to grant access to the unit or alternatively a voluntary payment.

      Good luck

      Michael K. E. Thiele
      Quinn Thiele Mineault Grodzki LLP
      www.ottawalawyers.com

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    2. She will most likely end up having to find a new lease as she is expected to have moved from her current place by mid week. Aren't was negotiated, agreed upon, paid in full and then rejected not even a full week before the expected move in day. She suspects that the place will not be sold merely rented tk another group of tenants whom agreed to pay more after the agreement had been signed. She would not like to have any more dealings with these folks as they have shown their nature to be quite unfair. Rather she would rather sue them for damages. Moving is expensive.

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    3. I'm not surprised that she would want to stay away from this landlord. I take it that she is moving out of her old unit this week and was intending to move into the new place. Certainly any expenses that she incurs above what she would have otherwise incurred are damages that she can claim. Make sure to document and maintain receipts. Objection to the new landlord's termination should also be voiced (in writing) and notice given that damages will be claimed.

      Good luck

      Michael K. E. Thiele

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.