LTB Refresher 2024 - tips from practitioners
I joined this year's Landlord and Tenant Board (LTB) Refresher for Lawyers and Paralegals moderated by the knowledgeable and affable Kevin Lundy. Here is an overview of the presentations, which provided useful advice.
Disclosure requirements
For paralegals, be sure to add yourself on the portal to receive the Notice of Hearing. Serve and file evidence to be relied upon 7 days prior to the hearing. For evidence in response, 5 days prior. Evidence can be emailed if you haven't been added to the file. It's safest to file a Certificate of Service for the evidence as well. Note that evidence can be emailed if the other party is represented (RTA s 19 sub 1).
Interim Orders
Has a tenant been locked out? The LTB must interfere prior to the hearing. Apply for an Interim Order. Has a Sheriff's Order been made? You can obtain an Interim Order 'staying' it in order to review its correctness. Have you asked for a review? Obtain an Interim Order prior to the review. De novo might be necessary if e.g. the Member is no longer with the Board.
Landlord's personal use
Who can move in? - The landlord - The landlord's spouse - The landlord's child or spouse's child - The landlord's or landlord's spouse's parents - Caregivers of any of the above - All of the above applies for a purchaser of the unit A property owned by a corporation cannot serve an N12.
You should use the lease agreement to avoid a fatal error in any of the following areas: - Date rent is paid - Correct spelling of all the tenants on the lease - Complete address (use Canada Post's look-up function) - Termination date: at least 60 days, with the date being the last day of the rental period (and not when e.g. the tenant habitually pays rent) The N12 can't be issued prior to the end of the fixed period of the lease. (The landlord can apply beforehand.)
If the N12 is issued on behalf of a purchaser, the purchase agreement etc. must be included. If for some reason the sale falls through, a new N12 will be necessary. The landlord can't use the existing Notice for a new purchaser.
The tenant must receive compensation equivalent to one month's rent (due by the termination date). When the L2 is filed, include: - Copy of N12 - Certificate of Service - Affidavit or declaration of the party moving into the unit - Copy of the method of payment of compensation to the tenant. The L2 application must be filed within 30 days of the termination date. It's good practice to serve the N12 with the compensation and file the L2 shortly after.
If the tenant vacates before the hearing, you can withdraw the Application. The Affidavit must include the following: - The identity of the person taking possession - Their relationship to the landlord - Affirmation that the person intends to reside in the unit for at least 12 months - Affirmation that the declaration is made for no improper purpose. If the tenant contests, both the landlord and the party seeking to move in will have to appear.
The party intending to move in must show a genuine need. - Do they have community ties to the neighbourhood? - Are they moving from another city for a job opportunity? - Is the property larger than their current home? - Does it allow for easier living (no stairs, etc.) - Is it closer to places important to their family (school, church, work, etc.)? - If someone other than the landlord is moving in, will they be compensating the landlord? How? There should be evidence of a meeting of minds here.
If the landlord told the tenant he or she intended to sell the unit, or had asked for an unlawful rent increase, there is a good chance the L2 will be denied.
Subtenancies
The head tenant must vacate but retains the right to resume occupancy at the end of the tenancy. The landlord must consent. The subtenant assumes occupancy rights but has no direct legal relationship with the landlord. Else, the new occupant is unauthorized, and the landlord can file an A2 within 60 days of discovering the unauthorized occupant. After 60 days, the new occupant becomes a tenant with a direct legal relationship with the landlord.
Participants at the Refresher shared that law enforcement officers are sometimes willing to assist where an A2 Application has been served. I have no knowledge of such a case in Chatham-Kent or Sarnia.
Dispute Resolution Officer (DRO)
In short, for many types of applications, it's always a good idea to use the services of a DRO. Just be sure to avoid a lengthy mediation on the hearing date that does not produce a resolution, else you risk seeing the matter adjourned.
General tips from a former adjudicator
1) Have a clear theory of the case.
2) Keep in mind that not all adjudicators are familiar with all aspects of the Residential Tenancies Act.
3) Be concise. Dockets are heavy. (Unfortunately, not all clients are aware that it can take longer to write 500 words than 1,000 saying the same thing.)
4) Be prepared for active adjudicating (i.e. interruptions). Include case notes with pinpoint citations in your Book of Documents. Include the other side's materials and rebut where possible. (You'll be giving the adjudicator the impression that they have everything they need to decide the case in your submissions.)
5) Don't let them rush you. There will be points you must get across, or a review/appeal is more likely to fail.
6) Non-verbal cues are important. Many adjudicators have poor poker faces. (If they look confused, for example, take a moment to clarify because they might not do it themselves later.) Related: Try not to read.
7) Obey page limits.
8) Think ahead: Get objections to improper conduct on the record in case a review/appeal is necessary.
But: 9) Never, ever, ever argue with the adjudicator or speak over them.
10) Use a form of PDF that can be copies and pasted. You WANT to be plagiarized.
Finally, on any matter related to maintenance, Onyskiw v. CJM Property Management Ltd. (2016 ONCA 477) is required reading.
I'll write up the notable developments in residential tenancy law later.