Friday, January 7, 2011

New LTB Guideline on Notices of Entry Long Overdue - Lack of Email Service Striking

The LTB has a process where Rules of Practice and Interpretation Guidelines are created and updated to reflect the Rules, practices and general approaches to issues at the Board.  An internal committee meets regularly and updates existing Rules and/or Guidelines and creates new ones as the need arises.  Industry stakeholders are consulted after a draft is prepared, and input is provided.  Interpretation Guidelines are important for litigants as it gives them a heads up as to the current approach or thinking with respect to just about every different type of application that a landlord or tenant may file, and about other issues such as Payment into the Board, Reviews, Amending Orders and Administrative Fines. 

I've been arguing for years that the LTB should produce an Interpretation Guideline regarding entry into the rental unit.  For small landlords, it's a huge issue.  Tenants often have ulterior motives in having landlords not be able to enter properly, and yet landlords have been punished by the Courts and the LTB for harmless and apparently legal entry into the unit.  The single biggest issues have been what constitutes a "time of entry" in accordance with the Residential Tenancies Act, and what method of service of the notice of entry should be acceptable.

Entry is controversial.  It's a tenant's home.  Yet it's the landlord's property.  The landlord has an obligation to repair, maintain, keep fit for habitation and comply with standards.  The landlord has to make sure that the Fire Code is complied with.  The landlord has to make sure that no grow-ops are being run on the property.  And when the landlord fails to do any of these things, they are roundly criticized.

On January 4th 2011, the Board published their newest updates.  They can be found here for Rules:

Landlord and Tenant Board Rules of Practice

And here for Interpretation Guidelines:

Landlord and Tenant Board Interpretation Guidelines

Take note of Guideline #19. It's new, and it's long overdue.  Finally landlords big and small have a published document which should guide them, and the Board, in making decisions about what types of entry are legal.  The big benefit to landlords will be clarification about the issue of time.  The Guideline reads in part:

Where a specific time of entry is known, it should be stated in the notice.  Where it is not possible to state a specific time of entry, the notice may provide a reasonable window of time for entry.

What is a reasonable window of time will depend upon the facts and circumstances in each case.  Where the landlord exercises control over the work being done and who is doing the work, the notice should be reasonably specific with respect to the time for entry.  Where the landlord does not exercise control over the work being done or the person who is doing the work, the notice should set out a reasonable window of time for entry.  

For example, where the work is being done by a cable or telephone company and the company specifies a reasonable window of time when it will be at the rental unit, a landlord may reasonably specify that same window.  Where the same or similar work is being done in a number of units on the same day, a reasonable window of time may be specified. In determining whether the specified window of time is reasonable, consideration should be given to the type and complexity of repair, replacement or work being undertaken, the location of the work and the extent to which the entry affects the tenant’s ability to use the rental unit.

The sentence I've underlined in the second paragraph will help to shield landlord from tenants who file T2 applications looking for an abatement of rent because the landlord's trades person, for no fault of the landlord, didn't arrive at exactly the time the landlord had advised.  The Guideline makes a distinction between entry by persons over which the landlord has control, and those over which the landlord does not have control. 

Missing from this new Guideline was some progressive thought regarding service of documents for entry.  I would I would beg on one knee that the Board consider email notice for entry.  Currently they do not, even when a landlord and a tenant have a history of using email exclusively.  The LTB's position is that the Rules respecting service of documents of litigation, termination notices, applications, motions, notices of hearing, should also apply to service of notices of entry.  In fact, it just doesn't work.

Out of town landlords can't drive 100 or 1,000 miles to put a notice of entry into a mailbox, or under the door, or serve it to the tenant or an adult in the unit personally.  They can mail it, but then a 24 hour (minimum) notice turns into a 144 hour notice, since mail is deemed to add 5 days.  Only a small percentage of tenants have fax, which is permitted, and when they do it's often at work which might end up giving them no effective notice of the landlord's intention to enter. 

There are three good reasons why the Board should recognize a distinction between serving LTB legal documents, and serving notice of entry.

  1. The law should change as technology changes.  Faxed service is permitted.  How many tenants have fax machines, versus how many have email?  I read about a case recently where a judge allowed a plaintiff to use Facebook as a method of substituted service when no other method was practical.

  2. Rules about service of legal documents need more specificity and precision than notices of entry since the outcome of a legal dispute may rest on if and how service was made. 

  3. Email is in many cases functionally equivalent to fax.  I use a fax program that runs on my computer 24/7.  I don't receive paper faxes.  I receive them in my Inbox, just like emails.  I don't print them unless I need to print them, just like emails.  I read them on my computer screen, just like emails.  They are transmitted electronically, just like emails.
It is rare, perhaps even unprecedented that I make a plea to the Chair of the Board over my blog, but if Dr. Lilian Ma is listening, I urge her to consider these arguments and bring service of notices of entry into the 21st century. 


Anonymous said...

It may not be perfect but at least it's progress. Helpful as always.

Rachelle said...

Thanks for the update... I'll spread the word too

Happy New Year!

Anonymous said...

As always Harry, you are one step ahead of the game. Unfortunately you are dealing with a government bureaucracy that doesn't care. For example on the L1 application and instructions it states that you have a choice of picking up your notice of hearing at a Service Ontario office; this is misleading as Service Ontario offices no longer accept notice of hearings, they can only be mailed or faxed to you from the LTB.

Rob said...

Yet they have the nerve to include an email address field in the applications. I purposely never include my email address as it serves no purpose other than give the LTB the opportunity to record it.

Rob said...

Yet they have the nerve to include an email address field in the applications. I purposely never include my email address as it serves no purpose other than give the LTB the opportunity to record it.