Thursday, April 2, 2015

LOTS OF ADMINISTRATIVE CHANGES UNDERWAY AT THE LANDLORD AND TENANT BOARD

Lots of news at the LTB these last few weeks.  Add in the new case management hearings, changes to hearing scheduling and the addition of Cooperatives under the LTB's umbrella, the agency has had a busy year.  Here's a summary of a few of the newest changes.

E-FILING

E-filing is being tested on a limited basis for L1, L2, T2 and T6 applications. It's about time, they were talking about it when I was a Member of the LTB in 2004. I will believe it when I see it.  The Board plans to make e-filing available to all users across the province by this summer.  Together, L1, L2, T2 and T6 account for 80% of all applications received at the LTB.

UPDATED FORMS

As you know, the new forms are now available, but the old ones can be used until May 31st, 2015 without issue. After that, if an old form is used, it may delay the processing of the application.  Good and bad on the new forms. I like the Human Rights and French Language services expanded area. Also great to have a scheduling sheet where you can indicate unavailable dates on the last page of every application.

People shouldn't fret about star
ting to use them right on April 1st. The forms do not reflect any statutory changes, there has been no Rule or notice that they must be used as of that date. So far it's simply an announcement on the website saying they are available.  They are suggesting that by May 31st, you should be using the new forms otherwise delays may occur.

The best thing about the new forms is that finally the N5, N6 and N7 notices of termination warn the landlord that they had better include dates, times and specifics in order to comply with the 2002 decision Ball v. Metro Capital from the Ontario Divisional Court. I hope it results in fewer L2 applications being thrown out. The way the forms are designed forces the person to think point by point and include dates.


But the biggest single oversight was the N8 notice. There are only 3 slots for dates, times and specifics. To succeed with an L2 eviction application based on an N8 notice for persistent late payment, the Board member usually wants to look at the most recent 12 months of payment. Having only three slots is crazy, it will mislead the small landlord. I just sent this to a contact of mine at the LTB:


"Not trying to be an alarmist, but I just started looking at the new notices and applications that became official today, and I’m a bit shocked that the N8 notice has three lines on it, and no room for additional pleadings. I applaud the changes on the N5, N6 and N7 asking for details, dates and times, and having multiple distinct boxes, implying the need for clarity and specificity. Certainly if there are more than 3 instances of conduct, a landlord can attach an appendix to the notice.
But on the N8, most members insist on 12 months, it’s not set out in statute, but it’s generally what’s required. I’ve attached what I usually draft as an N8 under the old form. And if the notice is insufficient, it can’t be amended at a hearing.
I would strongly consider removing this notice from your website until this is re-thought. As you know, forms are not the law, but they are the best approximation of what the law says in a way non-legal people can understand. But this including only 3 lines, it’s completely misleading with respect to what may be required in order to get the order sought. Also by removing any space for commentary, you’ve removed the ability of the landlord to plead (since in LL apps, pleading is done by way of notice) their facts!"

SERVING OF APPLICATIONS AND NOTICES OF HEARING

Also the LTB will start serving the application and notice of hearing by mail starting July 1st, 2015. The LTB will serve the notice of hearing and the application to both the applicant and the respondent. Currently, the applicant serves these documents to the respondent. This new process will be more streamlined and will cut down on claims by respondents who say that they were never served. Some of the new forms talk about the LTB serving the application and notice of hearing. This is not the case until July 1st. 

EMAIL INQUIRIES HAVE ARRIVED

And believe it or not, email for case inquiries will soon be available at the Southwestern and Toronto South offices. Starting April 7, the Southwestern and Toronto South offices will be accepting case inquiries by email as part of a pilot project. LTB users in these areas will be given the email address along with their Notice of Hearing. They are asked to put their file number in the subject line of the email.


SO WHEN WILL EMAILING OF NOTICE OF ENTRY BE ALLOWED?

So...WHEN WILL EMAIL BE AN ACCEPTABLE METHOD OF SERVICE FOR NOTICES OF ENTRY BY A LANDLORD?  Fax is an acceptable method under the Board's Rules of practice, but not email. How many of your tenants have fax numbers? And besides, today email and fax are functionally equivalent. You receive faxes on your computer, you send them on your computer.  There really is no distinction.  This should not be so difficult, and can be changed by a simple amendment to Rule 5 of the LTB's Rules of Practice.  No legislative or regulatory changes are needed.  Perhaps the Rule could specify that emailed service is only permitted if the landlord and tenant have provided each other with their respective email address in the lease, or in writing, and agreed to use email as a method of communication.  Perhaps the Board could draft a form for them to use acknowledging their agreement.

Take the following example of why a change is needed.  Suppose a landlord lives in Burlington and owns a rental property in Pickering.  It's Thursday, and he wants to go and do a fire safety inspection, or change furnace filters over the weekend.  Since the tenant has no fax machine, and since email is not an acceptable method of service, he has to drive to Pickering on the Friday to drop the notice of entry off to the tenant, in the mailbox, in his hand etc.  Then he has to drive home, and on Saturday (making sure it's at least 24 hours later) he has to drive back to Pickering to change the furnace filter.  

Now it's true, he could simply take his chances, knock on the door and ask the tenant if it's OK for him to change the filter.  But if the tenant says "no", then the landlord can't enter. 

For all the details of changes taking place at the Board, check out their website:

http://www.ltb.gov.on.ca/en/About_Us/STEL02_111230.html

5 comments:

Anonymous said...

According to the LTB website, the changes you were looking for to the N8 have been made. Well done

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Anonymous said...

I have owned properties for the last 10 years and I am quite familiar in filling out the LTB forms. Similarly, I have reviewed the new forms to get acquainted with them. My questions is around how a Property Manager is supposed to properly fill out the forms. For example, N1, rent increase. The "representative" is supposed to be someone with a law license. So, does the property manager fill out the form and fill the companies name under the landlord name/address and then sign as the landlord? Or do they just use the representative section and fill in the owner as the landlord. There are no guidelines around this. Your expertise would be helpful!! Thank you!

Steve Flynn said...

Great article Harry. It does leave me with a question or two though. In your example of travelling from Burlington to Pickering. Could the Landlord not just call and ask to enter? If the tenant said it was ok then they could travel to Pickering to perform the maintenance. The only problem here is nothing was actually in any time of writing... so that brings me to my second question.

How about a text message (as tenants love this mode of communication)? A landlord could send notice by text, and as long as they received a reply back then this would be ok? The same could be said for email as long as they replied back?

I say as long as you received a reply back because yes, these currently aren't approved forms of notice. However, the entry would only take place if a response was returned.

Thanks Harry and keep the articles coming.

Steve Flynn

Benjamin said...

Now, if only there was a public service that could deliver pieces of paper from Burlington to Pickering, reliably and at minimal expense... maybe after putting the pieces of paper inside envelopes and placing a special seal on the front...

...that would be crazy, right?