Thursday, October 20, 2011

No Good Deed Goes Unpunished at the Ontario Landlord and Tenant Board

Remarkable case today at the Board.  Shows how perverse the whole system is.  Shows how poorly the LTB operates in its tenant-centred focus.

I attended at the Board with a landlord in March of 2011 with a tenant who had mental illness.  It was a social housing landlord with an eviction application.  The tenant had trashed the rental unit, causing $30,000 worth of damage.  The tenant had caused a small fire, and when the fire department arrived, she was found to have disconnected the smoke detector.  Her room was cluttered to the extent that the fire department got involved.  Remember 200 Wellesley?

So we took the tenant to the Landlord and Tenant Board after giving her the appropriate notices for her illegal act and impairment of safety.  But this is a good, compassionate social housing landlord, and instead of going into the hearing room seeking eviction, we went to mediation.  In mediation, the landlord agreed to give her a new, refurbished unit, waive the damage claim and assist her with reducing her possessions and moving them across the hall.  We signed the mediated agreement, but with a carefully worded provision included whereby both parties acknowledged that the tenancy was not ending with a new one being created, but instead all rights and obligations were being transferred with the tenant to the new unit, with all security of tenure, history and rental provisions intact.  We did this of course in case we had to file an L4 re-application if the tenant breached the conditions.  The conditions of the agreement were basically that the tenant would not bring the new unit out of conformance with the Fire Code, not tamper with smoke detectors, and allow frequent inspections.  I might add that this agreement was made using LTB mediation.  Section 194(2) of the Residential Tenancies Act says that:

194.  (1)  The Board may attempt to mediate a settlement of any matter that is the subject of an application or agreed upon by the parties if the parties consent to the mediation. 2006, c. 17, s. 194 (1).
Settlement may override Act

(2)  Despite subsection 3 (1) and subject to subsection (3), a settlement mediated under this section may contain provisions that contravene any provision under this Act. 2006, c. 17, s. 194 (2).

So in September of 2011, the tenant breaches the agreement by disconnecting the smoke detector.  The landlord instructs me to file an L4 re-application under s.78 of the Residential Tenancies Act, the section of the Act that allows such things on a breach of an agreement or consent order.  This is normally an ex parte application, that is, without a hearing and without notice to the tenant.  But as often happens with conduct breaches, an adjudicator made the administrative decision to send it to a hearing.  Just to be safe.  Or was that the reason?

Today was the hearing.  I could have fallen off my chair when the Member suggested that the reason she sent the matter to a hearing was that she had no jurisdiction to consider the L4 application since it was not the same tenancy, but a new tenancy.  I read the iron-clad wording of the mediated agreement into the record, pointed out s.194 of the statute, even led the tenant through examination where she and her counsel admitted that at the time of signing the agreement in March, she considered the tenancy to be remaining intact.  I suggested to the Member that there was not much point in s.194 of the statute allowing contracting out of the statutory provisions, if the Board later turns around and says "You Must Comply with the Rules".  Besides, there is no reference in the Residential Tenancies Act to a tenancy being tied to a unit, nor one that says a tenancy must re-boot if moved in these circumstances, nor is there any case law that's on point.  And moreover, it was the right thing to do.

What was the alternative back in March with the original unit trashed and uninhabitable?  Should the landlord have locked the door and declared the tenancy frustrated?  Should they have gone to the LTB on an expedited basis and attempted to evict the tenant in front of an adjudicator.  Well in this case, the landlord understood its obligation under the Human Rights Code, and took these extraordinary accommodation measures to try and keep this tenant housed.

So what's the fallout.  If the final decision, (which has not yet been made) is that the LTB has no jurisdiction, then my client has to start fresh.  We can't rely on the behaviour in the original unit, and would have to serve new notices of termination based on new conduct in the replacement unit.  I can assure you that's what the client will do if the decision is that the Board won't respect the parties wishes in mediation that the tenancy be transferred intact to another unit.  And you can bet that when we come back to the Board and the Member asks if the parties are interested in mediation, that we will refuse the suggestion.


Kathleen Lovett-Parker said...

Harry, that is unbelievable. What is the point of making rules, if the LTB either ignores them or just simply doesn't follow them. Thank you for posting, I will keep following. Great work Harry!

Anonymous said...

What was the final outcome ?

Anonymous said...

I was reading this article and thought of my situation dealing with someone who lives beside me, they completely trashed their unit in TCHC, and have not been evicted as of yet, could be because they are mentally ill, and this is delaying things? I am praying this person will not be transferred into another unit here, as the same thing will happen again as they have complete disregard for housing, staff, and other tenants.

need opinions here.thank you