Monday, 9 May 2016

Residential Tenancies Act Amendments: Consultation!

The Ontario government is going through a consultation process respecting proposed amendments to the Residential Tenancies Act.  Public consultation has been extended to the end of June 2016.  The government has produced a consultation paper that lays out many different proposed amendments and asks questions about issues arising in the context of residential landlord and tenant relationships.  Your comments are invited and may be sent to the following coordinates:

You can provide your input by email or by post. 
Mail:  Residential and Commercial Tenancies Unit
Housing Policy Branch
Ministry of Municipal Affairs and Housing
777 Bay Street, 14th Floor,
Toronto ON  M5G 2E5
Consultation by government with respect to legislative changes is one way that citizens have to tell the government what is wrong or right or what needs changing in any particular system.  The Residential Tenancies Act certainly takes a lot of criticism from many people--tenants and landlords--as there is fairly common perception that the RTA favours one side or the other.  Which way the bias goes tends to depend on whether you're talking to landlord or a tenant.
Anyway, as I was saying to one of my partners, I must participate in this consultation as it is only through participating that I think I have the moral right to complain when my suggestions don't rise to the top of the change pile.  That is a little tongue in cheek, but I do sincerely think that when offered an opportunity to comment about things we care about or which affect us that we should take the opportunity to do so. Who knows how our own experience may influence drafting or changes to legislation.  So that being said, how does one comment?  Above you can see the government website, the request for comments, the links and the where to send your thoughts.  That being said, what should one's comments look like?  Certainly, in this respect I am no expert but I considered it when preparing my comments.  The key I thought, was to be concise and speak directly to proposed changes in a clear manner.  Whoever is tasked with reading all of the "comments" is unlikely to spend a lot of time deciphering unintelligible rantings.  Having a clear axe to grind is likely not helpful either.  With this in mind, I thought that I would comment only on the proposals that I actually had something to say about.  I thought I would share my comments on the proposals with you just to see if this might spark a debate.  Anyway, below you will find an excerpt "proposal" from the government's consultation paper (link above) and my comment on that proposal immediately following it.


May 6, 2016
Residential and Commercial Tenancies Unit
Housing Policy Branch
Ministry of Municipal Affairs and Housing
777 Bay Street, 14 th Floor
Toronto, ON M5G 2E5

Dear Sirs:

Re:     Consultations to proposed changes to Residential Tenancies   Act Feedback and responses to discussion questions
Please accept this letter as my feedback and response to the consultation paper respecting changes to the Residential Tenancies Act, 2006.   I have been practicing residential landlord and tenant law for 20 years and have extensive experience in the Residential Tenancies Act .  As counsel, I represent landlords, tenants, and non-profit housing corporations.

1.2     Proposal: Explore whether to allow landlords to pursue certain issues (e.g., rental arrears, utility arrears, damage) at the LTB for up to 12 months after a tenancy has ended.

Comment:     The procedural blocks, the rules of evidence, locating the former tenant and serving the Plaintiff’s Claim, the time involved, and possible costs sanctions at the end of trial in the Small Claims Court serves to minimize/weed out frivolous and minor claims.  Removing cost/procedural barriers to litigation in a Landlord and Tenant Board process may invite litigation that would normally not be pursued.  The current system (Small Claims Court) generally limits claims to serious claims.  I don’t think the system should encourage minor claims that can be filed without consequences (i.e. costs) as it may fill dockets with trivial matters at the expense of important ongoing disputes between current landlords and tenants.

2.1     Proposal: Require tenants to disclose any issues that they intend to raise at rental arrears eviction hearings to the landlord prior to the hearing

Comment:     This proposal speaks to the issue of prejudice/trial by ambush.  The unfairness to landlords is the ambush on issues they have not prepared or have evidence for.  Presently, I see many Landlords object to tenant issues and then they are offered an adjournment or some time in the hallway to review the tenant’s evidence.  The offer of an adjournment causes further prejudice as the arrears grow.   Fairness dictates that everyone before the Board knows the case to be met (and it is required under s. 183 RTA).   The only change I’d recommend is that Landlords be given the right, in the face of any tenant issues being raised, to an adjournment that maintains the status quo.  Meaning, the case is adjourned with an Order requiring the tenant to pay rent for the remainder of the month from the date of the hearing (forthwith to the Landlord or into the Board) and all future rent arising prior to the return of the application in full and on time.  The failure to make these required payments leads to the “standard order” being made ( a voidable pay and stay order).  Failure to pay the required amounts should not prejudice the tenant’s right to file a T2/T6 or other tenant application.  The RTA does not presently support the self help notion of withholding rent for maintenance issues etc..  Proceeding as this comment suggests recognizes that the tenant has with-held rent for alleged outstanding issues but does not force payment for the “past” when some of the with-held rent may have been used for damage, alternate accommodation etc. for which the tenant intends to seek compensation/abatement.  

2.3     Proposal: Explore whether any changes should be made to the process for appealing decisions of the Landlord and Tenant Board to the Divisional Court

Comment:    There need to be extensive changes in the Appeal process.  The change though, is not only in the Residential Tenancies Act .  The change needs to also  be in the Rules of Civil Procedure .  Landlord and Tenant Board appeals are currently dealt with as regular appeals of Court judgments.  It needs to be recognized that Landlord and Tenant Board orders are not regular court judgments and a unique appeal process should apply to these orders.  

Landlord and Tenant Board processes are Board driven in that the Board schedules a hearing and moves the case along once the application is filed.  Currently, an appeal to the Divisional Court is party driven , meaning that the Court does nothing to move an Appeal along after the filing of a Notice of Appeal.  An appeal to the Divisional Court will sit, for years, if the parties do nothing.  The automatic stay on eviction will stay in place so long as the appeal is pending.  The Divisional Court registrar does not actively exercise the dismissal power under the Rules of Civil Procedure.

The Divisional Court motion process to dismiss an appeal for delay or failure to perfect or for being frivolous and vexatious and without merit requires the preparation of a motion record, affidavit(s) and factum.  It is expensive relative to the complexity of many appeals.  This is unfair to landlords.  In my experience, Landlord’s rarely appeal decisions given the costs, which deprives us of appellate authority on important Landlord and Tenant issues.

Deciding to appeal a Landlord and Tenant Board decision is effectively impossible for an un-represented person.  Done properly, an appeal requires a Notice of Appeal, Certificate Respecting Evidence, Appeal Book, Compendium, Factum, Certificate of Perfection, Transcripts, and Requisition.   All of these are required in triplicate for the Court and a copy for the opposing side and one for yourself.  I’ve done dozens of appeals and with lots of experience it takes me days to create the final product that is an Appeal to the Divisional Court.  For many appeals it is too complicated and expensive a process.

I recommend an over-haul to appeal rules relating to Landlord and Tenant matters.  The process should still trigger an automatic stay of eviction on the filing of a Notice of Appeal.  However, that filing of the appeal should result in an automatic Order requiring the tenant to pay ongoing rent in full and on time and to file proof of payment with the Divisional Court registrar.  The landlord should on requisition to the Registrar be able to get an order lifting the stay if ongoing rent is not paid on time.

The Appeal process and hearing of the Appeal should be Court driven .  However, a three judge panel of the Divisional Court is too high a level of Court for most appeals.  The appeal should be to a single judge of the Divisional Court.  The Appeal should be heard as a “motion” on a regular list of the Superior Court with a Superior Court Justice putting on his Divisional Court hat for the purpose of the Appeal.

The Landlord and Tenant Board should prepare an extensive form laying out the traditional/usual grounds of appeal that are normally pursued.  The landlord or tenant would then file the appeal form with the Landlord and Tenant Board and the Landlord and Tenant Board would file the Appeal with the Divisional Court after preparing a record (see below).  Various check boxes on the Notice of Appeal form and space to allow an explanation of the reason for appeal should be provided to the prospective appellant. .

The Landlord and Tenant Board would prepare a Notice of Stay (upon filing of the Appeal) and serve it on the Sheriff.   The Landlord and Tenant Board would collect the appeal fees charged by the Divisional Court.  The LTB would then prepare the “Record” of the proceeding (similar in the way the Federal Court Rules require an adjudicative body to deliver the record to the Federal Court in a Judicial Review proceeding).  The Landlord and Tenant Board would prepare a transcript of the proceeding (estimate the charge and charge it to the appellant before it is prepared) and prepare an appeal book with all of the exhibits and evidence that was before the Member.  

The Landlord and Tenant Board would then file the Notice of Appeal and the Record with the Superior Court/Divisional Court and set the matter down for a hearing before a Divisional Court Judge.  At that point the LTB is finished unless the LTB is intervening in the appeal.   The parties are served with a copy of the Notice of Appeal, the Record, and the Hearing date of the Appeal.   The parties are provided with a form advising that they can prepare a factum, book of other documents, evidence, whatever they would like to submit (no new evidence needs to be explained) and that they must serve it and file it with the Court by a certain number of days before the scheduled appeal.   Failure to comply and the implications of that are left in the discretion of the Judge scheduled to hear the appeal.

I think the foregoing would be highly effective in moving appeals forward–quickly and efficiently while preserving the importance of getting appellate authority on important issues within residential Landlord and Tenant law relationships.   The key is having the system drive the process and not require or rely on the parties to take action to move an appeal forward.  The present injustice is largely in the ability to file an appeal and sit back and do nothing without much consequence.

3.1     Proposal: Explore whether to allow landlords to terminate a tenancy based on violation of no-smoking provisions in tenancy agreements.

Comment:     Medical marijuana is the next big problem.  Tobacco is fairly easy as are e-cigarettes and breaching a non-smoking clause does in fact lead to evictions as the contracted ground of “non-smoking” is a lawful right interest or privilege.  A breach is enforceable through the N5 and as long as the prohibition of the behaviour can be shown to be rational/reasonable then eviction follows. Hence it is enforceable in current RTA.  What would be useful is a clarification of what is meant by “lawful right interest or privilege” with an indication that lawful rights include contracted terms in lease agreements that are not otherwise voided by the RTA.

Medical marijuana is a growing issue as neighbours are bothered by the smell and the second hand smoke of medical marijuana is bothering neighbours and landlords.  Tenants with authorizations claim smoking it is a right.  Getting them to go outside or smoke at a window is not too difficult in the summer—but the winter is a real problem as they don’t want to go outside when it is very cold and hence they smoke inside.   Balance the right to medicine, duty to accommodate (HRC) and the right of others to not have to breathe marijuana smoke.

4.1     Proposal: Allow emailing of certain landlord and tenant notices, upon consent of both

Comment:     Landlord and Tenant Board hearing rooms are not equipped to deal with electronic forms of evidence.  What if the form, notice, does not comply with the RTA.  How does a tenant prove the non-compliance in a Board hearing, how is the evidence of the notice or form that was actually sent produced into evidence?  In printing the document that was electronically sent there is the possibility of manipulation of the form/notice just by the program, printer, etc..  In circumstances where the form or notice becomes an issue the lack of a hard paper copy is going to make hearings very difficult.   Adjudicators will be asked to look at smart phones, tablets, laptops and none of those documents will form part of the record.  We need paper until the Board can receive electronic forms of evidence.

Comment:     The rent increase guideline formula is becoming increasingly irrelevant as the number of exempt units from rent control increases.   The rent increase guideline formula needs to bring into its application rental units that are otherwise exempt under section 6(2).  To encourage development and building rental units the exemption is fair to maintain but I think the exemption should be capped at 15 years.  After 15 years those exempt units should be subject to the rent increase guideline.   Amend section 6(2) to be a sliding time-line.   Landlords are realizing that the exemption can be used for eviction purposes contrary to the security of tenure philosophy underpinning the RTA.

These are my comments on the proposed amendments.

Michael K. E. Thiele

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