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, its "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 (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) to 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 not 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 lessened. 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. And even where there is no presumption, 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.
At the Divisional Court, the landlords (appellants) were asserting that the LTB refused to allow Mr. Da Silva's wife from testifying thereby denying her natural justice/procedural fairness. The Honourable Justice Schreck, as is rather logical to do, turned to the transcript of the LTB proceeding to determine whether there is any merit to their assertion that Mrs. Milanovic-Da Silva was denied the opportunity to testify.
At paragraph 6 of the Endorsement, Justice Schreck sets out 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 hearing. If you are familiar with the virtual hearing structure (ZOOM platform), the Adjudicator will have been in a break out 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 (i.e. 99% of the time), has no specific knowledge of what moderators are telling folks who are signing 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 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 a list 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 recording of it happening.
You can imagine--a moderators 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 perfectly clear to anyone who attends LTB hearings, the moderator when signing in Mr. Da Silva (and giving him his title as landlord) asked him who the person was beside him on the screen. I am certain that Mr. Da Silva answered that the woman beside him was also a landlord and perhaps he also mentioned that she was his wife.
That answer, should have had Mrs Milanovic Da Silva named as "landlord"--basically a second landlord, for the purposes of ZOOM screen naming and the attendance docket. Of course, what a moderator writes down is not legally determinative of anything--but the influence of it is staggering.
The moderator did not accept Mr. Da Silva's explanation that his Mrs. Milanovic was a landlord. What very likely happened is that the moderator had the title of the case in front of them. As it was a T5 application, the tenant filled in the Application and while doing so only named Mr. Da Silva as the landlord. The tenant, by error or simply not thinking, left Mrs Milanovic off and therefore her name does not show up on the moderators docket as a "landlord".
The moderator, therefore, starts to dig a bit further and I can imagine a conversation in the room being that Mrs. Milanovic isn't named as a landlord and therefore she isn't (a legal conclusion that isn't correct). The conversation, under a time pressure of signing in everyone in the room, the moderator then asks Mr. Da Silva--is she going to be a witness? Mr. Da Silva might then have been inclined to say "yes" or perhaps he did say "yes", at which point the moderator will have told Mr. Da Silva that he would then have to present the case himself--without the assistance of his wife--and she would not be able to hear any of the evidence, do any cross examination, or participate in the case while waiting for her turn to testify.
Being told the limitation of being a "witness" Mr. Da Silva was likely stunned as he and his wife (as is normal and common), had a joint plan to defend this case together--and work together to respond. Being stripped of the support of his wife he panicked. Perhaps (total speculation), the better of the two of them to testify would have been his wife and not him. Given this option---Mr. Da Silva would have said something along the lines of needing her support to help him with the case.
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 all catchall 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. Mr Da Silva will have heard this and he and Mrs Milanovic decided that she must then be a "support person".
HOW CAN I BE SO CERTAIN?
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:
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.
ADJUDICATOR: Okay. So it .... So, she's not named in the application. [not prima facie a landlord]
MR. DA SILVA: That's correct. [likely panicking that wife will be removed as moderator implied]
ADJUDICATOR: Hmm. [aware that wife could be a landlord]
MR. DA SILVA: But just for awareness. [trying to head off wife being excluded]
ADJUDICATOR: Okay. So, what's her role here today?
MS. MILANOVIC DA SILVA: Suppport.
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 "somewhere" is the moderator. My certainty comes from having listened to moderators tell parties (like the Da Silva's) what their legal status is for the purpose of the hearing and the implication of that determination. Parties, like the Da Silva's, accept the moderators designation 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 seemed, 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 ex. "At not 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. evidence--such that the thrust of their facts makes the argument. Had Mrs. Milanovic testified, 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.
CONCLUSION
I intend this article to be about the frailty of the virtual hearing system. I am pointing out how the manner of proceeding in this way can deny justice to parties. This case, this Endorsement, I find illustrative of the kinds of problems that virtual hearings present. Here, the conduct of a party was shaped by the LTB moderator. 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 and some LTB employee starts asserting or constraining "legal" rights.
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. Further, if you have a point to make--you need to be assertive (polite and not argumentative--yes, the balance is hard). If only Ms Milanovic had said--"The moderator told me I can not testify--is this true?"--then the entire case may have gone differently. If she asked that question the adjudicator might well have done the inquiry of her status as landlord, witness, support, and allowed her to testify. They may have won and the Appeal would not be needed. Perhaps they 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
