|
Return to First Part of Chapter
4. General Application Procedures
(a) Overview
The "Application" is the primary form of proceeding before the Board. Various types of applications are discussed throughout the program: tenant's rights, [see Ch.3, s.5], termination and eviction [generally see Ch.4, s.4 and specifically Chapters 5-8], and rent control [Chapters 11 and 12].
The general rules that apply to all these various types of applications are explained here.
(b) Board Discretion Regarding Procedure
As noted in s.1, the Statutory Powers Procedures Act (SPPA) [SPPA s.16.1, 23, 25.1] authorizes the tribunals that it governs (which includes the L&T Board) to make "rules" regarding both specific and general procedural issues. The L&T Board has made a general rule regarding its discretionary role in application procedures [Rule 2].
This Rule provides that the Board may take procedural steps or make procedural orders on its own initiative, or on request of a party (usually initiated by a either formal or informal "motion": see s.13, below) [Rule 2.1]. Typically this discretion would only be used to organize complex proceedings, or to grant adjournments.
Rule 2: Initiative of the Board
(c) French and Other Language Services
Parties, on request, are entitled to have the application documentation provided in French if [French Language Services Act (FLSA), s.5] the subject premises are located in, or the requesting party resides in, the areas listed in the Schedule to the FLSA (also note additional areas listed in Reg 407/94 [Rule 7].
Inquire of your local Board office as to the availability of French language services. Requests for French language services should be made to the Board in writing, as soon as the need for them is known.
Parties entitled to French-language application documentation as above are also entitled to have the hearing of the application conducted in French as much as is practically possible, as is determined by the Board member in light of the language capabilities of the parties, and before a French-speaking member where possible. Interpretation services in such cases will be arranged and paid for by the Board.
It is not possible to have hearings conducted on languages other than English or French. Witness testimony in languages other than the language of the proceeding (ie. English, or French as noted above) must be translated into the language of the proceeding at the expense of the party.
Also, where the Board finds it necessary, documentary evidence must be translated into the language of the proceeding (and even to/from French and English) at the expense of the party bringing the evidence [see Ch.14, s.5(j): "Hearings, Orders and Enforcement: Evidence: Evidence in French and Other Languages"].
(d) Initiation and Service of Notice of Application and Related Documents
. Background
In the relatively brief history of residential landlord and tenant law in Ontario, the procedure for initiating and serving an Application has been - for such a straightforward activity - accompanied by surprising practical uncertainty and political controversy. In particular, the provisions regarding delivery of the all-important Notices of Application and Notices of Hearing to the respondent (usually the tenant) have been highly contentious [these latter are critically discussed in Ch.14, s.4(d): "Hearings, Orders and Enforcement: Hearings: COMMENT re Notice of Hearing"].
Traditionally, the primary legal duty of "serving" the respondent (usually the tenant) with the Notice of Application has rested with the applicant (usually the landlord). This is a practice drawn from the origins of such proceedings in civil litigation (evictions were handled by the courts until the 1997 Tenant Protection Act). In civil litigation a Notice of Application (or Statement of Claim) is called "originating process" as the act of its issuance is what "commences" a legal proceeding, and it is served by the party who starts the case.
Perhaps due to the dominance of lawyers handling court cases, the practice of placing such service duties on parties to the proceeding has not come under significant organized criticism there. However in residential L&T termination proceedings, where parties are more commonly self-represented, it rightly came under much criticism due to the inherent "conflict of interest" that an applicant has with respect to the respondent tenant. In past practice before the Rental Housing Tribunal (under the previous Tenant Protection Act, or TPA), the only evidence before the Tribunal that the application had been brought to the attention of the respondent tenant was the filed 'certificate of service' of the landlord. Plainly there was motivation for unscrupulous landlords to file false certificates of service - particularly under previous TPA procedures which also enabled the landlord to obtain quick 'default judgment' if the tenant never filed a written dispute of the application.
This problem was compounded by a similar rule that landlords also served tenants with the Notice of Hearing, which is clearly the next most essential document in any case [this practice is a exception from typical tribunal practice, which normally requires this to be done by the tribunal [SPPA s.6(1), RTA s.188(2)].
In response to these concerns the RTA (while perpetuating these troublesome provisions) has added a separate (and somewhat ambivalent) duty on the Board to notify tenants of the filing of an application - and a similar one respecting Notices of Hearing [see Ch.14, 4(d): "Hearings, Orders and Enforcement: Hearings: COMMENT"]. As well, the broad availability of default proceedings (when a party fails to file a "dispute" to the application) has now ended, with most cases having to go to hearing [though significant and still troublesome ex parte (without notice) procedures exist].
. Special Rules for Written and Electronic Hearings
The Board will designate that some types of applications will be heard by way of written hearings (commonly rent control applications), as opposed to the typical "oral hearing" (ie. in-person). Such hearings have special service requirements [R10, R22] [see Ch.14, s.4(f): "Hearings, Orders and Enforcement: Hearings: Written Hearings"].
Similarly, where the Board elects for either written or electronic (telephone) hearings, then Notices of Hearing are required to contain specific explanations and cautions regarding specialized "right to object" and other matters [see Ch.14, s.4(f) and (g): "Hearings, Orders and Enforcement: Hearings: Written Hearings" and "Electronic Hearings"].
. Initiation of Application and Required Documentation
Applications before the L&T Board are commenced by attending the local Board office with completed copies (sufficient for all parties to be served) of the Notice of Application, any required supporting documentation and the applicable fee. If they are in order the Board will "issue" the application, open a file, and provide the applicant with additional information regarding their service duties. A Notice of Hearing will also be provided to the applicant, either at that time or later, depending on the nature of the application (different types of applications are treated with different priorities).
Applications must use forms approved (and issued) by the Board [Act s.185(1)]. All applications must be signed by the applicant personally, or by their authorized representative [see s.5 "Legal Representation", below]. Where one or more tenants are joining together in one Application all of them, or their collective representative, must sign the application [Act s.186(1)].
The various different types of applications require specific accompanying documentation. For example, all applications to terminate and evict based on a landlord's Notice of Termination must be accompanied by copies of the related Notice of Termination, and (when performed) a certificate of service confirming that it has been served on the tenant [Reg s.53(1)].
For accompanying documentation for other types of applications, see the section discussing the particular type of application you are involved with, or review RTA General Regulation s.53.
Application and related Board fees are set out in the Landlord and Tenant Board Fees Schedule.
. Service of Application and Notice of Hearing
How to physically serve documents is explained in s.8 "Service and Filing of Documents", below. This present subsection explains the timelines and other specific service requirements for Applications.
With the exception of a few types of applications (see "Class 1", below), the applicant must serve the Notice of Application and Notice of Hearing [Act s.188(2)] on the respondent.
There is no clear legal requirement in the Act or the Rules [R10] to also serve the respondent with supporting documentation (ie. Notice of Termination and related Certificate of Service, any Reg s.53 documentation) although it would be good practice to do so.
The applicant is then required to confirm proper document service with the Board by filing a properly completed "certificate of service" [Act s.188(3)].
Certificate of Service
Where there is more than one applicant (eg. multiple tenants), it is the duty of the filing applicant to serve the co-applicants with the Notice of Hearing [R10.6].
. Service Timelines by Type of Application
The Act allows the Board to establish rules assigning differing priorities and procedures to the different types of application procedures [Act s.188(1)]. These several rules are located in Board Rule 10, which is summarized here.
In most cases the service should take place as soon as the applicant has both the issued Notice of Application and the Notice of Hearing.
In any event [unless the Board designates the application to be heard by written hearing [see Ch.14, s.4(f)], the following service rules apply to the following different classes of application: Class I - Consent-Related Terminations- Termination and Eviction based on Agreement to Terminate or Tenant's Notice of Termination [see Ch.4, s.3]
- Termination and Eviction based breach of Mediated Settlement [see Ch.8, s.3]
These are normally "ex parte" applications, which do not require service of the Notice of Application or related documents on the tenant. However the Board has discretion to require service, which is why they are included here. Where the Board orders service, it shall be ordered to be done within ten days [R10.2].
Class II - Re-Opening Non-Payment of Rent Settlements- Request to Re-Open Non-Payment of Rent Termination and Eviction Application After (Non-mediated) Settlement [see Ch.7, s.10]
The "requester" must serve copies of the Request to Re-Open and the Notice of Hearing "as soon as possible" but not later than five days before the time set for the hearing [R10.3].
Class III - Non-Urgent- Above-Guideline Rent Increases [see Ch.11]
- Variations of Rent Reduction on Decline in Municipal Taxes and Charges [see Ch.12, s.2(c)]
- Transfer out of a Care Home [see Ch.2, s.3(e)].
Service shall be done "as soon as possible", but not later than 30 days before the time set for the hearing, unless otherwise directed by the Board" [R10.4].
Class IV - Urgent- Tenant Rights Application re change in locks [see Ch.3, s.3(i) and s.5]
- Former Tenant's Application Regarding Abandoned Property [see Ch.8, s.4]
- Early Termination for Cause as follows:
- Illegal Acts, Drug-related activities [see Ch.6, s.2]
- Damage, Severe Damage [see Ch.6, s.4]
- Substantial Interference with Reasonable Enjoyment, "landlord as neighbour" [see Ch.6, s.5]
- Safety [see Ch.6, s.3]
- Termination of Superintendent's Employment [see Ch.2, s.5]
Service shall be done "as soon as possible", but not later than five days before the time set for the hearing, [R10.5].
Class V - All Others
These include:- most tenant rights application [see Ch.3, s.5],
- most regular termination and eviction applications [see Ch.5];
- most other "early termination for cause" termination and eviction applications [see Ch.6];
- all non-payment of rent termination and eviction applications [see Ch.7], and
- any other applications not included in Classes I through IV above.
Service shall be done "as soon as possible", but not later than ten days before the time set for the hearing, [R10.1]. . Failure to Serve Documents as Required
Where the required party fails to serve the Notice of Application or Notice of Hearing as required, the Board may [R10.8]:- proceed with the hearing, if there is no prejudice "whatsoever" to the respondent or the respondent consents;
- adjourn the hearing to enable the respondent time to prepare (the most likely result);
- dismiss the application, if "the party deliberately failed to serve the documents in accordance with these Rules".
Any delay caused by failure to properly serve the Notice of Application or Notice of Hearing may also be weighed as "unreasonable conduct" in the later assessment of costs between the parties [R10.8; see Ch.14, s.6(d)].
(e) Board Notice to Tenant
. Overview
As noted above in (d) ["Background"] - and as a means of addressing problems with previous service regimes - the RTA has supplemented those (still existing) rules by creating a duty on the Board to independently notify the respondent in writing of the commencement of the Application [Act s.189(1); Reg s.55].
It is the Board's practice to do this by simple letter ["...shall notify the respondent in writing that an application has been made and, where possible, shall provide the respondent with information relating to the hearing and such other information as is prescribed": Act s.189]. There is no apparent requirement that a copy of the application (or supporting materials) be sent as well, and the Certificate of Service form does not require this either.
. Contents of Board Notice
Such letters shall include [Reg 54(1)]:- the Board's application file number;
- if scheduled, the date of the application hearing;
- contact information for the Board.
. Exceptions
Exceptions to these Board notice provisions exist for landlord's applications for termination and eviction based on [Act s.189(2); Reg 54(2)]:- a Tenant's Notice of Termination [see Ch.4, s.3] [Act s.77];
- an Agreement to Terminate [see Ch.4, s.3] [Act s.77];
- a previous mediated settlement [see Ch.8, s.3] [Act s.78].
These exceptions parallel the situations where an applicant landlord's duty to serve Notice of Application and Notice of Hearing on the tenant are similarly waived (ie. ex parte applications).
. Service of the Notice
In most circumstances the Board's letter may be served in accordance with normal service rules (typically by mail) [see s.8: "Service and Filing of Documents", below].
However where an application is to be heard seven days or less from its being filed, the notice letter shall be sent by either [Reg s.55]:- courier; or
- where courier is not available, by mail and by attempting telephone notice.
(f) Combination, Joinder and Severance
. Overview
"Combination, joinder and severance" relate to situations of multiple applicants or respondents. The Board has discretion to combine and to sever (ie. to separate jointly-filed) applications - and to join parties, as it sees fit.
It appears that the procedure for a party to initiate such a change, is that used for party-initiated "amendments" [(g), below].
. Combination and Joinder
One or more tenants may join together in one Application filing - although in such a case all tenants (or their representative/s) must sign the application personally [Act s.186(1)(2)].
Landlords may combine several different types of applications respecting one tenant into one Application filing, except for rent increase applications [Act s.186(3)].
The Board has a general authority to combine two or more applications "if the Board believes it would be fair to determine the issues raised by them together" ("joinder") [Act s.198(1)].
. Severance
Where applications have been combined on filing, the Board may order them severed if "the Board believes it would be appropriate to deal separately with different matters included in the application" [Act s.198(2), 199]. In such a situation, it shall deal with "each severed part dealt with as though it were a separate application under this Act" [Act s.199].
The Board's Rule governing procedures in severance situations is linked here:
Rule 18: Severing an Application
(g) Amendment of Applications
. Overview
What constitutes "amending" an application is not specified in the legislation, but logically it includes changes to any aspects of the application contents submitted by the applicant, including: parties, remedy sought, fact allegations, monetary amounts, etc. This interpretation is consistent with similar practices in civil litigation.
Both the Board and parties may initiate such amendments, though the procedures vary.
. Party-Initiated Amendments
Applicants may request that the Board grant permission to amend an application [Act s.200(1)]. This process is not commenced by way of motion [as per s.13, below]. There is a separate (though very similar) procedure for this set out in the Board Rule linked here:
Rule 16: Amending Applications
This Rule establishes that the usual procedure is for Board staff to process the amendment as though it was granted, making any procedural changes required - and then for the final decision whether to grant the amendment to be made by the presiding Board member at the hearing.
. Board-Initiated Amendments
Along with it's unconventionally "intrusive" evidence-gathering and evidence -compelling authority [see Ch.14, s.5(f): "Hearings, Orders and Enforcement: Evidence: Board Initiative to Move to Amend Applications"], the Board - "on its own motion" [see s.13, below] may also amend applications on its own initiative "before, during or after a hearing" [Act s.201(1)(f)]. Note:
While this authority may be exercised "before, during or after" a hearing, it will not be read to extend to the period after a final order is issued. At that point the Board becomes "functus", and loses jurisdiction. The legislative authority for this function is located in close association with the provisions establishing the Board's aggressive evidence-gathering powers, suggesting that it is intended to be used when new Board-generated evidence dictates the need for amendments.
Such motion must be served on all the parties, and may be granted "if the Board considers it appropriate to do so and if amending the application would not be unfair to any party" [Act s.201(f)]. In such a motion, the Board must disclose to the parties "any relevant information obtained by the Board", and "give() them an opportunity to explain or refute it" [Act s.201(2)].
Despite its title, R16: "Amending Applications", appears only to govern applicant-initiated amendment requests.
(h) Withdrawal of Applications
Applications may generally be withdrawn by the applicant at any time [see Rule 17], although the consent of the Board is required for such withdrawal where [Act s.200(2-4)]:- the hearing has commenced; or
- the application was by the tenant for a determination that "the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant's occupancy of the rental unit" pursuant to [Act s.29(1)4]. [see Ch.3, s.5: "Tenant Rights: Tenant Rights Applications".
5. Legal Representation
(a) Overview
Applicants may act through representing paralegals and lawyers. As well, some persons who have traditionally provided unpaid legal services with respect to residential L&T matters ('helpers' such as family members, friends and neighbours) may continue to do so: By-Law of the Law Society of Upper Canada [see By-Law 4, s.30]. Any of these may sign Applications [Act s.185(2)] and Notices of Termination [Act s.43(1)] on behalf of a party, although if the party has given the representative written authorization to act for them, the Board may require that to be filed with it [Act s.185(2)]. Lawyers and paralegals will normally do this, and it is a practice to be recommended for any representative, however Rule 8: ["Application Screening Rules"] does not appear to require the filing of such written authorizations as a matter of policy.
Additionally, such paid representatives may have cost awards made against them personally if their conduct has been particularly irresponsible or egregious [see Ch.14, s.6(d): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Order: Orders: Costs"]; Interpretation Guideline #3.Case Note: Thomson v Sisters of St. Joseph (Div Ct, 2010)
This is an interesting struggle by a tenant and his unlicensed representatives (that is, he attempted to rely on legal representation from non-Law Society members - ie. people who were not licensed lawyers or paralegals). At the Board level, extended proceedings against the tenant for non-payment of rent were disputed by him under the (vindicated) argument that past Notices of Rent Increase were illegal and thus void, raising directly the issue of 'just what was the rent due anyway'.
The landlord sought by motion to remove the tenant's unlicensed representative under SPPA s.23(3). At the hearing of that motion the tenant attended with a new unauthorized representative, and the LL sought on the spot to amend their motion to exclude that representative, which the Board did. As a result of that the tenant asked for an adjournment to find new counsel, which was denied. The tenant then walked out of the hearing and, absent any contrary evidence, the LL's application to evict was granted.
The court held that the refusal to grant to adjournment was a denial of natural justice and granted the appeal, ordering a new hearing on all issues. (b) Contingency Fees by Paralegals
A "contingency fee" is a fee charged by a representative based on the amount "recovered, gained or saved" through the efforts of the representative.
Paralegals are restricted in the percentage of contingency fee they may charge or take to "10 per cent of the amount that has been or may be recovered, gained or saved, in whole or in part, over a one-year period through the efforts of the agent" [Act s.214(1); Reg s.60]. This restriction applies both to representation before the Board and to 'assistance' respecting any matter arising under the RTA.
Paralegals should be aware that any agreement which purports to violate this limit is void (apparently generally, not just with respect to the illegal part of the fee) [Act s.214(2)]. Any fee recoveries in such situations may have grounded in restitution.
(c) Contingency Fees by Lawyers
The above restrictions do not apply to lawyers, who are governed by the Law Society in respect of contingency fees. It is beyond the scope of this Legal Guide to explain contingency fees chargeable by lawyers.
6. Payments to the Board
(a) Overview
There are several residential L&T situations where the ability to conveniently pay money (usually rent) to the administrative Board "in trust" is useful. These provisions are only available during, and in relation to, a current application involving the payor (the one paying the money) as a party.
(b) Non-payment of Rent Terminations
Extensive procedures for just such payments are an integral part of the specialized "catch-up payment" provisions which allow tenants to preserve their tenancies in non-payment of rent termination situations by late payment of rent arrears and additional accrued charges [see Ch.7: "Non-Payment of Rent Terminations" and Act s.74]. Such "catch-up payments" may be made anytime before eviction orders are executed.
Board Rules addressing such payments are linked here [R31.01-31.09]:
Rule 31: Paying Money Into and Out of the Board
(c) Rent Payments to Board During Tenant Repair Application
On the request of the applicant/tenant, the Board may permit a tenant who has made a "Tenant's Right" Application regarding repair of the rental unit [see Ch.3, s.5 and Act s.29(1)1] to pay their rent to the Board in trust where it "considers it appropriate to do so", pending resolution of the repair application [Act s.195(1)(b),(3)].
Form: Request to Pay Rent to the Board on a Tenant Application About Maintenance
Such Board-authorized payments, to the extent of their amount, are deemed to satisfy the tenant's legal duty to pay rent [Act s.195(5)].
Such requests may be made before or at the hearing of the application. Board Rule 31 (linked above) addresses procedures for such requests at R31.11-31.15.
Factors and circumstances which the Board may assess in any decision respecting the payment of money into the Board are set out in Interpretation Guideline #2: "Payment into the Board", linked here:
Interpretation Guideline 2: Payment Into the Board
(d) Other Payments
Generally, the Board may "require" any respondent to an application "to pay a specified sum into the Board within a specified time" to the Board in trust where it "considers it appropriate to do so", pending resolution of the application before it [Act s.195(1)(a),(3)]. This provision appears designed to address situations where a Board decision will be delayed for a while. The disposition of the money will typically be part of the final order of the Board at the end of the case.
Upon failure of the respondent to make payment as so required by the Board, the "Board may refuse to consider the evidence and submissions of the respondent".[Act s.195(4)]. This provision can be expected to be applied where tenants are seeking to 'set off' (deduct) the speculative value of tenant's right claims against rent arrears owing.
Factors and circumstances which the Board may assess in any decision respecting the payment of money into the Board are set out in Interpretation Guideline #2: "Payment into the Board", linked above.
(e) Payment Procedures
The Board may establish bank accounts for the purpose of receiving and holding monies paid to it in trust [Reg s.57(1)]. Such monies shall bear interest at "the rate of 0.25 per cent per year, compounded semi-annually" [Act s.57(4)].
7. Forms and Documents
(a) Mandatory Form Use
Both "Notices of Termination" used between parties, and "Notices of Application" used to commence Applications to the Board, must be in the Board-issued and approved forms [Act s.43(1); 185(1)].
(b) Contents
Depending on the type of termination or application involved, there are various content requirements required by the RTA (explained throughout the program in relation to each of these various topics).
The Board is required to be somewhat forgiving to parties as to quality of the party-added "contents of forms, notices or documents" (ie. the completion of the "blanks" in Board-approved forms), which require only "substantial compliance" with the RTA requirements [Act s.212, SPPA s.28]. However it is a general principle of the common law tradition that "forfeiture" (such as termination) provisions are read strictly against the applicant, so landlords can expect to be treated less generously in this respect than tenants.
Further, parties should be careful not to place too much reliance on this 'forgiveness' provision where inadequate or incomplete filling out of the forms prejudices the interests of the other party. For instance, wherever a "cause" of termination is specified, it should be specified with sufficient detail to allow the tenant to know what is being alleged sufficiently to have a chance of refuting it.
Board Rule 1.4 seems to be more forgiving of errors and shortcomings in documents "created after the application was filed" - requiring that the error result in irreparable prejudice to other parties before the application can be considered fatally flawed. This necessarily suggests a lower tolerance for such mistakes at the earlier Notices of Termination stage.
(c) Electronic Filings
The following sets out the Board's authority to make Rules for the use of electronic filing and documents (ie. e-mail, not fax). However to date no such Rules have been made, and these provisions are not yet active: Provision is made in the RTA for the use of electronic-form Application documents and forms, which may be "created, signed, filed, provided, issued, sent, received, stored, transferred, retained or otherwise dealt with" as the Rules allow [Act s.213; Reg s.59].
Such documents may be "signed" by the act of typing a party's named in the electronic documents, and any additional documentation required may be mailed, faxed or otherwise delivered such that it is "received" by the Board within five days after the Application is electronically filed.
8. Service and Filing of Documents
(a) Overview
This section explains how documents may be served between parties ("service"), on the Board ("filing") - and how service of documents is proven to the Board.
Specifics regarding who to serve documents on - and when to serve them - are set out in the specific discussions of each type of termination, application and other procedure throughout this Legal Guide [application timelines are discussed extensively in s.4(d): "General Application Procedures: Initiation and Service of Notice of Application and Related Documents", above].
Similarly, the rules governing the computation of time are set out in s.9: "Calculation of Time", below. An important distinction in the calculation of time between "service" and "filing" is that non-business days are not counted for purposes of filing, but they are counted for purposes of service [this is explained more in s.9].
As noted above [s.7(c)], while the RTA legally provides for the use of electronic documents [ie. e-mail, not fax], these provisions have not yet been implemented by the making of appropriate Board Rules. As such electronic service is yet available.
(b) Service on Parties
. All Documents
Notices and other documents on parties may be served in any of the following ways [Act s.191, R5]:- PERSONAL SERVICE
Handing it to the person personally directly; or
in the specific case of:
Landlords: "handing it to an employee of the landlord exercising authority in respect of the residential complex to which the notice or document relates".
Tenants, subtenants or occupants: "handing it to an apparently adult person in the rental unit".
- PLACEMENT IN MAIL BOX
Placement in their regular mail box, or if none then by "leaving it at the place where mail is ordinarily delivered to the person".
- MAIL
Mailing it to the person's "last known address where the person resides or carries on business". Mailed notices and documents are "deemed" received on the fifth day after mailing [Act s.191(3)]. "Mail" includes Expresspost: R5.4.
- COURIER: courier service will normally be deemed to be effective the next non-holiday day, unless the sender paid for "same-day" service, in which case service is effective that day: R5.3.
- FAX (if the receiving person has either a business or a personal fax machine): fax service is effective immediately: R5.5.
- DELIVERY TO RENTAL UNIT "by placing it under the door of the unit or through a mail slot in the door".
. Notice of Entry [24-hour Notice]
In addition to the above "all documents" methods of service, a Notice of Entry by a landlord [under Act s.27; see Ch.3, s.3(f): "Tenant Rights, Remedies and Responsibilities: Privacy, Entry and Related: Entry with 24-Hour Written Notice"] may be made by "posting it on the door of the rental unit" [R5.1].
. To Representative
Any application documents, or those created subsequent to an application being commenced, may be served by "hand delivery, mail, courier or fax to the representative for a party": R5.1. Lawyers and paralegals will expect service upon them once they are "on record" for their client, and the Board will expect this as well.
. As Per Board Direction
The Board may, in writing - either on their own initiative or at the request of a party, direct or permit any method of service of any application documents, or those created subsequent to an application being commenced: R5.1. This provision may be useful in situations where service on a person is proving difficult [see Rule 5.2]:
Rule 5: Serving a Document on Another Party
. Proving Earlier Service
Despite the normal "date of service" rules, it is still open to a party to prove that effective service was achieved earlier: R5.6 [Act s.192(2)].
. Validating Service
Regardless of these service provisions, service will be validated by the Board "if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period" [Act s.191(2); R5.]. This provision allows technically inadequate service to be 'legitimized' if there has been no prejudice to the party served.
. Waiver of Service
After an application has been filed, a party may agree to "waive" service compliance on them of any document, thus relieving the other party of the duty [R1.6; SPPA s.4(1)].
"Waiver" can be useful to allow parties already present in a hearing to move to consider other issues immediately, despite absence of formal notice - and where professional parties interact frequently and have established more mutually convenient methods of service (eg. e-mail).
(c) Proving Service
. Certificate of Service
Service of "Notices of Application" and "Notices of Hearing" will have to be proven, and service of some other Notices of documents may [as the Board directs (R11.4) or the Rules require] have to be proven, to the Board by the filing of "proof of service".
Certificate of Service
The standard form of "proof of service" is the Board-approved "Certificate of Service" [Act s.188(3)], which must be signed by the person who performed the service, and which must provide time and method details of the service, as appropriate (there are spaces for this information in the form) [R11: "Certificate of Service"].
. Filing Certificates of Service
A certificate verifying service of the Notice of Application and Notice of Hearing must be filed with the Board "within five days after [they] are served" [R11.2]. Note:
This provision is ambiguous as to whether the five days counts from when the service was initiated (as by mail), or effective (in the case of mail, five days later). While it will probably be held to mean five days after service is effective, leaving it that late is riskier than assuming that it counts from the commencement of service (ie. putting it in the mail). For other documents - where the Board has required the filing of a Certificate of Service, filing should be done as directed by the Board or as soon as possible.
. Alternative Proof of Service
"Proof of service" of a Notice of Application and Notice of Hearing may also be made at a hearing by [R11.3]:- (late) filing of the Certificate of Service;
- testimony of the person who performed the service.
(d) Filing with the Board
Filing of a Notice or document by a party on the Board may be achieved by any of the following [Act s.192(1); Rule 6]:- HAND-DELIVERY
To any Board office, or any ServiceOntario Centre location that accepts service for the L&T Board (not all do, so call first).
In the latter case the document will be forwarded to the local Board office holding the application file, which may cause delay. For that reasons mail service should always be made directly to a Board office.
Board Office and ServiceOntario Locations
- MAIL
To the Board office holding the application file.
Mailed notices and documents are "deemed" received on the earlier of the fifth day after mailing, or the actual date received [Act s.192(2)].
- COURIER OR FAX [R6.2]
To any Board office - though it is preferrable to send it to the Board office holding the relevant Application file, as forwarding it from another office may cause delay.
Note again the important distinction in the calculation of time between "service" and "filing" is that non-business days are not counted for purposes of filing, but they are counted for purposes of service [this is explained more in s.9, immediately below].
9. Calculation of Time
(a) Overview
There are numerous instances throughout the RTA, its General Regulation and the Rules where timelines apply - in particular to the notice period for a Notice of Termination, and the limitation periods that apply for the filing of a Notice of Application after the date of termination set out in a Notice of Termination.
This section explains how to count time for these purposes, and the rules governing when the Board can extend or shorten timelines (which are complex).
(b) General Rule
The most basic rule to keep in mind when calculating time between two events (eg. service of Notice of Termination and date of termination) is to exclude the day on which the first event occurs, and include the day on which the second event occurs
[Act s.193, Rule 4: "Computation of Time"].
Rule 4: Computation of Time
Note however an important distinction in the calculation of time between "service" and "filing" is that non-business days are not counted for purposes of filing, but they are counted for purposes of service [this is explained in the examples below].
(c) Service
. Overview
Documents to be served by one party to another include both those generated before and after an Application is commenced to the Board. An example of one coming before an Application would of course be a Notice of Termination. An example of one coming after would be the Notice of Application itself.
Note that - unlike the situation for "filing" (below) - there are no days (such as holidays) which are excluded from the "service" time calculation.
Remember as well that mail service is only effective on the fifth day after mailing Act s.191(3)] - so if a document is mailed, it is not effective until the fifth day after it is mailed.
. Service Example
Let's take a relatively straightforward example of the mail service by a landlord of a Notice of Termination on a tenant, by reason of serious impairment of the "safety" of a person.
"Safety" is one of the "early termination for cause" grounds which may give a "date of termination" that does not have to fall at end of a period or term of the tenancy - so Notice of Termination can be served anytime in the course of the tenancy. It requires no less than a 10-day "notice period", which is the time between the service of the Notice of Termination and the date of termination specified in the Notice.
Let's say that the landlord mailed the Notice of Termination on 20 of July. If the document were personally served we could start are counting using the 20th as our reference point - however mail service is not effective until the fifth day after mailing - which would be the 25th of July.
July has 31 days, so we start counting by excluding the 25th - but counting 6 days 26th to 31st) in July. That leaves 4 days to count in August, so that the "date of termination" specified in the Notice of Termination cannot be earlier than 04 August.
(d) Filing
. Overview
The rules for calculating time for "filing" (which is really just service on the Board) are very similar to "service" (between parties) - with the important distinction that "non-business days" are not counted for purposes of filing (because government offices are closed). When an event fall on a "non-business day" it gets bumped ahead to the next business day for calculation purposes.
. Non-Business Days (Holidays)
"Non-business days" are as follows (these are the days that Board and ServiceOntario Centres are closed) [R4.2]:- any Saturday or Sunday,
- New Year's Day,
- Family Day,
- Good Friday,
- Easter Monday,
- Victoria Day,
- Canada Day,
- Civic Holiday (August),
- Labour Day,
- Thanksgiving Day,
- Remembrance Day,
- Christmas Day,
- Boxing Day, and
- any special holiday proclaimed by the Governor General or the Lieutenant Governor.
If New Year's Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday, and if Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays, and if Christmas Day falls on a Friday, the following Monday is a holiday.
. Filing Example
Let's take similar dates to those used in the service example above, but change the situation to the mail filing of a landlord's Notice of Application with the Board for issuance back to them so they can then serve it on tenant.
Let's say it was mailed to the Board on Monday, the 7th day of May. Again, mail service is (normally) effective on the fifth day after mailing, which in this case is Saturday, the 12th of May.
Of course, both the 12th and the 13th are holidays (Saturday and Sunday). So the mail filing is not effective until Monday, 14 May. If the Monday were any sort of civic holiday then it would get bumped ahead again to the Tuesday.
(e) Where Board May Not Extend and Shorten Time
The Board may not waive or modify the time-counting rules set out in (b) above, except as in (f) below.
For 'greater clarity', the Board may not extend or shorten the times listed in Reg s.56, linked here:
RTA Regulation s.56
(f) Where Board May Extend and Shorten Time
. Timelines Which May be Changed
The Board may extend or shorten the counting of time for the following purposes [Act s.190(1); R15]:- making above-guideline rent increase applications under s.126 [see Ch.11];
- applying to the Board for a review of an inspector's work order under s.226 [see Ch.3, s.4(d): "Tenant Rights, Responsibilities and Remedies: Repairs, Vital Services and Maintenance: Maintenance Standards"];
- application to the Board for determination of reasonableness of refusal of consent to assign mobile home park site under s.159(2) [see Ch.2, s.4];
- any other timeline not listed in (e) above [Act s.190(2)]. These may include the following [R15]:
- the deadline for making a motion to set aside an ex parte Order
- a Board-ordered timeline
- shortening the time for serving a Notice of Hearing
. Procedures
The Board's Rule on this issue is linked here:
Rule 15: Extending and Shortening Time
Attempts to file such documents past expiry of a timeline must include a request setting out the reasons why an extension is required, and - where possible - include a copy of the subject document [R15.3]. Such requests may be considered with or without submissions from the other parties, as the Board orders [R15.5].
Form: Request to Extend or Shorten Time
Denials of such requests are considered final, despite additional reasons being cited in further requests [R15.4].
. Board Criteria for Extending or Shortening Timelines
The following factors shall be considered in the Board's decision to extend or shorten time [R15.6]:- the length of the delay, and the reason for it;
- any prejudice a party may experience, and whether it may be remedied;
- whether the request is made in good faith; and
- any other relevant factors.
10. Summary Dismissal
(a) Overview
Over the last few years administrative tribunals have started to develop a series of procedures for quick disposition of cases, similar to what the courts have had for years ("summary judgment motions").
Firstly, all SPPA-governed tribunals (which includes the Board) have general procedural authority available to them, to "may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes" [SPPA s.23(1)], as is explained at this SPPA program link:
Administrative Law (Ontario)(SPPA): Ch.5: Summary Proceedings
Next, the SPPA grants it's tribunals "rule-making authority" to address situations where dismissal may be justified for "cause". Such "causes" can include proceedings being brought in "bad faith", "frivolous or vexatious" or beyond jurisdiction [see (b) and (c) below]. This authority is explained further in this SPPA program link:
Administrative Law (Ontario)(SPPA): Ch.20: Summary Dismissal for Cause
Next, the SPPA allows its tribunals to refuse to process documentation that it considers inadequate regarding contents, timing (ie. filed too late), fee payment, and other reasons [see (d) and (e) below]. This SPPA authority is discussed more fully at this link:
Administrative Law (Ontario)(SPPA): Ch.19: Tribunal Refusal to Process
All of these authorities, to greater and lesser extents, are utilized by the Board in making the summary procedure rules discussed below.
(b) Summary Refusal and Dismissal of Applications for Cause
. Overview
The Board may (typically through the decision of a single presiding member) (1) dismiss an application without a hearing or (2) refuse to accept an application for filing, if it is of the opinion that the matter [Act s.197(1)]:- is frivolous or vexatious,
- has not been initiated in good faith, or
- discloses no reasonable cause of action.
Historically - and in other contexts - these causes are sometimes collectively known as "abuses of process".
. Frivolous and Vexatious
What constitutes being "frivolous and vexatious" is a very broad category drawn from civil litigation and the old Ontario Vexatious Proceedings Act. Some of the types of situations it can encompass include (but are not limited to): matters that are extremely minor (what lawyers would call "de minimus"), matters that are repeatedly litigated despite already being finally resolved (res judicata), and matters where the behaviour of a party is repeatedly disruptive and abusive.
These situations are common amongst those with mentally disabilities, particularly those with schizophrenic or dementia-induced paranoia. If this is suspected to be the case a greater burden lies on both the Board and any legal professionals involved to ensure that the disability of the would-be applicant is accomodated to the extent possible. Boards in particular should be loath to dismiss such a matter without hearing, and should consider holding hearings to determine if - through any overlay of delusion - any legitimate legal issues are present.
"Frivolous and vexatious" matter can closely resemble, and sometimes overlap, matters that are "initiated in bad faith".Case Note: Goble v Vranjes (Div Ct, 2010)
On a tenant's Divisional court appeal of a Board order requiring payment of rent arrears by way of increased monthly rent, backed by a s.78(1) condition that on breach the landlord could move ex parte for eviction, the landlord responded with a motion to - amongst other things - to quash the appeal as being frivolous and vexatious. On uncontested affidavit evidence the court found that the tenants had engaged in a course of litigation conduct (which it characterized as a "scam") designed primarily to impede the landlord from regaining possession of the premises so that they could live there continuously rent-free. Applying it's "frivolous and vexatious" jurisdiction under s.140 of the Courts of Justice Act (CJA), and its general CJA s.134(3) authority to quash an appeal, the court quashed the appeal. Having done so, and while characterizing the tenant's written submissions as generally without merit, the court did not engage in any any detailed consideration of those arguments. . Bad Faith
"Bad faith" is similarly a broad term that can roughly be equated with "ulterior motives". Examples might include an intent to harass another party, political attempts to 'clog the Board' with repeated meritless applications, and continued pressing for remedies for the same cause of action before both the Board and in the civil courts.
. Disclosing No Reasonable Cause of Action
Civil proceedings in the court have what is called a "non-suit" motion, designed especially for situations where it is alleged that that the matter "discloses no reasonable cause of action". Such motions generally operate by presuming all the factual allegations to be true, and then examining any remaining legal issues for merit. Obviously, if all of one's alleged facts are proven true - and still no case remains - then the case overall has no merit.
This ground of summary dismissal might also be available there is a defect in the jurisdiction of the Board to properly deal with the matter before it [such defects may occur in relation to any of several jurisdictional aspects of the case: see s.3 "Board Jurisdiction", above] - although a 'stay' (suspension) of proceedings is the traditional legal response to absence of jurisdiction.
(c) Additional Summary Dismissal: False or Misleading Documentation
The Board may (typically through the decision of a single presiding member) dismiss an application without a hearing if it "finds that the applicant filed documents that the applicant knew or ought to have known contained false or misleading information" [Act s.197(2)]. This authority is really an expression of the broad "bad faith" cause for summary dismissal discussed above.
Note that this standard applies to "filed documents" only, and that it extends to any of the following types of information:- intentionally false;
- intentionally misleading;
- negligently false;
- negligently misleading.
"Negligently" as I use the term here applies to situations where a party had a duty to (ie. "ought to") verify the reliability of the information they put forward, but failed to reasonably fulfill that duty. This standard does not require complete accuracy, just "reasonable" and good faith efforts to ascertain and convey accurate information - and to reflect any uncertainty uncovered or known.
(d) Documents Late or Inadequate Content
Documents tendered for filing which are late (ie. outside of any applicable limitation period) or inadequate with respect to content (eg. names, addresses, key allegations, calculations, etc missing, illegible or incomplete) may be refused by Board staff, subject to correction by the applicant if possible.
The reasons for such refusals are very similar to the "procedural defences" to terminations discussed in Ch.9, s.2: "Termination Defences: Procedural Defences", and the ultimate decision of whether an uncorrected problem is fatal to the application will always be left to the presiding Board member at the hearing (how exactly this happens when an Application is refused by staff is unstated).
Board Rule 8: "Application Screening Rules", sets out the Board's policy on these issues. It addresses such inadequacies (and oppourtunities for correction) regarding such Notice of Termination and Notice of Application topics as:- lack of supporting documentation;
- tenant not in possession of premises at time of application;
- premature or late filing;
- inadequate notice period in Notice of Termination;
- inadequate identification regarding name or rental unit;
- incorrect rent or calculation figures;
- lack of signature, representative's name, or contact information.
- inadequate details re "reasons" or "cause" for termination, or corrective measures required for "remedial oppourtunity" first contravention terminations.
The full Rule is linked here. It should be reviewed carefully in light of the specific problem you are faced with:
Rule 8: Application Screening
(e) Non-Payment of Fine, Fees or Costs
The Board has jurisdiction [see s.3(b): "Board Jurisdiction: Parties"] to refuse, to stay (ie. suspend) or to discontinue an application if the applicant has failed to pay any applicable Board fee, or to comply with a previous Board Order to pay a fine or "Board" costs [Act s.196(1); see Ch.14, s.6(d)]. In the case of a refusal or a stay, payment would normally lift the sanction.
Board Rule 9, linked here, sets out the Board's policy in such situations. It has an exception for "urgent applications", which may be accepted by staff subject to final determination by the presiding Board at a hearing:
Rule 9: Refusing to Accept or Proceed with an Application
(f) Comment
The function of these various summary refusal and dismissal powers is to serve the convenience and logistical efficiencies of the Board and the "other" parties, in itself a worthwhile policy goal.
On the other hand what they risk - if improperly applied - is the complete abrogation of the would-be applicants' rights with respect to the matters involved. Except where the issue is jurisdictional (eg. an allegation of "wrong forum"), the application of these rules risks a denial of the rule of law for the applicant involved.
As such - as especially where abuse of process is suggested, it seems appropriate that these powers should be used very conservatively - and only after clear grounds or provocation can be plainly shown on the documentary record alone. Any uncertainty in this regard should require the matter to proceed to hearing so that testimonial evidence can be called on the summary dismissal issue as a preliminary matter. While such admonitions may seem to be unnecessary, past practice with some Ontario administrative tribunals - particularly the old Human Rights Commission - has shown that they are not.
Continue to next part of Chapter |
|
|
|
