HOW YOU CAN BE MISLED by the LTB's ZOOM hearing process?
It is no secret that I am most definitely not a fan of the Zoom hearing process used by the Ontario Landlord and Tenant Board. For anyone who has done both in person and Zoom Hearings the qualitative difference in the Justice achieved is palpable. A virtual hearing simply can not deliver the same "data" that a ZOOM hearing delivers. I know, it's "odd" to call it data but in a sense that's really what it boils down to. What the adjudicator hears, sees, senses, observes--directly and indirectly--of the parties, of the witnesses, of the representatives--in the virtual forum is a poor substitute for the data obtained live and in person. The fact is "stuff happens" in virtual contexts that couldn't or wouldn't happen in person or would not be tolerated if the parties were a few feet in front of an actual live adjudicator. People--especially older folks and less educated folks--communicate better face to face than face to screen.
There are countless examples of the "stuff" that "happens" on the virtual platform but it's rare to see it and watch it escape review. In this article we will see how the process of a virtual hearing denied a fundamental principle of Natural Justice. That being the right to be heard. How, you may ask, is the denial of a right to be heard not reflected in a record (transcript) of a proceeding? How could an adjudicator deny such a fundamental right---innocently and unintentionally? How can a person with a right to be heard--mistakenly agree not to be heard? Seems almost impossible, but in the world of virtual hearings it is possible and the Endorsement cited below is an example of this happening.
I am going to review a recent Divisional Court Appeal decision (below), and describe what I think happened--and why it is wrong. What happened in this case happens quite regularly and you'll see it if you spend enough time in LTB ZOOM hearing rooms waiting, waiting, waiting.
The case I am reviewing, is the case of Da Silva v. Kutterer, 2026 ONSC 5015 (CanLII). The case is resolved by Endorsement and the Landlords' appeal is dismissed by the Honourable Justice.
There isn't a lot of detail in the Endorsement and at no point will I suggest that the underlying LTB decision was correct or incorrect--frankly, there is insufficient information to offer such an opinion.
It appears that this was a case about a Landlord having served an N12 for Landlord's Own Use. An N12 is a 60 day no fault termination notice requiring a tenant(s) to move out so that the landlord (or whoever is indicated on the form) may move in. The recounted facts suggest that the tenant(s) alleges that the Landlord(s) never moved into the rental unit after they moved out pursuant to the N12. Instead, the landlords took advantage of the vacant unit, fixed it up, and then sold the property. That a landlord(s) would do this (whether or not Da Silva) did) is a notorious problem with N12's.
If a landlord serves an N12 in bad faith (by evicting, not moving in, and selling the property), tenants may file a T5 Application to the Ontario Landlord and Tenant Board seeking compensation from the landlord for a bad faith eviction [anyone reading should note that there are several different actions that constitute bad faith--not just failing to move in and selling]. In this case, the tenants filed a T5 Application alleging just what was said above--that the landlord evicted them, renovated, never moved in, and sold the property. On these bare facts (if accepted), this is indeed a bad faith eviction.
The tenant(s) were successful in their LTB application and won some compensation. The LTB heard only from Mark Da Silva--for the landlord only. Present with Mark Da Silva, at the LTB hearing was his co-owner and SPOUSE, Tamara Milanovic Da Silva. She did NOT testify. This fact is extraordinarily odd--so odd as to be absurd--but clearly this is what happened.
Is there an explanation as to why? Yes, I will suggest the reason why is "ZOOM" and the mischief the process creates.
As you read through the Divisional Court Endorsement you can see that the Landlords were unhappy with the decision and sought to appeal the LTB adjudicator's decision against them. Feeling wronged, the appeal makes sense (though perhaps an application for Judicial Review would have been more useful). As part of the Appeal, the appellant landlords were alleging a denial of natural justice--i.e. procedural fairness--asserting that the LTB adjudicator denied Mr. Da Silva's spouse from testifying.
If "true" this is indeed a very big deal and reasonably a serious legal error warranting a re-hearing of the case. While the LTB adjudicator heard from Mr. Da Silva--she determined him to not be credible. Perhaps, if the adjudicator had heard from Tamara Milanovic-Da Silva, she would have heard corroborating evidence (boosting his credibility) or perhaps would have heard other evidence that would have been compelling and established that the Da Silva's did in fact occupy the premises for at least a period of time.
That the ability to testify is Central to the defense against the T5 application requires you to understand that there are indeed legal excuses that allow a landlord to serve an N12, evict, renovate, not move in, sell the property, and NOT be liable for a bad faith eviction. The reasons for why things were done or not done after evicting tenants on an N12 are critical to determining whether a landlord is liable to a tenant. For a T5 to be successful, tenants must prove much more than simply: N12, eviction, renovation, Landlord not moving in within a reasonable time, to win. The tenants must establish bad faith--for which there is sometimes a rebuttable presumption and sometimes no presumption (against the landlord) at all. Absent a rebuttable presumption the tenant's burden of proof--i.e. the difficulty of proving the case--is somewhat increased. That said, we note that the presumption is "rebuttable"--meaning there are legal excuses for not doing what the N12 required a landlord to do.
Rebutting the presumption (of bad faith), falls to the landlord in a T5 application [the landlord has the burden as the tenant has the required element of proof by presumption]. However, even where there is no presumption of bad faith, it is still a very good idea for a respondent landlord to prove good faith as opposed to simply relying on the burden of proof to argue that the tenant did not prove with clear, cogent, and convincing evidence that the N12 was delivered in bad faith. Landlords should aim to do more than just rely on the balance of probabilities test to claim victory if the evidence against them seems weak.
In this case, and at the Divisional Court, the landlords (appellants) were asserting that the LTB refused to allow Mr. Da Silva's wife to testify thereby denying her natural justice/procedural fairness rights. The Honourable Justice Schreck, as is rather logical to do, turned to the transcript of the LTB proceeding to determine whether there was any merit to the appellants' assertion that Mrs. Milanovic-Da Silva was denied the opportunity to testify.
At paragraph 6 of the Endorsement, Justice Schreck sets out portions of the transcript of the LTB hearing. Given the opening line ("Okay. And who do I have for the landlord?"), we know that this is the start of the LTB hearing. If you are familiar with the virtual hearing structure (ZOOM platform), the Adjudicator will have been in a break out room (usually called the hearing room) and the main room (the one you are in when you sign into a ZOOM proceeding) will have been staffed with a moderator. The adjudicator, the vast majority of the time, has no specific knowledge of what moderators are telling folks who are signing in to an LTB hearing.
So, what do moderators do? They have lots of tasks. These include: taking attendance, determining what each person in the square on the screen is there for, determining the role of each person who signs in, ensuring that the person in the screen square is present in the room, naming the persons (the screen name) with the LTB descriptors/letters, determine who is a party, witness, public observer, representative, determine who is looking to meet with duty counsel, maintaining lists and shepherding parties to a DRO (Dispute Resolution Officer), moving parties into different rooms, keeping track of parties joined by telephone, maintaining notes on internal dockets used by the adjudicator, prioritizing the list and moving parties as per the adjudicator's instructions, and otherwise answering questions from folks who sign on. AND ALL OF THIS HAPPENS without a Zoom recording of it happening (i.e. you can't go back and listen to this).
You can imagine--a moderator's job can be busy. The job gets more difficult with unruly folks who are angry, confused, mentally ill, frightened. ZOOM only works if one person at a time speaks. Imagine being a moderator having to speak with every person for every case for an entire docket where all the people are signing into ZOOM at the exact same time. That is the reality of the LTB system.
BACK TO THE DA SILVA's
What is clear (from the transcript excerpt) to anyone who frequently attends LTB hearings, is that the moderator when signing in Mr. Da Silva asked him who the person was beside him on the screen (it was his wife). Mr. Da Silva will have answered that the woman beside him was also a landlord--you can imply this from the transcript.
That answer should have resulted in Mrs Milanovic Da Silva being named a "landlord"--- a second landlord alongside Mr. Da Silva. This "naming" is for the purposes of ZOOM screen naming and organizing and the attendance docket (not actually anything legal vis a vis the proceeding). What a moderator writes down or marks on a screen is not legally determinative of anything--but the influence of it is staggering on the minds of self represented parties who are trying to cooperate through their nervousness and anxiety.
In this case, the moderator did not accept Mr. Da Silva's explanation that Mrs. Milanovic was a landlord. What very likely happened is that the moderator had the title of the case in front of him on the screen. The title of the case (where parties are listed as "landlords" or "tenants") did not include Mrs. Milanovic's name. Because it was a T5 application, the tenant was the original creator of the document. The tenant, by error or simply not thinking, left Mrs Milanovic out of the title and included only one landlord. As a result of how the LTB filing system works, Mrs Milanovic's name did not show up on the moderator's docket as a named "landlord". It doesn't mean she isn't an actual landlord with rights---it just means she wasn't named.
The moderator, being told that Mrs. Milanovic is a landlord, looks at the names on the application and not seeing her name on the Application refuses that description as offered by Mr. Da Silva. I can hear it in my head as the moderator says Mrs. Milanovic isn't a landlord because she isn't named as a landlord. I can "hear it" because I have heard it many times during sign in waiting my turn in these rooms. Unfortunately, the moderator's conclusion in this case is an incorrect legal conclusion.
We need to remember the scope of the moderator's duties and that the moderator is under a time pressure for signing everyone into the room and fulfilling all of their tasks. This is not a nuanced and relaxed pace--it is not a discussion between moderator and attendee. The moderator (working against the clock) needs a descriptor/category for Mrs. Milanovic and "landlord" isn't acceptable because she isn't listed as a landlord in the case name. The moderator pushes back and asks Mr. Da Silva--is Mrs Milanovic going to be a witness? Mr. Da Silva likes the sound of this and likely says "yes" [not knowing that "yes" has implications that he is unaware of]. As he says "yes" the moderator automatically states that Mrs. Milanovic will not be able to be in the hearing room with him and that she can only enter when she is called to testify. It's not a discussion. The moderator will have told Mr. Da Silva that he will represent himself--without the assistance of his wife as she would be a witness--and can't be in the hearing room. [yes, this is a common and legal practice]. The effect of exclusion is that Mrs Milanovic will not be able to hear any of the evidence, do any cross examination, help Mr. Da Silva present evidence, sort paperwork, think of questions, or participate in the case in any way while waiting for her turn to testify.
Being told what being a "witness" means--- Mr. Da Silva was/is stunned (anxious, upset, etc.) as he and his wife (as is normal and common), had a joint plan to defend this case together--and work together to tell the adjudicator what really happened. Being stripped of the support of his wife and his co-landlord he panicked. Perhaps the better of the two of them to testify would have been his wife and not him--maybe he was planning to help her give the evidence not actually lead the defence against the application. Being told she would be excluded because she is a witness---Mr. Da Silva likely objected saying something along the lines of needing her support to help him with the case--or perhaps that she was the more important of the two of them to present the case.
Remember, this is a moderator under time pressure. Hearing the word "support" is a magic catch all word for moderators. If there is someone on the screen before them that doesn't fit into the category of landlord, tenant, witness, lawyer, paralegal, and the person isn't a casual observer---the remaining best catch-all is "support person". Every party is entitled to have a support person along to make the party feel more comfortable--and sit beside them and help them through the hearing. The moderator would have told Mr. Da Silva that Mrs. Milanovic, as a support person could be with him but that she could not testify or say anything in the hearing.
I am certain that this is what happened---because this conversation is one that you can watch happen every day at the LTB. While I may be speculating above (my vivid imagination)---I've seen this show--many many times.
Mr Da Silva--being denied his wife as "landlord", having to remove her to a separate room as a "witness" will have heard the option of a "support person" as the most beneficial category for them. Having gone through this categorization exercise with an impatient or time pressed moderator---who is explaining very little or explaining without meaning--Mr. Da Silva feels like he survived a battle after being made to feel like he was somehow at fault or dumb. Again, I speculate---but you can watch this exact scenarios play out in the LTB ZOOM rooms every day.
HOW CAN I BE SO CERTAIN--any corroboration?
That the foregoing interaction with the moderator happened (though there is no recording) sounds like speculation---right? It does, except that at paragraph 6 of the transcript you read this:
ADJUDICATOR: Okay. And who do I have for the landlord?
MR. DA SILVA: You have Mark Da Silva. And ... my wife, Tamara, Tamara Milanovic. But she's, she'll be silent, I guess is the requirement.
Ask yourself, why does Mr. Da Silva say the above? The only reasonable explanation is that this is what the moderator told him was necessary for his wife being beside him.
SEE HOW THE MODERATOR categorization impacts the hearing.
The transcript continues and now Mr. Da Silva has been moved into a break out room (i.e. the hearing room), away from the moderator.
ADJUDICATOR: Okay. So it .... So, she's not named in the application. [meaning Mrs. Milanovic is not obviously a landlord from the face of the document filled out by a tenant who wouldn't know any better]
MR. DA SILVA: That's correct. [likely panicking that the adjudicator is going to remove her--as the moderator had threatened]
ADJUDICATOR: Hmm. [a big pregnant "hmm" that a lawyer or paralegal will infer the adjudicator contemplating whether the wife could be a landlord--because we know she could be]
MR. DA SILVA: But just for awareness. [interpreting the "hmm" as threatening her removal and trying keep her beside him]
ADJUDICATOR: Okay. So, what's her role here today?
MS. MILANOVIC DA SILVA: Support. [wife jumps in--needs to be there with husband--she too heard what the moderator said]
MR DA SILVA: Support.
The transcript, in my view is telling. Mr. Da Silva says "But she's, she'll be silent, I guess is the requirement". Where can he possibly have got that idea? No person attending an LTB hearing would have this notion in their head. It came from somewhere---and the "somewhere" is the moderator. My certainty comes from having listened to countless moderators tell parties (like the Da Silva's) what their legal status is for the purpose of the hearing. Parties, like the Da Silva's, accept the moderator's characterization as a legal ruling--a determination--and therefore feel bound to it.
How do we know that the Da Silva's took the position that they were both landlords? At paragraph 5 of the endorsement there is an acknowledgement that the eviction notice (N12) had them both listed as landlords.
The Honourable Justice Schreck seems, within the Endorsement, to be unaware of all the things that happen, which are unrecorded, in front of the LTB moderator. I wonder if Justice Schreck would have made the same findings; example: "At no time during the hearing did the appellants express ... nor did they indicate that she wished to give evidence or participate in the hearing." [paragraph 7 Endorsement], if Justice Schreck knew that the moderator at the commencement of the hearing block told Mr Da Silva and Mrs. Milanovic that she would not be allowed to give evidence.
Further, Justice Schreck finds "these arguments were not made before the adjudicator..." [para 11], and fair enough they were not made by Mr. Da Silva (presuming the transcript bears that out). But having seen self represented parties at the LTB many times their "arguments" tend to manifest not through "argument" but by leading facts--i.e. telling the story--such that the thrust of their story makes the argument. Had Mrs. Milanovic testified (or been permitted to speak), would she have testified about the obtaining of the insurance policy, the owner occupied nature of the policy, the move in date, the move out date, who she spoke with etc. etc., that would have made the insurance policy more compelling as evidence of occupation? Of course, it is impossible to know. And maybe, her testimony would not have made any difference at all. But maybe we would have found out that as between her and Mr. Da Silva that she is the actual "doer" in the relationship and that her husband does other work while she handles these kinds of details. If that was the case--who was best to testify? Was Mr. Da Silva thrust into the lime light as the "landlord" by the unilateral act of the tenant filling out the T5 Form inaccurately?
CONCLUSION
I intend this article to be about the frailty of the virtual hearing system. I am pointing out how the manner of proceeding virtually can deny justice to parties. This case, this Endorsement, I find illustrative of the kinds of problems that virtual hearings present----and there are a great many unjust aspects of virtual hearings that are swept under the proverbial rug. Here, the conduct of a party was shaped by the LTB moderator under a perceived legal authority that was unrecorded and unreviewable. The Adjudicator did not know of this---though there is a hint ["Hmmm" Para 6]--but the moderator caused an actual Landlord to not speak up for themselves. The Court, in its review function, is denied an ability for fulsome appellate review as there are no transcripts of what happens when you step into the virtual hearing room. Some random LTB employee starts asserting or defining an attendee's "legal rights" under some apparent authority of which no layperson would know is unofficial and not actually adjudicative.
A lesson to be drawn from this? Lawyers and paralegals already know to take, with a grain of salt, what a moderator directs. The public though, self represented landlords and tenants, you all need to know that the Rules of the Hearing are administered by the Adjudicator--no one else. Moderators should authoritative--they impose Order (it is their job) and in many respects they are often correct in their function. But not always. Therefore, if you have a point to make--you need to be assertive (polite and not argumentative--yes, the balance is hard) and raise important points with the only authority that actually matters in the hearing block---the Adjudicator.
If only Ms Milanovic had said to the adjudicator--"The moderator told me I can not testify--is this true?"--the presentation of the entire case would have gone differently. If she had asked that question the adjudicator would have done the inquiry to determine her status as landlord, witness, or support. There is no question that she would have been allowed to testify--or that a process other than "sit quietly" would have been adopted. Perhaps the landlords would still have lost and appealed--BUT, the transcript that Justice Schreck relied on (because that is literally what you do) would have shown the desire to testify, give evidence and exercise the rights afforded by procedural fairness and natural justice.
Michael Thiele
September 2026
