Tuesday, September 22, 2009

Mediation at the LTB generally a waste of time

I've never been a big fan of mediation at the LTB. It's generally a waste of time in my opinion. But I had two cases in one week that brought it home.

The first was a file up in Newmarket where I had entered into a consent order in June for the tenant to pay her rent on time (it was a persistent late application) or the landlord could file ex parte (an L4 application without a hearing) on a breach. The tenant breached in August with an NSF. We didn't get paid until the 26th of August. We filed the L4, got the order, the tenant filed a set-aside motion and the motion was heard by a Toronto North region Member last week. The tenant acknowledged that the cheque went NSF, I had lots of case law with me that says the Board should respect mediated agreements, otherwise nobody will enter into them. But what does the Member do? She said "I'll give you one more chance". She set aside the order. Now the next time there is a breach, the same thing will happen, the set aside motion will likely be heard by a different Member (law of averages) and that Member will likely say "OK, I'll give you one more chance". It's absurd. The Board may as well hang out a sign that says "Landlords need not apply on breaches of agreements". What about the landlord's legal fees? What about the NSF fees, they are even un-collectable on a hearing of a set aside motion .

Then a crazy one this morning at the Central Region. Never seen anything like it. We had a consent with the tenant back on August 21st. The tenant was to move out at the end of October, non-remedially and we forgave some rent due to their trumped up maintenance claims. The tenant was to pay some of the arrears to the landlord, and if the tenant didn't make those payments on time, my client had a right to file an L4 re-application earlier than October 31st (only upon a breach) for an earlier eviction. The first payment was due on the 24th of August, and we knew we wouldn't see it, but that's OK, we had a consent that said we could file ex parte

Well, the tenant didn't pay, but we got no order from the Board, so we couldn't file the L4. I contacted the Board, in writing and over the phone. I asked them "Where is the order, we want to file?" The Board said they would get back to me with an answer. Lo and behold, the Member issued a notice of hearing insisting that we return on September 22nd, today. The Board (and the Member) wouldn't advise why the would not order this consent that was agreed to by the parties, the tenant having been represented by Tenant Duty Counsel at the first hearing. They wouldn't tell us what the issues would be on the return. They refused our request for a quick telephone hearing in case it was a minor procedural issue. So we waited a month, the tenant missed the payment on the 24th and the next one on September 4th. The tenants were laughing I'm sure, both at us and the Board. They ignored their agreement for payment, knowing that we couldn't file early on the Breach because the Member wouldn't issue the consent order, nor would she bring it back quickly to resolve the issues.

Oh by the way, between then and today, we get a maintenance request saying the washing machine doesn't work. The landlord sends in a repairman who says that fresh concrete has been poured down the drain of the laundry machine, and he will have to dig up the floor. Wonder how that happened.

So this morning we attend, no tenants of course, they've already reaped the benefit of an extra free month. The adjudicator explains that she brought us back because on reflection, she didn't think she had the jurisdiction to order a non-remedial eviction, but also order conditions and the right for the landlord to file ex parte on a breach. She said she didn't think she could have two termination dates in one order.

She is clearly wrong in law, and I've done this same order a dozen times. And it's not two termination dates in one order, it's one non-remedial date, but a right to file an L4 ex parte

The Board says publicly it's trying hard to resolve the more complex matters through mediation. But regulars like myself just stop mediating and insist on everything going to hearing when
if there was a breach. re-application for an eviction date prior to that if the tenants don't live up to the agreement. But the issue is not that I disagree with her interpretation of the law. The issue is that the 10 minute hearing we had this morning, in the absence of the tenant, could have been done as a telephone hearing, permitted by the Rules of Practice, the very next day after the August 21st hearing. It's now cost my client another month. Just another $1,000 in rent caused by the delay, no big deal.:

Members routinely question a tenant's commitment to a consent order, and instead suggest they go talk to Duty Counsel

The Board routinely sends ex parte applications to a hearing rather than issuing an order as the Act permits

The Board routinely sets aside eviction orders that came about as a result of an admitted breach of a mediated agreements and consent order, for no reason

The Board refuses to take consents that are within its jurisdiction

Mediation at the LTB. No thanks, and I would stay away too if I were you.


qmanrei said...

Exactly - If the mediation is not binding what use is it?

There needs to be some higher powers looking into this type of behavior by the LTB.

Do you think these examples are rare causes or typical?

Anonymous said...

I agree completely, I had a similar situation this summer.

Anonymous said...

Although how about in cases where the mediated agreement under a L1 that stipulates payments by tenant and repairs by landlord whereby tenant complies but landlord doesn't? Those happen often enough and leaves the compliant tenant to find a way to enforce specific performance with little remedial action such as eviction or order for arrears that a landlord can at least pursue. Such cases force tenant advocates to counsel caution against mediating s.82 issues and simply present them in hearing for the Board to adjudicate.

BasicRiches said...

Mediated today. Complete breakdown. The tenant wanted to remain in the property 5 months rent free and his lawyer said if I didnt accept it, they would hold up the process that long anyway. The member only allowed 1 week delay. Crossing fingers as Power of Sale is looming.