Wednesday, November 16, 2011

So Much Delay at LTB....So Many Frivolous Tenant Applications

The Landlord and Tenant Board is experiencing unprecedented backlogs.  They are currently experimenting with a system to deal both with the time to get rent matters to hearing, and the difficulty in hearing the more complex conduct applications and tenant claims in a timely fashion.  The motivation for the program is sincere, but they are under-resourced.

Many of the adjudicative appointments are expiring, one Scarborough Member had his appointment expire this week along with two from the Hamilton region and one from Lively.  And so far, new Members are not being added.  Between November 15th and December 31st, there are 10 Members up for renewal or replacement, with no resolution in sight.  For you insiders, here's the current list:

http://www.pas.gov.on.ca/scripts/en/BoardDetails.asp?boardID=121296

The Board's experiment in scheduling started in earnest this week.  I've heard nothing but bad comments about long lineups, delays and nightmarish crowds on the Board's new "Arrears Only" days.

What's also pushed the numbers up is the large volume of complex applications, both conduct claims by landlords and applications by tenants seeking compensation and other remedies.

The problem is in part legislative, as the law has changed radically since 1998 when the Tenant Protection Act came into force.  Liberal initiatives such as the dreaded and draconian section 82, along with the elimination of default judgments have been two big contributors.  But so are decisions from the Divisional Court and Court of Appeal that have added nuances to the law making it more complex to interpret, and difficult to comply with.  Add to this the Liberal's 2009 Ontario Human Rights Code Policy Guideline for Rental Housing and the Human Rights Code.  This new set of rules has made eviction based on conduct twice as complicated, half as likely to succeed and hearings far more lengthy than they were prior to those changes.  Here's the 110 page tome, a remarkable piece of social engineering that should have landlords running to sell their properties:

http://www.ohrc.on.ca/en/issues/housing/en/resources/Policies/housing

Another factor causing high volume and hence delays is costs...or rather lack of proper cost Rules and the application of the Rules.  The Ontario Small Claims Court now has sensible rules about costs, and it makes a person think twice about filing a frivolous claim.  The loser pays.  But at the LTB, the Rules ensure that costs are rarely assessed, and the practice on costs means that they are almost never assessed against tenants even when costs seem entirely appropriate.

My own belief is that one of the single biggest factors creating delay is the number of frivolous and vexatious tenant applications filed by tenants looking for a windfall.  For all those who tell you "it's not about the money", I can tell you that it's ALWAYS about the money.  So why are there so many applications filed?  Well why not?

What's the difference between a tenant filing an application at the LTB and that same tenant betting on a horse race?  To win at the horses, they would have to risk some money.  At the LTB, tenants can make claims about enjoyment, harassment, illegal entry etc. for no fee and ask for up to $25,000.  So what's the downside?  Why not go for it!  Well they do, and in large numbers.  Besides, filing a meritless tenant claim can prevent eviction, or delay eviction the many months it takes to dispose of the tenant application. 

Just yesterday I was at the LTB for the 3rd time with a tenant who was seeking $55,000 in compensation over three different applications against my client, a social housing landlord.  The claims are completely without merit, but it will likely take about 7 full hearing blocks to hear all three applications.  What did it cost him to file.  Nothing!

Today I received a hearing order from the LTB on a tenant application filed against another client claiming maintenance and harassment issues.  There were 5 different hearing dates in all, 4 of them full "special" blocks running from October 2010 until the conclusion in October 2011.  Today's order dismissed all the tenant's claims in their entirety.  I was thrilled.

Now this was a special case.  This tenant was a serial litigant.  In the Ontario Courts one can be found by a judge to be a vexatious litigant.  Certain sanctions flow from that finding.  While that remedy is not available to a Member of the Landlord and Tenant Board, certainly assessing costs can do the trick, both party-party costs, and costs levied by the Board against the offending party.

If there was ever a case for costs, this was it.  The tenant was savvy.  He had been to the Board and its predecessor organizations many times with this same landlord.  He was making groundless claims as far back as the days of the Residential Rent Review Board under the RRRA.  In two different hearings over the decades, Members found he had acted badly.  In 2003 a Member (by the name of Harry Fine) found that Mr. C. had given false and misleading evidence about a rent receipt.  In 1995 another Member found he was acting unreasonably, still another that his behaviour was frivolous and vexatious.  At a recent hearing for an above guideline rent application, Mr. C. was the only tenant who sought to overturn the decision, and was the only tenant not to enter into a consent with the landlord.  Of course his review was dismissed.

His first words of greeting to the new superintendent when she started in the building a few years ago were "I'm Bud C.  I sue this landlord". 

But back to 2010.  In this present-day application, all his claims were about things of which the landlord had no knowledge.  His allegations went back 4 years filled with lies about the landlord knowing of these issues and doing nothing.  In reality, once the tenant filed his T2 and T6 applications, any legitimate issues were corrected immediately.  But it's all about money, so the tenant went to the Board seeking thousands in compensation.  On the first date, October 18th, 2010, the tenant did not come prepared, and asked for an adjournment on his own application.  The adjournment was granted.

At later hearings, he admitted that he never put any maintenance complaints in writing, says they were all verbal requests, and claimed that a previous adjudicator at the Board had told him he didn't have to put work order requests in writing.  So on the final hearing day in October of 2011, I asked the Member to dismiss the application and consider costs in light of the Board's own Rules and Guidelines on costs.  I reviewed the Rules and Guidelines with her, and reviewed the tenant's behaviour that I thought should attract cost consequences.  I suggested she look at LTB costs as well as costs in favour of my client.

So the order arrived today in the mail, and yes, I was pleased to see that the Member got it right and dismissed his application in its entirety.  But on the issue of costs, she says:

"I do not think that Board costs are appropriate because there is insufficient evidence before me that the tenant's conduct was improper or unreasonable in these proceedings".

I'm not sure what would have convinced this Member to award costs.  This was a case that screamed out for them.  It cost my client about $3,000 in legal fees, and took up five mornings of staff time plus preparation.  I would have been just as happy if the Member had awarded costs to the Board and not to my client.  I just wanted Mr. C. to know that he can't waste the Board's time and my client's time with impunity, and do it again and again.

So while Mr. C. got nothing this time, there is probably already another T6/T2 combination filed as he spins the wheel or rolls the dice without having to pay for the privilege.

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