Preparing
for a Hearing at the Landlord and Tenant Board
 |
| Heather Campbell |
This article is prepared by my very kind assistant Heather Campbell. Heather joined my firm, QTMG LLP in 2011 after completing a Law Clerk Degree at Algonquin College. Heather was one of my students in Residential Landlord and Tenant Law class at Algonquin and came to my office as part of a field placement in that program.
Heather works very closely with me in my Landlord and Tenant law practice and she has gained tremendous experience in preparing cases for hearing by gathering and organizing evidence. If you have questions about preparation and would like Heather's perspective please feel free to comment below.
So you’ve survived the application process, served your Notice of Hearing and now you’re gearing up for the big day, your hearing at the landlord and tenant board.
Many believe that given the informal
nature of the Board that no further preparation or evidence gathering is
necessary however this is a misconception. It is not enough to rely on oral
testimony at your hearing. The stronger the evidence you can provide to the
Adjudicator, the better your chances of success at your hearing. The following
are some suggestions on how to gather evidence and prepare the evidence for
your hearing.
By-Law
Reports and Orders
When it comes to maintenance issues, whether
you are landlord or a tenant, always contact your city’s By-Law department.
Having a By-Law Officer attend at the rental property, inspect the issues and
make an Order go a long away to supporting a claim for maintenance issues.
If you are a tenant, a by-law report may
confirm the existence of an issue and an Order to repair will help to prove
that your landlord is not in compliance with their duty to repair or provide a
unit that is fit for habitation.
As a landlord, a by-law report could
help to refute a tenant’s claim that the unit is not in compliance with the
local by-laws or building codes. In the alternative, if you have been issued a
work Order and have taken steps to resolve the issue, it can go to explain any
delays or show your good faith in committing to resolve the issues.
Further, if necessary, a by-law officer
can summonsed to appear at your hearing and give testimony. The testimony of
by-law officers is often viewed as impartial and could go a long way to a
favourable judgment.
Photographs
When you have the ability to visually
illustrate your concerns, do it. Use colour photographs to show damage, mold
and other violations.
Photographs should be date and time
stamped. It is also a good idea to take photographs over time, to show if
things have gotten worse, improved or changed.
Landlords and tenants alike should take
photos at move in and you can use them to compare with the current state of the
unit.
Written
Correspondence
In a tenancy situation, the more you can
do in writing the better. Save correspondence from between yourself and your
landlord or tenants. Maintenance requests, complaints, notice of entry or
repair, etc. should all be done in writing, preferably through e-mail where
allowed under the rules of the Board.
When you are able to produce e-mails or
chains of correspondence the Adjudicator no longer has to rely on just your
oral testimony, they can now see both sides of the conversation as it happens.
Presentation
of Evidence
It is always a good idea to present your
evidence in a clear and organized manner. Consider stapling all your documents
together or making a booklet of evidence. Paginate your documents to make
finding that item you are referring to easy for the Adjudicator. Whenever
possible make sure that the evidence that you’re producing has a clear date on
it and if you are not the author (or photographer) of the evidence make sure
that it is clear who created the documents or took the photos.
What
Should I include?
This is really determined on a
case-by-case basis based on the facts of your specific situation. A general rule of thumb is to think about
what you would like to see as the Adjudicator and provide the evidence you feel
would be most convincing.
Also, think about what the party on the
other side may be bringing forward and decide if you have evidence that can
counter or be more persuasive then what you believe you will face. Put your
best foot forward.
The
Rule of Three
When preparing evidence for a Board
hearing always prepare three sets of evidence, copy for yourself, a copy for
the Adjudicator and a copy for the other party. This is the rule of three.
Conclusion
Your case is only as good as the
evidence that you put forward, so take your time in preparing evidence for your
hearing. Do not rely solely on your own oral evidence or those of others that
have a stake in the outcome (other tenants, property managers etc). Taking time
the time to properly organize your evidence will make your case easier to
present and allow the Adjudicator to follow along with you. Be thorough and put your strongest evidence
forward.
Hello Heather and Michael,
ReplyDeleteI have a situation and would love any information you can assist me with. Is there an email address i could contact you at?
Thanks in advance,
K
Hi Krista: You may reach me at my office through our website www.ottawalawyers.com.
DeleteHi Michael,
ReplyDeleteWhat if an adjudicator prejudiced against a non-native English speaker?
Thanks a lot!
Hi: An adjudicator, like a Judge of the Superior Court, is presumed to be impartial. If there is something which calls into question the impartiality of the adjudicator or if there is something which makes it appear that the adjudicator is not impartial then it is correct to raise the issue with the adjudicator and presuming the matter is still proceeding to ask the adjudicator to not hear the case (i.e. recuse himself/herself).
DeleteIf the case has already finished and you simply have a bad feeling about how you were treated the only thing that can practically be done is to seek a review of the Order or appeal it. In preparing a review or appeal you should get a copy of the recording and pay a Court reporter to transcribe the hearing. Reading the transcript should reveal the bias or prejudice that you believe that you were subjected to.
I would highly recommend that you get a lawyer or paralegal to help you with a review or appeal. I think it is very difficult for an individual to assess what happened in their own case---your own perception of the matter is not likely to be objective. You need the view point of a non-party to the case.
Lastly, I will mention that facing tough questions and a serious amount of criticism from the adjudicator or having the adjudicator be impatient with you is not necessarily a sign of prejudice. Going through a hearing does not mean that the adjudicator has to sit there quietly and let you proceed as you wish. There are Rules for hearings (see the Landlord and Tenant Board Rules of Practice) and the Board is directed to by the Residential Tenancies Act to adopt expeditious procedures. It would be a mistake to interpret the actions of an adjudicator in keeping you to the point or being short or asking difficult questions as being evidence of prejudice. In fact, in my experience before the Board in over 20 years I can't say that I've faced overt prejudice. I have had adjudicators recuse themselves for possible conflicts and certainly I've faced adjudicators who were incredulous at the evidence and let those feelings be known.
Hope that helps
Michael K. E. Thiele
Hi Michael,
ReplyDeleteI would say you are quite helpful to both applicants and respondents. Would you mind if I would like to discuss the following concern with you?
As per subs. 29(2) of RTA, there is one year limitation period before the date of applications for T2 and T6; per subs. 135(4), there is one year limitation period before the date of application for T1, too. Pursuant to the Divisional Court decision of Vlahovich case issued on Mar. 18, 2010, one year limitation period also applies to remedy.
I understand that before Vlahovich case, some members may not apply subs. 29(2) to grant relief for ongoing maintain issues. For example, the member, Dan Helsberg, determined at para. 6 of the Board file #: NOT-00927 that “While Section 29(2) of the Act states that an application cannot be made more than a year after the day the alleged conduct giving rise to the application occurred, in this case there is sufficient evidence to show the Landlords have been aware of this problem for more than two years and the leaking problem has continued unabated for that same period of time” and that total 29 months applied.
That being said, after Vlahovich case, it seems that some members may apply subs. 29(2) to application rather than remedy as in File #: TST-34695-12/34552-12AM, at para. 1 of which, the member, Harry Cho, indicates that “Pursuant to subsection 29(2) of the Act, the Board’s retrospective jurisdiction is limited to the 12-month period before the date of application.” However, at paras. 12, 13, and 29, Mr. Cho determined that 25, 39, and 17 months applied to remedies, respectively.
You may find the similar determination at para.9 (see below) of File #: NOT-16644-14AM, where Mr. Adjudicator Brian Cormier determined that a 50% rent abatement applied to 18 months.
9. The rent charged by the Landlord was $772.00 per month. The Tenant requested a 75% rent abatement over the last 18 month period of her tenancy because the rental unit was (75%) largely unusable due the lack of maintenance. It is improbable that the tenant and her young children were restricted to only 25% use of the unit. I will, however, allow a 50% abatement in the amount of $6,948.00.
Here comes to my question: The Board members can apply subs. 29(2) to applications but may not apply the same subsection to remedy even after the issuance of Vlahovich case. Is that so?
Thanks for your valuable time attending my concern.
Since the question has been remained unanswered, I try to answer it for them. I think it totally depends on a member's mood during the hearing. Otherwise, it doesn't make sense to find that a similar case will reach different outcome.
DeleteHi Michael,
ReplyDeleteI wonder how much you will charge as a legal representative?
Thanks!
HI:
DeleteIt seems a bit unseemly to discuss my legal fees on a blog like this. For specifics please feel free to email me directly. Speaking generally, I can tell you that lawyers traditionally charge based on an hourly rate plus taxes plus disbursements. Hourly rates vary greatly and are generally set by the years of experience of the lawyer, expertise, and the geographic location (i.e. Toronto is more expensive than Ottawa).
A discussion that doesn't seem to be resolving itself is the affordability of hiring lawyers for cases. The legal profession is increasingly regulated, more red-tape, more requirements and hence the cost to keep a law practice open has increased dramatically. At the same time, people's incomes have not increased at the same rate as the increase in costs so legal services have become less affordable. Hence the need to negotiate legal fees. Many people today try to negotiate block fees to keep the cost under control. That process has the lawyer and the client estimating the work and time that the case will take and finding a middle ground. Other options are to retain a lawyer on a limited retainer for specific tasks. The economic reality today forces the legal profession and clients to get a little more creative in their financial arrangements.
What is quite unfortunate in the Landlord and Tenant context is that "contingency" fees are effectively illegal. In the area of personal injury law you will find that accident victims have virtually no problem getting good legal representation because the area of law is conducive to commission based services and the law was changed in the late 1990's to permit "no fee unless you win" cases. A typical contingency fee is 30%---and at that number it seems that client's can get lawyers to work for them without needing to spend anything out of their own pockets. What I find quite unfortunate in the Landlord and Tenant context is that the Residential Tenancies Act specifically prohibits contingent fees at a percentage in excess of 10%. Capping fees at 10% effectively makes contingency fees illegal under the RTA.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael, I needed some advice. I have lived at this rental property since 1992 but recently the landlord has sold the house. I told him I need time to move out but he said that I had 2 months. I finally found a place and will be moving out July 26, 2015. In the meantime he served me with an N12. The eviction date is on July 6 but there will be hearing June 12. I served him with a T6 and T2 because he was phoning me at 6:30 in the morning about moving out. He would phone and hang up and keep calling. Also, there is mold in the house. I know that the new purchaser is a renovator and he is demolishing the inside and already has tenants lined up to move in. I have a disabled mother and need to buy time. I have another place secured for July 26, but is there anything you can suggest to plead with the adjudicator to let us stay until that day. The eviction date the landlord served on the N12 is July 6 so I need to a couple more weeks. Thank you so much for your time!
ReplyDeleteHi: I would like to ease your mind and tell you that there is absolutely nothing to worry about! Not only will you get the time you want you could probably have the case thrown out.
DeleteThe first ground to challenge the N12 form is this. The termination date in the Form needs to have been given to you at least 60 days before the termination date. Also the termination date in the N12 must be on the last day of the term. If you are on a month to month tenancy (which you likely are), then the termination date is NORMALLY the last day of the month. If rent is due on the 1st of the month and you pay rent for one calendar month at a time, then it is extremely likely that your monthly term runs from the 1st of any month to the last day of the same month. If this is your situation then the termination date in the N12 must be the last day of a month. You indicate that the termination date is July 6. Unless your monthly lease ends on the 5th of every month (i.e. you pay rent from the 6th of one month to the 5th of the following month), the N12 form that you served is absolutely void. Void as in unenforceable, case dismissed, landlord loses---there are very few guarantees in law, but this is one of them (if your monthly term runs the calendar month). The Landlord and Tenant Board has no discretion to evict, they can't just fix it to be okay, the Board has no choice but to dismiss the case.
If by chance your term does straddle calendar months and this N12 is valid--you still do not have to worry. You have been a tenant for almost 23 years. There is no way on God's green earth that the Board will not exercise its discretion in your favour. The adjudicator has the power to delay the eviction/termination date based on your circumstances. With a rental history of 23 years you could likely ask for and get a year to move (with the right explanation). There is zero doubt in my mind that an adjudicator would grant you another 20 days to move and get settled.
Aside from all of that, your description of the reason for the N12 (renovate and re-rent) makes the N12 illegal. The purchaser can only have the N12 served and enforced if the purchaser intends to live in the rental unit. Renovating and re-renting is a not a legitimate use of the N12 form.
Your T6 and T2 applications are something that I can't offer too much advice on as you don't give me enough information. Certainly though, you don't need either the T6 or the T2 to get the extra time you are looking for. If you have rushed the T6 and the T2 and are not quite ready consider withdrawing them and re-filing them when you are ready. You can file the T6 and T2 and claim for the one year of your tenancy immediately before the filing date. You can also file these applications when you are out of possession (but be aware that the passage of time limits the amount of your claim). The key to tenant applications is collecting evidence. For mold and repair issues the burden of proof is on you to establish that the landlord was/is in breach of his obligations. The same is true for the T2. Proving the case is difficult and a lot of work will go into it. It would be best if you had representation for these cases.
Lastly, perhaps print off a copy of this comment and when you go to the hearing talk with duty counsel if there is duty counsel there and show them this. If the paper work you have is consistent with what you described above then perhaps duty counsel will help you negotiate a solution with the landlord. If the landlord's real estate deal is dependent on providing the purchaser with vacant possession of your unit he is going to get quite a shock when he finds out that not only is he NOT getting the unit for July 6 but possible not at ALL. Under these circumstances the landlord might be more willing to sit down in mediation and negotiate a deal for vacant possession, on a mutually agreeable date and perhaps some compensation for you.
Good luck, let me know how it goes.
Michael K. E. Thiele
www.ottawalawyers.com
Correction---sorry the straddling calendar month confuses even me. For this N12 to be valid the term would have to be from the 7th of one month to the 6th of the following month to be valid.
DeleteHello Michael. I am almost in tears of relief! I am so thankful for your advice. I just told my mother that we should be fine until July 26. She was so worried that we wouldn't be granted the extra couple of weeks. The landlord's real estate agent was calling us saying that if the deal fell through, we could be sued by the landlord for up to $10,000. We would be considered bad tenants and not be able to rent anywhere else. Also, he said to us last Saturday, " Be prepared, we are going to be in for a fight and when the judgement comes down, the sheriff will evict us within 48 hours." I knew that some of what the real estate agent was telling us was to scare us but it did play in my mind. We have lived here since 1992 but I am so glad to be moving out! Thank you so much! I will keep you posted! I have printed off your comment to take with us!
DeleteHi Michael. I have a question for you. My mom lives on her own in an apartment. She had a stroke a few months ago and her balance isn't great. She requested to have grab bars installed in the shower. The landlord initially refused but then agreed after a gentle reminder about the Ontario Human Rights Code. He now wants her to sign a release absolving the management and contractors of any "liability of the performance and workmanship of the product". I don't feel this is a just request as this installation should be no different than any other building maintenance (eg. to maintain integrity of balconies, floors, etc.). Is there any legal basis to this request? Thanks in advance, Barry.
ReplyDelete