Too much support for such a small number of tenants

There are a number of tenant groups who claim to represent tenants. They include the Federation of Metro Tenants. CERA. ACTO and the legal aid clinic system.

From my perspective, they don't represent tenants, but only a small sub-set of tenants. They generally represent tenants who are on the margins of being evicted, generally because they haven't been willing to live within the rules. The 98% of tenants who pay their rent, report maintenance issues as they occur, don't blast music at midnight and who don't damage their units, find nothing of interest in the likes of ACTO, the FMT or the clinic system. The resources being spent on the tenant side, with community 80 legal clinics, CERA, ACTO and the Tenant Duty Counsel program all funded by government, is perverse. And if they have $100,000,000 between them, multiply that by 50 to see the real power, since they generally provide services to the same 2% of the tenant population.

The tenant duty counsel program (TDCP) funded by your tax dollars provides lawyers or community legal workers to staff outposts at Landlord and Tenant Board locations around the province. Tenants come in, supposedly prepared to proceed after seeking outside legal advice, free from the clinic system, and then they get another kick at the can with the TDCP, delaying hearings and creating unnecessary adjournments at the advice of counsel.

Moreover, there is the appearance of bias when the TDCP exists within the Landlord and Tenant Board offices. In two of Toronto's LTB offices, you need to go inside the Board office to get to the TDCP office. The workers for the TDCP appear to be Board employees, but giving advice to tenants only. This from a quasi-judicial administrative agency that must be seen to be even-handed. The relationship is too cozy for my liking. The also delay proceedings terrible. Read this letter sent this week to the Chair of the LTB and the managing director about an experience I had in Peterborough just this week:

May 26^th, 2009

Dr. Lilian Ma

Chair, Landlord and Tenant Board

777 Bay Street, 12th Floor

Toronto ON

M5G 2E5

Ms. Diana Macri

Director of Operations

Landlord and Tenant Board

777 Bay Street, 12th Floor

Toronto ON

M5G 2E5

Dear Dr. Ma and Ms. Macri:

Re: Concerns regarding tenant duty counsel program

I wanted to pass along some comments regarding an experience I had today in Peterborough. My concern is not just the experience today, but certainly it is today’s events that prompted me to put my thoughts to paper.

I understand the Board has no affiliation with the Tenant Duty Counsel program, and that is well enough and with good reason. However, there is often an appearance for landlords that the two are in some way connected. Take the Toronto North and Toronto East offices where the TDC office is inside the Board offices. Last year a policy was instituted with respect to certain agents who monopolized Board mediation rooms without a mediator being present. The rationale was that this gave the appearance that the legal representative worked for or with the Board.

I find that the deference given to the TDC program staff lawyers by Board Members borders on creating an appearance of a too-familiar connection. In Peterborough, the local community legal clinic’s practice of having the same staff lawyer (or community legal worker) being retained on files in addition to doing the TDC work, creates some serious issues. The Peterborough Clinic normally sends Ms. _______ both as TDC and as an agent acting for tenants who have retained the clinic. This letter is not about Ms. ________, who is capable and professional.

Today Ms. ________ had been retained in advance through the legal clinic on three complex matters. She was also doing TDC duties. Member Burke had finished most of the simple matters early in the hearing block, and had Ms. _______'s three files remaining. None of them had settled. Meanwhile, Ms. _______ was giving advice to tenants, working with the mediator on another matter, while Member Burke waited unable to commence any of the three matters. As you know, matters are too often adjourned due to scheduling overflow, even with super-blocks.

I grant you that this was an unusual case. In the Toronto area where I spend 80% of my time, the issue is more often the amount of time TDC staff spend with clients (not the Board’s mandate) and how it affects the proceedings. There are too often de facto adjournments as tenants spend an hour and a half in the TDC office, coming out ½ hour prior to the end of the hearing block with s. 82 issues and seeking an adjournment for counsel. Parties are advised to come to the Board prepared to proceed, either advancing or defending the claims. It seems that too many tenants use it as a time to prepare for the proceeding, with the urban legend, true or otherwise, that the TDC staff can absolutely obtain for them an adjournment.

In Peterborough today, Member Burke delicately asked Ms. ________ her intentions and expectations of when she would be available. He handled it very well. I expressed my concern to the Member in the presence of Ms. ___________ that the clinic should send the resources needed to fulfill its mandate both to the TDC program and to its clients. My position was that if they fail to do that, it should not be the Board or other parties whose money, time and valuable resources are wasted waiting for the clinic staff to become available.

In summary, there are two issues I hope you will examine:

1. The relationship between the Board and the TDCP which to the casual landlord observer seems overly cozy.

2. The deference given to staff of the TDCP as it impacts on the service delivered to other parties and the use of Board resources.

Thank you for taking the time to consider these concerns. Also, my compliments go out to your front-line staff on the manner in which they are holding up in what appears to be challenging times.

Yours very truly,

Harry Fine

President

Landlord Solutions

So I ask you, can we not expect the government, in this case the Ministry of the Attorney General, to at least give the appearance of impartiality, and to not have agencies it funds impede with the Board process which is beginning to grind to a halt...not in small part due to the TDCP.

I invite your comments.

Backlogs at the LTB becoming an issue

Access to justice is often moot if it's not swift. Landlord and Tenant law has traditionally been seen as an area of civil justice that required quick access to some type of dispute resolution system. Most cases are about rent, and the landlord is greatly prejudiced if rent arrears are permitted to mount.

But it's worse when it's about conduct, particularly if you have the tenants living in your home, and there are gang members, drug dealers, prostitutes etc. frequenting your basement while your family including perhaps young children are terrorized. There is no fast-track, not even a form of injunctive relief through the Superior Court if things get way out of hand.

At the Toronto South regional office of the Board, it's taking more than a month to get a hearing for rent arrears, and about a month at the North York and Scarborough locations. If it were just a month delay to a hearing, that wouldn't be so bad, but there are delays right through the system.

If a tenant asks for an adjournment for a lawyer, or to bring his or her own claim, it will invariably be granted. That could result in another month in order to have the matter heard. At the hearing, assuming an eviction is granted (which is quite an assumption), the Board won't let you file with the Sheriff for a minimum of 11 days. But now you're into the Sheriff's queue. I've never understood why the Act doesn't permit enforcement of the Board order by way of a commercial bailiff. The Sheriff delay hasn't been bad lately in Toronto, about 3 weeks, but after Christmas it will be back up to 4 or 5 weeks. The Peel Region Sheriff's office is about the worst in the GTA, often 6 weeks.

But let's say the tenant files a review request just days before the Sheriff is about to enforce. Then the eviction is stayed pending the outcome of the review. If timed properly, your Sheriff appointment is missed, and if the review is denied, which it usually is, you have to wait for the order lifting the stay, file it with the Sheriff, and then go back to the end of their line. I've always thought that was terrible unfair. Missed Sheriff dates should go to the front of the line once the stay is lifted.

There is a move afoot to reduce the number of adjudicators at the Board, some say by as many as 15 Members. I don't know if that number is accurate, and I suspect if it's true it will accomplished primarily through attrition, but to reduce the numbers in the GTA any further makes the system irrelevant and near meaningless.

This Whole System is Out of Whack

Theoretically Ontario landlords and tenants are provided with a system that provides them both with an opportunity to effectively, quickly, cheaply and fairly have disputes adjudicated. Nothing could be farther from the truth. Landlords are terribly disadvantaged at the Board by a number of factors:

• The Residential Tenancies Act is tenant-centred legislation
• Decisions from the appeal courts have generally favoured tenants for a number of reasons
• Legal Aid Ontario over-funds tenant-side programs, and provides little funding for landlords

I am going to deal with these issues in a number of posts over the next month, but for this post, I will deal with the imbalance between parties in their ability to get free legal help.

Legal Aid Ontario takes government money and doles it out, supposedly in the public interest. But Legal Aid Ontario considers that there is a huge power imbalance between landlords and tenants, and provides funding almost exclusively for tenants. There are 79 community legal clinics across the province, plus a number of specialty clinics, including ACTO, the Advocacy Centre For Tenants Ontario. In addition to its activities in the area of law reform, ACTO runs a program that provides tenant duty counsel for all hearings in all GTA area locations of the Landlord and Tenant Board. The community legal clinics handle duty-counsel services for the rest of the province. When a tenant walks into a Board office for a hearing, they are greeted by staff lawyers or community legal workers whose job it is to delay evictions, defeat landlord's applications, and have tenants win significant monetary judgments from landlords.

Landlords have no assistance at the Board through ACTO, nor do they have the ability to get assistance from the community legal clinics. There is one landlord-side legal clinic given minimal funding by Legal Aid Ontario. It is called the Landlord's Self-Help Centre, but it provides summary advice by phone or for walk-ins. There is no funding for legal representation at the Board or on appeal at the Courts for landlords. Landlord's Self-Help Centre has no staff lawyer, has no funding for test-case litigation, and while they do good work, small landlords are almost always the losers when they appear at the Board without representation when the tenant has a well-trained lawyer with the resources of Legal Aid Ontario behind them.

Landlords, particularly small-scale landlords should be up in arms at the heavy-handed measures taken by the legal clinics considering that there is an enormous imbalance in power and money. The solution is certainly political. Landlords should be complaining to Legal Aid Ontario, the Attorney General and the Ontario Ombudsman.

Paralegal Regulation at the Board

Since November 1st, 2007 the Landlord and Tenant Board (LTB) has taken to asking representatives if they are licensed or exempt from licensing before anyone can act for a party. Paralegals in the current LSUC licensing program, lawyers and employees of companies who they are representing can all appear at the Board. So can friends and family, if they are not being paid. But there a lot of people who call themselves paralegals who did not take part in the licensing process and who should not be acting at the Board. I've already found one, and I turned him into the law society.

My question is, should the Board be the watchdog? Where is their jurisdiction to do so? Personally, I think they have it backwards. It's ironic in a way that when anyone could appear at the Board prior to October 31st, 2007, the Board didn't concern itself with the quality of representation. But now that there is a licensing body, the Law Society, the Board is acting as cops for the LSUC. A person engaging in unauthorized practice can be slammed with a hefty fine under the Law Society Act. Persons who are licensed and who mess up or do poor work, will find themselves in front of an LSUC discipline panel. So what's the big deal? Now that the LSUC exercises control over all those who appear at Small Claims, or administrative tribunals, or at provincial court, leave it up to the free market complaint-driven system to weed out the bad apples.

Let's Start Blogging

Welcome to the Blog section of Landlord's Solutions web. There really are no Blog Spots in Toronto that I know of where landlords and landlord's legal agents can share notes, discuss decisions and comment on their experience at the Ontario Landlord and Tenant Board. This site will allow people, within reason and within the bounds of good taste, to provide constructive information for others that might make their Board experience more fruitful.

My own experience at the Board started in 2001 when I was a Board (then Tribunal) Member, but for the last 3 years I've been presenting in front of the Board as an agent, acting almost exclusively for landlords. Many ask me if I find it strange being on the other side of the bench, or which I prefer. I prefer this new life, as I'm an entrepreneurial sort, not well suited for government work. And I enjoy most days, bothered generally by questionable adjudication at times by Members who tend to have a tenant-centred slant and too broadly provide relief from eviction.

Out of the 45 or so Members, I'd say that there are only about 9 that I've run into who on a regular basis depart from the norm and arguably act outside their jurisdiction. I't s a problem, and I'd like to encourage others to speak out when they become the victim. I look forward to sharing my thoughts with you, and hearing of yours.