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9. Calculation of Time
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].
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.
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]:
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.
- 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.
. 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
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
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
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)]:
Historically - and in other contexts - these causes are sometimes collectively known as "abuses of process".
- is frivolous or vexatious,
- has not been initiated in good faith, or
- discloses no reasonable cause of action.
. 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) . Bad Faith
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" 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:
"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.
- intentionally false;
- intentionally misleading;
- negligently false;
- negligently misleading.
(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:
The full Rule is linked here. It should be reviewed carefully in light of the specific problem you are faced with:
- 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.
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
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.
11. Document Disclosure
The Board has enacted authority given to it under the SPPA [s.5.4] to make rules regarding pre-hearing disclosure of documentary evidence amongst parties. This authority, which cannot extend to privileged material, is discussed in the SPPA program as linked here:
Administrative Law (Ontario)(SPPA): Ch.14: Document Disclosure
(b) Case-by-Case Disclosure
While the Board has used this authority in making Rule 19: "Disclosure Rules", it has not [with limited exceptions, see (c) below] imposed a general duty of disclosure of documentary evidence in all applications before it. Rather it has simply authorized each presiding Board to require disclosure on a case-by-case basis, on such schedule as the Board may impose.
The sanction for failing to disclose as directed is the possibility of such evidence being refused admission at the hearing.
The Board Rule also: "encourages cooperation from parties in voluntarily disclosing and exchanging all relevant documents or other material, before the hearing." That's nice.
(c) Mandatory Disclosure
Disclosure of legal rent details is expected in applications for above-guideline rent increases [under Act s.126] which are based in whole or part on an extraordinary increase in municipal expenses and utulities ("EIMEU") or security service operating costs ("SSOC") [see Ch.11] [R19.2].
In addition, there are - scattered throughout this Legal Guide in relation to the various types of applications - requirements for supporting materials or documentation which should "accompany" [Reg s.53] applications. As to disclosure requirements respecting these documents see the Note at s.4(d) above ["Initiation and Service of Notice of Application and Related Documents: Service of Application and Notice of Hearing"]. In my opinion natural justice requires service of these supporting documents with the applications themselves, though RTA law and rules are ambiguous on the issue. The natural justice argument may have to be raised on review or appeal [see Ch.15] if necessary.
12. Pre-Hearing Conferences
The Board has enacted authority given to it under the SPPA [s.5.3] to make rules for "pre-hearing conferences" at which the parties, with the facilitation of a Board member or staff person may consider:
This authority is discussed in the SPPA program as linked here:
- agreeing on facts or evidence,
- simplification or settlement of some or all of the issues,
- estimated duration of the hearing,
- scheduling steps of the proceeding, and
- "any other matter that may assist in the just and most expeditious disposition of the proceeding."
Administrative Law (Ontario)(SPPA): Ch. 13: Pre-Hearing Conferences
In addition to these goals, Board Rule 20 (linked below) has added another purpose common to such proceedings in other legal contexts - that of "discuss[ing] the possibilities of mediation" (ie. settlement) [see Ch.14, s.2 and 3: "Hearings, Orders and Enforcement: Mediated Settlements" and "Unmediated Settlements".]
(b) Pre-Hearing Conference
Board Rule 20 establishes a policy of only requiring pre-hearing conferences for hearings anticipated to last a day or more, where the conference might help shorten it.
Rule 20: Pre-Hearing Conference
Therefore the decision to hold a pre-hearing conference will be exercised by the Board on a case-by-case basis. If a pre-hearing conference is held, the Board may make procedural orders (eg. disclosure) or directions to facilitate the holding of the full hearing.
13. Motions and Interim Orders
"Motions" are traditionally used in a range of different legal proceedings as sort of mini-hearing dealing with (primarily) procedural issues before or at the hearing of the main case. For example, in civil litigation motions are used for such things as amending pleadings, summary judgments, motions to dismiss on legal grounds alone, joining and severing parties, adjournments and numerous other steps.
The Act uses the concept of the "motion" quite ambiguously, often referring to it as the authority that the Board has to almost spontaneously make procedural Orders "on its own motion". This usage is a source of uncertainty in the RTA scheme regarding the procedures to be followed (by both parties and the Board) to achieve certain procedural results.
While there is no express, specific authority in the SPPA for tribunals to adopt the use of motions for such purposes, it seems plain that the general procedural authority granted by that Act is broad enough to encompass the use of motion-type procedures, both without [SPPA s.25.0.1] - and with [SPPA s.25.1] - the making of additional "Board Rules".
SPPA s.25.0.1In addition, the Board (like any SPPA tribunal), has authority to:
A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1.
A tribunal may make rules governing the practice and procedure before it.
The rules may be of general or particular application.
To achieve these procedural changes, motions are sometimes expressly anticipated, as they are in the case of "set aside motions" in at least two RTA procedural schemes: ie. regarding "catch-up payments" available in non-payment of rent termination applications [see Ch.7], and regarding ex parte Orders to terminate and evict based on tenant's Notice of Termination or Agreement to Terminates [see Ch.4, s.3]. However they are not even mentioned in their otherwise quite natural role in party-initiated amendments of applications [see s.4(g): General Board Procedures: Amendment of Applications", above].
- "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes" [SPPA s.23]; and
- to "make interim decisions and orders" [SPPA s.16.1].
That said, as will be seen below, enough "motion"-type authority [Rule 2] is set out in the Board Rules that it is apparent that they (or something like them) are perceived of as an integral element in the RTA procedural framework, though it may yet be uncertain to which specific procedures they may be used for:
Rule 2.1(b) Motion Procedures
Members may exercise any of their powers under these Rules or under the RTA on their own initiative or at the request of a party.
The Rules do grant the presiding Board rudimentary procedural authority for motions:
Rule 2.2Such procedures are spelled out somewhat in Rule 10 ["Serving the Application or Motion & the Notice of Hearing"], though that Rule is primarily involved in setting out service procedures for initiating applications [see s.4(d): "General Application Procedures: Initiation and Service of Notice of Application and Related Documents"].
The Member may decide the procedure to be followed for an application and may make specific procedural directions or orders at any time and may impose such conditions as are appropriate and fair.
As well, the only "motion" forms issued by the Board relate to specific motion proceedings anticipated in the RTA. There is no "general" motion form.
The "motion"-applicable aspects of Rule 10 are that copies of the motion and Notice of Hearing [when required] should be served on the other parties as soon as filed with the Board, but in any event:
The usual rule is that the party bringing the motion must give 48 hours notice to the other party(ies) by any of the permitted methods of service. However, the Member may direct the party bringing the motion to give more or less notice depending on the circumstances. [R10.7]
In the event of failure of a party to serve the motion within this time frame, the Board may:
It would also appear to be open to the Board to hear motions by way of either written or electronic hearings [see Ch.14, s.4: Hearings, Orders and Enforcement: Hearings"].
- proceed, if there is no prejudice "whatsoever" to a party;
- adjourn, "to give the other party(ies) an adequate opportunity to prepare for the hearing"; or
- dismiss the motion, "if the Member finds that the party deliberately failed to serve the documents in accordance with these Rules",
and as well may:
- weigh the delay in service as "unreasonable conduct" for purposes of costs assessment [see Ch.14, s.6(d): Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Final Orders: Party and Board Costs"].
(c) Fines on Non-Compliance
Interpretation Guideline 16, quoted here, explains the Board's anticipated use of "conditional fines" in interim procedural matters, to coerce compliance:
A Member may impose a conditional fine in an interim order to encourage compliance with the RTA. For example, a Member may order a fine for each day that the landlord fails to comply with a term or condition in the interim order, such as putting an illegally evicted tenant back into possession. The interim order should state precisely what the landlord is required to do and the consequences of failing to comply. The total amount of the fine, if any, should be set out in the final order based on the relevant circumstances as discussed at the hearing."Fines" are discussed generally in Ch.14, s.6 d): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Final Orders: Administrative Fines]".
14. Adjournments and Scheduling
It is an integral aspect of any administrative tribunal regime that either the administrative or the presiding Board (or both) have procedural authority to schedule and adjourn hearings as required by their workload and principles of natural justice [SPPA s.21, Act s.183].
In most cases, parties wishing an adjournment should first seek consent from all other parties - which, if granted, must then be submitted to the Board in written form for its approval [Rule 12]. It is common practice in administrative tribunals for a copy of the requester's letter, hand-annotated as "approved" - and signed by the other party, to be filed.
Generally - the principles, practices and conditions likely to be applied by the Board in making adjournment decisions are set out extensively in Interpretation Guideline #1 and Rule 12, both of which are linked here:
Interpretation Guideline 1: Adjourning and Rescheduling Hearings
Rule 12: Rescheduling a Hearing