Presenting your case at the Ontario Landlord and Tenant Board

Nervous?  How do I argue my case

How do you present a case at the Ontario Landlord and Tenant Board?  I get this question often and my initial joking reply is “just like you see on television”.   After a brief chuckle the conversation I’m having explores the nature of how an administrative tribunal (like the Ontario Landlord and Tenant Board) functions versus how a Court functions.   Both venues (Court and Board), are adversarial in that they pit one side against the other and allow each side to present evidence, cross examine, refute and corroborate and ultimately make arguments to the adjudicator/Judge why one particular side should win the case.

Beyond the fact that Courts and Tribunals (Landlord and Tenant Board specifically) are adversarial they couldn’t be much different in all other respects (i.e. they truly are nothing alike).   Depending on your point of view, presenting your case at the Landlord and Tenant Board is friendly, easy and the epitome of Justice served or it is a nightmare devoid of rules of evidence, fairness, and fraught with ambush.  Of course, your experience does not have to be at either extreme but I mention the extremes because the structure of a Board hearing is so loose and freewheeling that parties often enough come away from the experience feeling like they have just experienced one of these extremes.

Why is the Board process so loose and freewheeling?   Ultimately it comes down to the legal rules that govern the procedure in front of administrative tribunals.  As an administrative tribunal the Ontario Landlord and Tenant Board is not bound by the Rules of Evidence nor any other particular method of conducting a hearing.  The LTB processes are intentionally and purposely wide open to any kind of evidence being admitted and any kind of process being adopted. The idea is that regular people can simply appear before the Board, and without any specialized training they can tell their story and the adjudicator will receive the evidence without all the technicalities that turn Court cases into logistical and strategic marathons that seemingly go on forever.

An adjudicator at the LTB is directed by the Residential Tenancies Act to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter (section 183 Residential Tenancies Act).   If you look closely at this section (183), you will see that an adjudicator can adopt different styles for different cases depending on the nature of the case and even the abilities of the parties.  The process can follow the formalities of a Court proceeding or it can be inquisitorial where the adjudicator acts like an investigator and just asks questions or it can be a conversational style or frankly any variation of these that meets the test of section 183.

Because of section 183, you should not expect the case to proceed in the way you see on television.  It is unusual for there to be opening statements—in fact that is rare.  It is more common for the adjudicator to ask the applicant (the side bringing forth the application), for a quick summary highlighting what the application is about and what the party hopes to achieve. The adjudicator will often then ask the other side something along the lines of “do you agree that this is what the case is about?”.  From that opening the adjudicator tends to figure out what kind of case he or she is listening to and then adopts a process that seems appropriate for the circumstances.   It is worth noting that if neither the landlord nor the tenant says anything then the adjudicator will conduct the hearing in the way that they choose.  You should not expect the adjudicator to say “how would you like for this hearing to proceed?”.  If you have a desired format, or want to proceed in a particular way, then it will be up to you to assert that format to the adjudicator and try to get the adjudicator to adopt that format.  If you simply sit quietly and wait to be called upon then the format of the hearing will be determined for you.

Should you have a preferred manner of proceeding?  As a lawyer doing this for over 20 years I certainly have my preferences. However, how I would like for a case to proceed really depends on the nature of the case, the strength of the witnesses and what the evidence I anticipate to lead looks like (oral, documents, video, pictures, strong witnesses, intimidated witnesses). Applying a cookie cutter process to every case is usually not the best choice because the formality of a specified structure (like Court Proceedings) is unlikely to work in a high volume and summary system like the Landlord and Tenant Board.

THE HEARING 

Ontario Landlord and Tenant Board hearings are scheduled in large blocks of cases. Your case will be one of many, all scheduled to be heard—typically, within a 3 hour block of time.  It may very well seem impossible for every case on the docket to be heard within the time allowed.   Sometimes that is true and when that happens cases that are not reached and even cases that are started but not finished are adjourned to some future date (which is almost never the next day).

Because the hearing blocks are sizeable and time is limited, it is very helpful to be organized and ready.  If you are a landlord and it is your application you will obviously want the case to proceed.  You may find yourself frustrated by a tenant who spends a lot of time with duty counsel and who then seeks an adjournment(s) for any number of reasons.  While you can’t prevent some of the delays, you should minimize any delays that can be attributed to you.  Hence, have your evidence ready, have your documents filled out, provide disclosure in advance of the hearing to the other side and have at least three copies of everything available at the hearing.

Too often I have heard parties and witnesses state during the hearing that the information, document or evidence they are referring to is “at home”.   For your own sake, don’t be the landlord or tenant who has left the important evidence at home.  The usual response to “it’s at home” is “that’s too bad”.  In rare circumstances a landlord or tenant may be permitted to make a post hearing submission—but that is rare.  Another common refrain is that the “adjudicator can call so and so” who will confirm the truth of what the person is saying.  Please note, the adjudicator does not call anyone. If there is a person who could testify then it is the obligation of the person who wants that evidence to call the person with the information as a witness at the hearing.   The LTB has summons to witness forms and there is a process that either landlord or tenant can use to compel the attendance of witnesses.  If the person you want to call to testify does not want to come voluntarily then you might want to think about summonsing that person.  The point to take from this is that the case will be decided on the evidence that is produced and entered at the hearing.  For the purposes of the case, the “truth” will be determined based on the introduced evidence and not on all the evidence that might have been produced.

WHAT ABOUT LETTERS, AFFIDAVITS, or other STATEMENTS?

Sometimes, in fact oftentimes, witnesses don’t want to attend a hearing.  In fact, I think you could almost call it a rule of nature that a person’s willingness to testify decreases in proportion to how close the hearing date gets. All of a sudden the witness who was gung ho and behind you 100% will discover that they can’t get out of work, need to visit (insert name of sick relative here), or somehow they don’t seem to answer the phone anymore or are out of town.   The fact is that a great many people would rather have a root canal than testify in a legal proceeding.

This reluctance often leaves parties grasping at straws trying to figure out how to get a reluctant witness’ evidence.  In these circumstances we see people providing letters, sworn affidavits, petitions (signed by everyone in the building!), emails, text messages and voicemail recordings.  All of these forms are evidence are offered instead of the live in person testimony of the individual.  Is this acceptable?  Is this admissible?

The freewheeling nature of the LTB means that all of these letters, statements, emails, texts, recordings, affidavits, are admissible and may be relied upon to the detriment of the “other side”.   The hearsay objection that one would normally expect to raise is not exactly a “proper” objection at the LTB.   As an administrative tribunal the Board is entitled to receive hearsay, and hearsay evidence is just another kind of evidence that the Board will consider.

While the evidence is admissible, and it may be relied upon by the adjudicator, the nature of this evidence is still problematic.   The fact is that all of these forms of evidence are not subject to cross-examination and weighing the credibility of the information in a piece of paper is effectively impossible to do when that information is carefully scripted to tell a particular slanted version of events.

For that reason, if an opposing party objects to the admission of a letters, text, petition, affidavit, recording, etc., you will likely hear the adjudicator say that the objection is “over-ruled” (meaning the document is admitted), but that in considering the document the adjudicator will consider the “weight” of the document.  By this, the adjudicator means that they will only give the written document the importance it deserves and discount the reliability and probative value of the document because it is in fact hearsay.   To rebut the information contained in a written document (recording, text, email, etc.), is fairly simple to do if you have a live witness present.  Simply have that live witness point out the shortcomings in the document and highlight how the information is inaccurate, incomplete, and/or misleading.  Once that is done—the evidence is likely of very little value.

SUMMARY

As you get ready to attend an LTB hearing you should expect an informal process that accommodates the “non-lawyer”.   You don’t need to know special rules or be an expert in cross-examination to appear before the Board.  The LTB process is intended to be accessible to lay people.

Does this mean that you are just as well off representing yourself as you are with a lawyer or paralegal?   Absolutely not!    In my opinion the open nature of LTB hearing procedures puts the self represented person at a greater disadvantage at the LTB than if the unrepresented person faced off against a lawyer or paralegal in Court.   The rules of evidence, and all of those “technicalities” that people sometimes complain about are actually the result of many hundreds of years of legal proceedings that recognize the needs for procedural protection and reliance (if at all possible) on only the best evidence.  With the safeguards of the Court process removed from the LTB (and most other administrative tribunals), there is an increased risk of an applicant or respondent being taken advantage of or being out maneuvered by someone who is familiar with and comfortable with working in an adversarial process.  For that reason, I do recommend to landlords and tenants that if it is affordable and the stakes of the hearing are high enough that they are better served by being represented by a lawyer or paralegal who is experienced in the freewheeling nature of the Ontario Landlord and Tenant Board.

In a future blog, I will continue the theme of this blog and write about preparing your evidence and how to tell your story to the adjudicator in a way that is compelling and logical.

Michael K. E. Thiele

www.ottawalawyers.com