LTB Makes Up The Law As They Go Along

Couldn't resist posting this one after yesterday's action by the Landlord and Tenant Board making up Rules of service and imposing them on taxpayers without authority... without a live application to provide them with jurisdictional cover.

Friday afternoon I was sitting in a hearing room waiting my turn and a Member decided to create new law as he/she went along. A landlord had an old 2008 judgment from the Board for money.   The former tenant had filed a review 3 years later after the fact, once she found out that there was a garnishment attached to her wages.

The former landlord and tenant spoke (I assume) and they agree it had been a mistake and at the hearing, they consent to the granting of the review and then the withdrawing of the original application that gave rise to the enforcement proceedings at Small Claims Court.  So the parties read the consent to the Member who instead of accepting and endorsing the consent, added to it.   The Member decided that he/she had the jurisdiction to order that "within 11 days, the landlord shall repay the former tenant all the funds that had been received through the Sheriff's office by way of the Small Claims garnishment proceeding".

The agent for the landlord was clearly shocked and balked. While the agent didn't use the "J" word specifically, I would ask what jurisdiction the LTB has to order a landlord to refund monies obtained through a legitimate (at the time of enforcement) Small Claims Court proceeding.  The former tenant had options without this quasi-judicial activism.  The former tenant could have gone to Small Claims with a motion for the repayment of the money based on the subsequent withdrawal of the landlord's underlying claim.

This Member is bright and experienced. He/she knew better, but did it anyway. At any Court or administrative tribunal, jurisdiction is everything, the sine qua non of any proceeding. Without jurisdiction, the Board is powerless to consider a claim or affect a remedy.  But to that Member on that day, it didn't seem to matter.

In my opinion, too many Members are acting as advocates at the LTB.  This is unacceptable even when their efforts are designed to put things right as I suspect was the Member's motivation in this case.  This rant is not about landlords or tenants.  It's about fairness and respect for the law and the institutions that uphold it.  There needs to be consistency and predictability in Courts and Tribunals.  Divisional Court is getting fed up with LTB appeals which are also expensive for the parties.