I have been asked on many occassions how I managed to become so involved in residential landlord and tenant law. The truth of the matter is that it happened entirely by accident. In the mid-1990's when I was working in my first law firm I was asked by a colleague to assist a small religious non-profit corporation with a problem they were having with a residential tenant. Given that it was early in my career I looked at any work as an opportunity to broaden my knowledge and experience.
In resolving the problem for this client it became apparent that very few lawyers were actually practing Landlord and Tenant law. In those days, residential landlord and tenant matters were governed by the Landlord and Tenant Act. Legal proceedings took place in the Courthouse before the registrar at 9:00 a.m. and Superior Court Judge at 9:30 a.m. if the lawyers or the registrar had not managed to strong arm the parties into a settlement.
The 9:30 a.m. appearance before a Judge could be a harrowing experience. The authority of the Judge's office was readily and swiftly deployed. Only parties with the most serious cases, and confidence in them, would have the nerve to survive this session. Given that the 9:30 a.m. block was half an hour before the "real" motions, the Court was intolerant of foolishness and those who were unprepared. It was normal for an entire docket of cases to be cleared in less than 30 minutes.
It turns out that I enjoyed the Landlord and Tenant work. It called for rather pure advocacy, spur of the moment judgment calls and negotiation. The subject matter, while not recognized within the bar as being in any way glorious, certainly captured the serious attention of both landlords and tenants alike. Tenants because the outcome would determine their future address and landlords because the problem (usually non-payment of rent) was directly impacting the profitability of their business.
Notwithstanding that this area of law interested me, it soon became clear that this work did not command significant legal fees. Ultimately, I think it is this fact that explains why not may lawyers pay much attention to this area of law.
In the heady days of the 1990's (compared to today for sure!) Ontario Legal Aid was a panacea for lawyers interested in poverty law issues--which included rental housing. Legal Aid would fund tenant cases where the landlord was breaching its obligations under the law (maintenance, repair, illegal entry, breach of quiet enjoyment) and certainly it would almost always defend an application against a tenant for termination and eviction from their rental unit. Having an interest in social justice, liking the cause of the under-dog, and having the ability to earn a living with "volume" I never said "no" to any landlord and tenant file regardless of the underlying circumstances.
Sometimes, not saying "no" is all it takes to become the go-to-guy. Within a few years I was receiving referrals from lawyers and lawfirms from all over. Everyone, it seemed, was happy to refer landlord and tenant cases to someone who knew the "ins and outs" of this area of the law.
If my success as a landlord and tenant lawyer began in the mid-1990's, it became every more so with the passage of the Tenant Protection Act (TPA). The TPA took landlord and tenant matters out of the Courts with the creation of an administrative tribunal known as the Ontario Rental Housing Tribunal. This Tribunal specialized in Landlord and Tenant cases, was located apart from the Courthouse, and it had its own Rules, Forms, and processess. The departure from the procedures under the Landlord and Tenant Act was significant and therefore, the lawyers who once dabbled, now gave it up completely.
Subsquent to the TPA, the Residential Tenancies Act (RTA) was passed and it replaced the TPA. The Ontario Rental Housing Tribunal was renamed the Ontario Landlord and Tenant Board. The administrative law nature of the Board did not, and has not, changed. For me, what changed was the recognition by landlords that the practice of law before this Tribunal was becoming more specialized. No longer were cases being resolved on the stern resolve of Superior Court Judges in 30 minutes or less. The Tribunal, by the nature of its structure, gave parties much more time and opportunity to fully air their positions. Cases became longer and more complex. Parties are now asserting their rights and positions especially in the face of a "no costs" environment fostered by the Tribunal/Board.
For several years the playing field between landlord and tenant was virtually level. As a lawyer representing both sides, I heard both landlords and tenants, equally and vociferously, complaining about the inequity in the law. Both sides thought (and still today feel) that the law is weighted in favour of the other side.
In my view, the law surely has its idiosyncracies, but for the most part I feel that it is balanced. The balance arises from the fact that the law is entirely knowable---i.e. it isn't arbitrary. Any landlord and/or tenant is able to know the rules and follow them if they care to learn the law. If the law is understood, and the Rules followed, the outcome in most cases would not offend most people's sense of justice and fairness. I have always felt, whether I am on the side of the Landlord or Tenant, that a just result could be acheived by guiding my client to act in accordance with the rights, responsibilities, and obligations imposed under the governing legislation (LLT, TPA, RTA).
The unfairness that landlords and tenants often rail about generally arises in circumstances where the person hasn't bothered to learn the law. Such people often think that the law is an ass and should not apply to them because their values and ideas of what the law should be are somehow superior to the will of the provincial legislature. Needless to say, this view doesn't carry much sway before the adjudicators hearing cases.
In recent months I have become concerned that the playing field is becoming less even. The problem arises because the Legal Aid system, run by Legal Aid Ontario, is broken. Since the mid-1990's, Legal Aid slowly chipped away at the services it covered and provided to low income Ontarians. This is significant because low income Ontarians are the ones most affected by Landlord and Tenant laws. Tenants with money and resources don't stay around to fight with crazy landlords (they just give their notice and move), and landlord's normally don't pick fights with tenants who have resources as these tenants usually pay their rent.
Legal Aid, long ago, stopped funding any case where the tenant was trying to fight an injustice caused by a landlord. Legal Aid restricted its funding to resisting applications for termination of tenancies. Even this was circumscribed by a new requirement for tenants to seek help first from a Community Legal Clinic. Only if the Clinic was not able to help the tenant would Legal Aid authorize a tenant to retain a lawyer to help them (albeit at a substantially discounted hourly rate with a capped number of hours). While making it more difficult to get legal help, at least Legal Aid Ontario allowed for the possibility of tenants to get a lawyer if they really pushed.
That is no longer the case in the East Region of Ontario. As of a few months ago, Legal Aid Ontario cut all funding of Legal Aid Certificates to tenants. Regardless of the circumstances, if a tenant can not get help at a clinic, they are simply out of luck. The fact of the matter is that Community Legal Clinics have an endless number of clients in all of the poverty law areas of practice. In Ottawa, the simple reality is that these clinics have so few resources to bring tenant applications that it is a fair comment to say they never do. With respect to applications against tenants, there is a profound pressure to negotiate resolutions in the face of a massive caseload. Difficult clients, especially those with mental health problems, are often overlooked as these tenants even have a difficult time asking for help.
One can see the beginning of a trend where vulnerable tenants are not fighting. Many tenants now receive the limited advice of duty counsel which means they get about 10 minutes of legal guidance to run the case themselves. I have watched tenants, who have good cases and who would have won had they had a lawyer, give up and lose. These days, with the elimination of Legal Aid funding, I am representing many more landlords than in the past. In one case, a tenant I was seeking to evict advised the Board that she was told not to bother fighting the claim because Legal Aid told her that she didn't have much of a chance so they wouldn't even represent her. Anecdotal perhaps, but this trend is increasingly apparent to those of us who practice before the Landlord and Tenant Board.
Some of you may wonder how I'm getting my fill of social justice and fighting for the under-dog. I'm pleased to say that I'm enjoying taking the occassional "good" case without charge. As people who love their careers can attest, while money is important the intangible rewards of interesting work can readily compete for one's feeling of satisfaction for a job well done.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
310 O'Connor Street
Ottawa, ON K2P 1V8
Thursday, 1 November 2012
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