Saturday, October 27, 2018

Terrible Delays at LTB Pervert & Distort Behaviour, Impede Justice

It used to be that when there was a problematic tenancy, where the parties couldn't stand each other due to the ongoing dysfunction and the relationship was completely irreparable, there were solutions that involved ending the tenancy by making a deal.

The risk in the system was shared by both parties, and that provided an incentive to deal.  The tenant feared a quick eviction with no money in their pockets, and a damaged credit score.  Better to leave with first and last in your pocket for the next tenancy.  The landlord was concerned about mounting debt or additional damage, plus stress and time away from work.  Everyone had an interest in getting out of each other's lives for fear of the consequences.  And they were willing to compromise a bit to make the problem disappear.

But that was then, and this is now.  In most types of civil litigation, the damages are fixed and final when the parties finally get to court.  With landlord and tenant litigation, the damages continue to grow as the matter goes through the court system.  Physical damage becomes worse if the tenant is prone to such behaviour, and rent arrears increase monthly as tenants stop paying rent.

In my days as an LTB adjudicator, matters would often get to the Board 3 weeks after the landlord filed their rent application.  Today it's about 7 weeks minimum, and up to 5 months in some areas.  But that's just for the first appearance.  The LTB stats show "time to hearing", but that's just the first appearance.  If the parties have to go home without their matter being heard because of over-booking, it's another several months before the return date.

And over-booking is rampant.  The opening canned speech from adjudicators routinely warn the public that they likely won't get heard, that mediation may be the only way to get the matter completed, and that they may be there the entire day until 4:30 to find out whether their matter will be completed.

This is unacceptable.  There are lots of reasons this is happening.  A tenant-centred Board that often fails to use common sense, the increased complexity of this area of the law caused by appellate decisions, the lack of cost consequences for the loser removing risks to frivolous litigation, the almost automatic granting of tenant review requests, but most recently, by a severe lack of Members (adjudicators) at the Board.

Appointments to adjudicative positions in Ontario are done through time-limited appointments.  Through sickness, resignations, expiry of appointment terms, and in Southwestern Ontario the death of a respected Member, the LTB has never been so short-staffed from the adjudicative perspective.  Even if matters get heard, orders aren't getting out for weeks or sometimes months.  In Northern Ontario, in-person hearings are no more, as there are no northern Ontario members.  In fact on the LTB main page, the agency warns the public that they can no longer effectively do their job.  Their main page banner reads:

The Landlord and Tenant Board (LTB) is experiencing a shortage of adjudicators (members) which is affecting the LTB’s ability to meet its service standards. As a result, you may experience a longer than usual number of days before a hearing can take place. All parties appearing before the LTB are encouraged to take a close look at the Notice of Hearing as your hearing details (location of your hearing or how your hearing will be conducted) may differ from previous hearings. The LTB continues to be committed to providing fair, effective and timely dispute resolution.

Unprecedented.  Shameful.  Shocking.  For rent arrears matters, tenants are laughing at offers of three months rent forgiveness in exchange for an end to the tenancy.  Why make a deal with the landlord when the LTB process takes much longer.  Add the Sheriff time to evict, and another month is tacked on.  Add a review, and it's another 6 weeks delay.  Add an appeal to the Divisional Court, and it could be 6 months or a year for delay.

Behaviour can be predicted, shaped and molded.  Economists can predict and shape consumer behaviour by adjusting variables.  Anyone seriously looking at the LTB's system today will agree that the variables in place guarantee frivolous matters being filed, frivolous delay requests, and irrational decision-making behaviour by the parties to the litigation.

There is no quick explanation as to where the fault lies as there are numerous factors, some of which I've mentioned above.  But with respect to the shortage of adjudicators, it's Premier Ford and the Ministers of Housing and the Attorney General.  These are the key players in making public appointments.  Former Liberal government appointments are expiring, and for most landlords that's a good thing, as the ideology of the agency has shifted way too far left over 15 years of Liberal rule.  But the expired Members have to be replaced by new Members to take up the slack.  That's not rocket science.  Appointments alone won't solve the problem, at least not immediately, because the new Members need to be trained.  Training can take at a minimum 2 months just to get the rookie Member up to speed on simple matters  My experience was that it took a year to get really good at the job.

So we are in for long-term pain.  Looking at the Ontario Public Appointments Secretariat website today, it appears that by the end of 2018, there will be 16 existing Members, full and part-time, whose appointments will end.  There will be no replacements appointed and properly trained to replace them by the end of the year.

If you are a landlord, call, write or visit your MPP.  A complaint to the Ontario Ombudsman might be effective.  The current situation is unacceptable.  A delay is as good as a win for many tenants in rent arrears matters.

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