Presenting your case at the Ontario Landlord and Tenant Board PART II
This article is a continuation of the theme of presenting your case at the Ontario Landlord and Tenant Board (LTB), whether you are a landlord or a tenant. This article is written, not for lawyers and paralegals (but potentially helpful to them too) but for regular people who need to use the services of the adjudication process of the Ontario Landlord and Tenant Board.
The last article focused on process and how the LTB actually conducts its hearings. Recall that the formality of a court proceeding is completely alien at the LTB. An adjudicator is directed to adopt a process—any kind of process---that allows people to know the case, understand the evidence, and be heard.
Yesterday, I was at the LTB here in Ottawa for a hearing that ultimately was adjourned to early December. What was interesting was that in waiting for the start of the hearing the adjudicator decided (having read the file) that this case should be sent to a Hearing Management Conference (HMC). A hearing management conference is entirely different than mediation and the focus of an HMC is not on resolution or mediation. While mediation is voluntary, an HMC can be ordered by an adjudicator who is seeing issues with a particular case.
The goal of an HMC dovetails nicely with the point of this article and that is presentation of the case to the member. Too often, applicants attend at the LTB and think that the best thing to do is to unload every fact, every issue, and every piece of evidence. The problem with this is best highlighted by imagining the time it takes for the LTB to watch several “video clips”. Those clips, perhaps only a few minutes in length, need to be set up, watched, re-watched, stopped, explained by the person presenting the clip, cross-examined on, and determined whether the video clip has been altered, is a fair representation of what actually happened, and whether the video clip is more prejudicial than probative (i.e. misleading versus reliable) or more probative than prejudicial (i.e. reliable and representative of what happened versus misleading).
So, the HMC process involved being taken out of the hearing room and sitting with a Board mediator—who in the context of an HMC wears a different hat and is now case resolution officer. These same mediators also wear another hat in the context of Case Management Hearings (CMH) which sometimes are ordered to proceed before the actual hearing and at these CMH’s the mediator has the authority to make Orders against the parties with respect to procedural issues.
In any event, the HMC is conducted for the purpose of determining whether there are agreed facts, whether all evidence has been disclosed, determine the issues (and narrow them if possible), determine the anticipated length of the hearing, determine who the witnesses are, determine whether amendments to applications are needed, whether accommodations for disabilities are required, and basically any other thing that might impact the hearing. By going through an extensive checklist and having a longer discussion about how the case will go ahead (and not arguing about the facts), the intention is to streamline how the case proceeds so that as little time as possible is wasted. Through this HMC, a party may get some guidance on how a particular adjudicator conducts hearings, and the likely process that will be followed.
The HMC I was in yesterday, resulted in an adjournment because it was clear that the case would take at least 4 hours and there was only and hour left in the hearing block. Because of the HMC we were able to address the issue of whether we wanted to start now, cause this particular adjudicator to be seized with the case, and come back at some future date that might be several months down the road. [“seized” means that once an adjudicator starts hearing the case that adjudicator needs to be the one who finishes hearing the case]. For this case, neither side wanted to start and not finish because it is more difficult to keep yourself on track with months between hearing dates.
In my case yesterday, the HMC might also have managed to reduce the length of time needed to hear the evidence to the time available to hear the case. That didn’t happen, but it might have and if that were successful then the efficiency of getting the case dealt with would have been worth the exercise of the HMC.
FOCUS, FOCUS, FOCUS.
The HMC, from the issues it addresses as noted above, aims to narrow the focus of the case to the key and important issues. That goal, is also the goal that you (as the landlord or tenant) should be conscious of and aiming for. Whether you are the side bringing the application or the responding side defending an application, being focused has a ton of benefits—the most important of which is that you are more likely to win the case.
How does being focused help you win? The simple answer is that focusing your case forces you to understand your own case better. The better you understand your case, the more likely it is that you will be able to communicate your case to the adjudicator and therefore the adjudicator will understand what you are complaining about or will understand why you are not responsible for what the claim against you is for.
The ability to “focus” a case has a great many moving parts. If you think you are just “fantastic” at being focused I can tell you without a doubt that you are wrong. Brilliant trial lawyers with decades of experience, law clerks, paralegals, and support staff work hundreds of hours to “focus” their case. While LTB hearings are not major trials there is still a similarity and arguably more difficulty at LTB (where the ability to be ambushed with evidence is a part of the process).
So what does the process of being focused look like? There are of course the “facts” as you understand them. Then there is the “law”. Then there are the “witnesses”. Then there is the “evidence”. Then there is the format of the evidence (written, oral, digital, real). Then there is the issue of “time available to present a case”. Then there are the “human factors—nerves, perception, hearing, speaking, communicating”—in relation to every participant in the hearing. Then there are rules of procedural fairness and natural justice. Then there is the unknown responding evidence and argument. And to top it all off, there is rhetoric and the art of persuasion using all of these factors and likely others that I haven’t thought of now. To “focus” you need to put all of these things together (which involves a fair amount of guesswork) and ultimately, tell a story.
At the heart of all cases there is a “story”. The effective presentation of all cases is the art of story telling.
Interesting Concepts—but my hearing is next week. Practical advice please!
Practical Tip #1
Collect all of the documents that you think you will need. Typical documents include: the lease, notices of termination, emails, text messages, photographs, complaint letters, by-law reports, police reports, property standards orders, bounced cheques, bank statements, rental applications, and any other document that conceivably may be needed.
Put them in a logical order. By date, by incident, or whatever makes sense.
Create an index. Page number each document.
Make 4 copies (one for each of: other side, adjudicator, witness, yourself).
Drive a staple through each copy.
The value of this is that you are now able to find any important document, and refer every single person to the page you want them to look at in seconds.
Doing this will endear you to the adjudicator who otherwise spends a ton of time looking for the “right” page etc..
Practical Tip #2
For yourself, create a flow chart (bullet points), of every critically important thing you want entered into evidence. Write it out in a logical order (usually chronological). This will be the order you present your case. At each bullet point make a note of each page in your document brief (Tip #1 above), that supports the point you want to make.
If you follow your flow chart, regardless of how nervous you are, you will have presented your case and said all the things you wanted to say in support of your case.
Practical Tip #3
Take a hour or two to figure out the legal basis of your claim. Yes, there are Forms to fill out at the LTB. Each one of those forms is based on a section of the Residential Tenancies Act (RTA). You can read the actual law that causes the form to be created. You can do it for free from the comfort of your computer. Search for the Residential Tenancies Act on www.canlii.org. This is a free caselaw site. You can read all of the laws in Canada here for free. Narrow your search to Ontario, then search Residential Tenancies Act.
Once you have the RTA in front of you, just browse the index to the RTA. You will see the sections that apply to your case. Read those sections. You don’t need to memorize or become a legal genius. Just get a sense of what the law says about the application you are bringing, or defending against. The knowledge you gain from this can be tremendously valuable during the hearing.
Practical Tip #4
Go to the landlord and tenant board website. You should again browse the Landlord and Tenant Board Rules of Practice. Just read the ones that apply to your case. Further, browse the Interpretation Guidelines. These Rules and Guidelines address the things that typically happen at the Board. From adjournments, disclosure, fairness, service, etc., all of these issues are dealt with in the rules and guidelines. If you are familiar with “how the Board thinks” you have an advantage.
This article is running long so that will be it for now. I will continue on with presenting your case at the LTB in a future article.
Michael K. E. Thiele