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4. General Application Procedures
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) Issuance and Service of Application and Related Documents
. Initiation of Application and Required Documentation
Applications before the L&T Board are commenced by attending the local Board office with at least one completed copy of the applicable Application form, 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 issued, 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 of which are available on the Board's website. 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 the Notice of Termination has been served on the tenant [Reg s.53(1)]. For required 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 the Notice of Application and Related Materials
The previous (prior to 01 July 2015) practice of primarily relying on applicants to serve respondents with the application, and then following this with the Board's own letter to the respondents notifying them of the application, is now abolished.
With amendments to the RTA and the Board Rules in effect 01 July 2015, the Board was granted broad discretion regarding how service of the Notice of Application is to be performed, and what documentation is to accompany it (such as a Notice of Hearing, evidence, etc). While the default rule is now that the Board shall perform service of application and related materials on the responding parties, the Board can order that the applicant perform such service (and later file a certificate of service) in the following circumstances [RTA 188-189, Rule 10.1-10.2]:
Where the applicant must perform service, how to do it is explained in s.8 "Service and Filing of Documents", below.
- the application is for an above guideline rent increase;
- the application is to vary the amount of a rent reduction;
- the application is an amended application (ie. where the respondent has already been served with the original application);
- the LTB has granted a party’s request to shorten the time for service of the application;
- the issues in dispute on the application are time sensitive;
- the Board is for some reason unable to send the application to the other parties;
- broadly, where the Board determines that such an order is otherwise fair, just and expeditious.
Once performed, the applicant is then required to confirm proper document service with the Board by filing a properly completed "certificate of service" [Act s.189(3); Rule 10.6].
Certificate of Service
. Timelines for Service of Application and Materials Where Service Performed by Applicant
Subject to an Board order otherwise, the following timelines apply to service of the application and related materials, by type of application [Board Rule 10.3]:
Where timely service is not made the Board may either [Rule 10.7]:
- for an above guideline rent increase, transfer of a care home tenant or varying the amount of a rent reduction:
... at least 30 days before the hearing date;
- to end the tenancy and evict the tenant for any of the grounds listed here:
- impairing safety,
- illegal act involving drugs,
- wilful damage,
- interference with reasonable enjoyment in a small building where the landlord
lives in the building, and
- failure to vacate the superintendent unit.
... at least five days before the hearing date;
- alleging illegal lockout or denial of access to possessions after eviction by the Sheriff:
... at least five days before the hearing date;
- all other applications:
... at least ten days before the hearing date.
. Special Rules for Written and Electronic Hearings
- proceed with the application if there is no prejudice to any party;
- adjourn the hearing; or
- dismiss the application.
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"].
(e) Combination, Joinder and Severance
"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)].
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
(f) Amendment of Applications
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: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.
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.
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.
(g) 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
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) (b) Contingency Fees by Paralegals
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.
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
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, Fees 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)].
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].(d) Fees and Fee Waivers
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.
The Board has legal authority to charges fees in relation to taking applications and requests for reviews, providing photocopies of documents and other services [Act s.181]:
L&T Board Fee Schedule
It also has authority to waive such fees for low income individuals [Act s.181.1]:
Practice Direction on Fee Waiver Requests
Fee Waiver Request (form)
8. Service and Filing of Documents
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]:
. Notice of Entry [24-hour Notice]
- 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".
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".
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: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.
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).
. 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]:
(d) Filing with the Board
- (late) filing of the Certificate of Service;
- testimony of the person who performed the service.
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]:
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].
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 reason mail service should always be made directly to a Board office.
LTB Office Locations
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.
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