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The topic of evidence before any administrative tribunal is quite broad and draws heavily on the conventional law of civil evidence applied in the courts. Thankfully the law of evidence before the Landlord and Tenant Board tracks very closely with the standard evidence practices of all tribunals governed by the Statutory Powers Procedures Act (SPPA). This topic is discussed at length in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide, as linked here:
Administrative Law (Ontario)(SPPA): Ch.6: Evidence
The Board's standard form for an affidavit is linked here:
Additional evidence provisions that apply uniquely to Board hearings are discussed immediately below [sub-sections (b-d)].
That said, the Board itself does have highly unusual authority to engage in evidence-gathering activities on it's own. While usually evidence-presentation in hearings is entirely party-driven, the RTA gives the Board broad authorities and powers [discussed below in sub-sections (e-h)] of initiative to require and compel testimony and other evidence. In this sense it is much more like European-style inquisitorial courts - run by judges who mix both judicial and investigative functions.
All of these authorities are discussed below, and the Board's perspective on them is set out in Interpretation Guideline 13: "Other Powers of the Board", linked here:
Interpretation Guideline 13: Other Powers of the Board
It can however be expected that use of these broad evidence powers by the Board will be infrequent. They seem most designed for use in tenant's rights applications (especially re "repair" issues), which form only a small portion of the Board's caseload. They may also find use in a limited fashion by way of specific instruction from a presiding Board to clarify specific instances of ambiguous documentary evidence.
(b) General Interpretation of Evidence
In interpreting the evidence and making its fact-findings on an application, the Board is to be guided by the following principles [Act s.202]:
These provisions encourage and authorize the Board to give less significance in its fact-findings to artificial legal or other structurings of the parties before it, and is reminiscent of (though distinct from) the civil law concept of "piercing the corporate veil" where courts reach behind corporate structuring and locate liability on the actual 'controlling minds' involved. Necessarily this authority can only be used against landlords, as corporations cannot by their nature be "residential tenants".
- it "shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants";
- it "may disregard the outward form of a transaction or the separate corporate existence of participants".
Case Note: Drewlo Holdings Inc. v. Weber (Div Ct, 2011) (c) "Similar Fact" Evidence
In this case the tenancy was exempt from above-guideline rent increases by virtue of a categorical exemption set out in RTA s.6(2) [see Ch.10, s.6]. The landlord circulated a letter stating that the purpose of a nine percent increase was to compensate the landlord for the allegedly higher-than average damage costs that the presence of pets in units posed. The Board (upheld by the court), having regard to it's jurisdiction to ascertain the "real substance of all transactions and activities" [RTA 202], held this to be an illegal penalty charge and ordered a compensating abatement of rent. Abatement of rent was ordered as the Board accepted the characterization that “…a tenant’s reasonable enjoyment of the property…includes the expectation that they [sic] will not be made subject to premiums, penalties or other charges for otherwise lawful conduct.” The court's reasons suggest that if the landlord had simply been silent as to the reason for the increase, it likely would not have incurred this problem (though logically this is solely as a matter of not inadvertently giving the tenant evidence against it).
The Board is further encouraged in its fact-finding activities to "have regard to the pattern of activities relating to the residential complex or the rental unit." [Act s.202].
This provision is reminiscent of the evidence law concept of "similar fact" evidence (discussed briefly in the SPPA evidence link, above), which under the common law is applied in a very conservative and hesitant fashion. "Similar fact" evidence is evidence of what a party has done in past "similar" situations. Thus if a landlord has a "history" of poor (or good, for that matter) maintenance with respect to the particular unit or any other units in the "residential complex", such evidence can be relevant to the current proceeding if it also involves the issue of maintenance (and so with other fact situations). Note as well that what is included within a "residential complex" can be quite extensive [see Ch.1, s.6(d): "Fundamentals: Terminology Notes: Residential Complex"].
"Similar fact" evidence is close in meaning to that of "character evidence" - though not as broad. "Character evidence" - when it is allowed - is evidence of one's previous general moral behaviour and demeanour. It is a general principle of evidence law that "character evidence" cannot be introduced with respect to a party until the party themselves had "led" evidence of their good character (this is called "opening the door").
Act s.202 can be read then as inviting the Board to take a more liberal approach to the admissibility and weighing of such evidence - at least as it relates to "patterns of activities" in the residential complex.
(d) Members and Mediators Not Compellable Witnesses
The use of Board mediation to settle applications is discussed extensively in s.2, above.
In a provision quite consistent with normal legal practice, Board members and mediators are not compellable witnesses in any civil proceedings (including Board proceedings) - either personally or through their documents - "with respect to matters that come to his or her knowledge in the course of exercising his or her duties under this Act" [Act s.175].
Board members - like judges - are deemed to 'speak through their rulings', and mediators are given a status consistent with the civil evidence doctrine of "settlement privilege" (that the contents of settlement discussions are privileged and may not be compelled in testimony). This is consistent with general administrative tribunal practice [SPPA s.4.9].
The Board's perspective on these duties is set out in Board Rule 13.17-22, linked here:
Rule 13: Mediation by the Board
(e) Board Evidence Initiative
The Board may, "before, during or after a hearing" [see Note 1, below] [Act s.201(1)(a-c)]:
Any relevant evidence obtained by the Board from the exercise of these powers may be considered by it in its decision "provided that it first informs the parties of the additional information and gives them an opportunity to explain or refute it" [Act s.201(2)].
- "conduct any inquiry it considers necessary or authorize an employee of the Board to do so";
- "request a provincial inspector or an employee of the Board to conduct any inspection it considers necessary"; and
- "question any person, by telephone or otherwise, concerning the dispute or authorize an employee of the Board to do so".
(f) Board Initiative to Move to Amend Applications
This "new" intrusive role of the Board extends beyond mere evidence-gathering and includes the right of the Board "before, during or after a hearing" [see Note 1, below], to itself initiate a motion [see Ch.13, s.13: "General Board Procedures: Motions"] to amend an application before it. The right to initiate such motions is traditionally restricted to the parties.
While this authority does not strictly relate to evidence-gathering practices, it's inclusion in the legislation amongst these new evidence-gathering authorities strongly suggests that it is intended to be used when new Board-generated evidence dictates the need for amendments.
What constitutes "amending" an application is not specified in the legislation, but logically can include any aspects of the application contents submitted by the applicant, including: remedy sought, fact allegations, monetary amounts, parties named, etc. This interpretation is consistent with similar practices in civil litigation.
Such motions 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)]. Board Rule 16, linked here, governs the making of such amendments - though it provides little guidance as to the procedure to be used:
Rule 16: Amending Applications
(g) Evidence Directions to Parties
Further, "the Board may, before, during or after a hearing", [see Note 1, below] "permit or direct a party to file additional evidence with the Board which the Board considers necessary to make its decision" [Act s.201(1)(d)].
Failure to comply with a direction made under this authority may be sanctioned by the Board as follows [Act s.201(3)]:
The authority of a Tribunal to "permit" additional evidence is traditional and unquestioned, however the authority of a Tribunal to essentially demand it - at pain of serious prejudice to one's cases - is unusual, and perhaps unique, in a non-regulatory administrative context. That said, given the typical overburdening of such Tribunals, it is a safe prediction that these powers will rarely be used in any thorough-going way. They may find some 'on-the-spot' use in hearings by frustrated Board members attempting to winnow down verbose party "pleadings" (the written fact and legal claims made in the Notice of Application), or in attempting to assist persons with limited literacy or organizational skills.
- refusal "to consider the party's submissions and evidence respecting the matter regarding which there was a failure to comply"; or
- "if the party who has failed to comply is the applicant, dismiss all or part of the application".
(h) Taking a View
"Taking a view" is an old and little-used authority of a court or Tribunal to leave the hearing room premises and to actually visit places and see large things that it is inconvenient to bring to the hearing. With the advent of modern photography (and again the overburdening of Tribunals and courts generally) this power sees little present day use.
That said, the Board "may, before, during or after a hearing" [see Note 1], "view premises that are the subject of the hearing" [Act s.201(1)(e)], on notice to the parties so that they might join them [Act s.201(4)].
Note 1 (i) Summons
While all of these above-noted powers of 'evidence initiative' may be exercised "before, during or after" a hearing, this authority 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.
"Summons" (sometimes called "subpoenas"), are used to compel the oral testimony of, and production of documents by, witnesses. General summons practices for administrative tribunals are set out at this Isthatlegal.ca Administrative Law (Ontario)(SPPA) link [see s.9: "Witnesses"]:
Administrative Law (Ontario)(SPPA): Ch.6, s.9: Evidence: Witnesses
The Board has created a specific rule reflecting its own practices in issuing summons (written requests explaining why they are required), linked here:
Rule 23: Requiring a Witness to Attend a Hearing
Parties must justify their request for summons to the Board:
Request for the Board to Issue a Summons
Witness and other fees associated with summons are linked here:
(j) Evidence in French and Other Languages
Regarding conducting hearings in French, see Ch.13, s.4(c): "Pre-Hearing Procedures: General Application Procedures: French Language Services". Interpretation is not available in any languages except English to or from French. Parties calling witnesses who will testify in other languages must bring their own qualified interpreters.
No document translation services are available from the Board in any languages [Rule 7], again parties wishing to adduce documents in any language other than the language of the proceedings must obtain their own qualified translations.
6. Decisions, Reasons and Final Orders
"Decisions", "Reasons" and "Orders" are obviously closely related, and are usually received by the parties at the same time, and in the same document: ie. the "Notice of Decision" (discussed below). However - legally - the three things are distinct, and it can be important to recognize the differences between them as the terms are often used interchangeably (and therefore inaccurately).
This section addresses the required contents and formalities involved with Decisions and Reasons, and the general elements and structuring of Orders -including legal costs, fines, interest and instalments payments. The issue of when an Order is "final", thus triggering the availability of any rights of review and/or appeal, is covered in (d) below.
Also discussed in this chapter is the closely-related topic of enforcement of Board Orders, the role of the sheriff's office and the court enforcement process - and the important "stay" provisions which can halt the enforcement of an Order pending the conclusion of review, appeal or similar proceedings.
General SPPA law applicable to Decisions, Reasons and Orders is discussed at this link [note however that the service of Decision provisions explained there have been overriden by RTA s.208(2); see (e) "Notice of Decision", below]:
Administrative Law (Ontario)(SPPA): Ch. 7: Orders
Case Note: Urbanowicz v Transglobe (Div Ct, 2010) (b) Decisions
Where a tenant withheld rent as a tactic over a cockroach dispute but did not expressly apply for an abatement of rent, the Board's conclusion that it had no jurisdiction to consider a rent abatement was an error of law. The circumstances of the rent withholding made a rent abatement an obvious issue and the tenant's pleading for "any other costs or orders that the Board may deem appropriate" ..." were adequate to give the Board rent abatement jurisdiction.
This case is authority for the principle that strict pleading principles application in the higher courts will not be applied before the Board. However natural justice would require that any opposing party who might be surprised by such issues should be notified of them at the earlier oppourtunity.
Conceptually, a "Decision" is the Board's conclusory statement on the primary issue alleged by the applicant (eg: "the tenant substantially interfered with the reasonable enjoyment" of the premises by other tenants). A "Decision" is thus the Board's overall conclusion: the culminating result of it's fact-findings based on the evidence heard, and of it's logical and legal reasoning. The "Decision" in any given application will be defined by what is alleged in the Application, and will typically be either an affirmation or a negation of those allegations.
This meaning of the term "Decision" however can get confused in light of other, related uses of the term in actual residential tenancy practice. That is, the Board is required by law to give a written "Decision" (and Order, see below) on an Application after it is heard [SPPA s.17(1); RTA s.208(1)]. Here what is often referred to as the "Decision" [or "Notice of Decision"] is in fact a written document containing both the "Decision" (as I have described it here) and the Orders issued by the Board as well.
If past practice of similar Tribunals and courts is any guide, it will be the usual practice of the Board to orally state its Decision and/or Order immediately after hearing final submissions of the parties (or after a short adjournment), with written Decision and/or Order to follow later (in a "Notice of Decision").
Note however that it is the written form which is considered 'official' for purposes of enforceability and appeal.
Any significant delay in issuing a Decision and/or Order is called "reserving" the decision. This is usually the result of the member's workload, their desire to think about the case further - or both.
The detailed fact-findings, logical reasoning and legal reasoning that contribute to the making of the "Decision" are the Board's "Reasons for Decision" - or more commonly: "Reasons". Reasons should explain the treatment of the presented evidence, findings of fact based on that evidence, and the interaction of the facts with the law applicable to the case.
. Reasons Issued on Request of a Party
"Reasons" will not be automatically issued by the Board. It is when they are requested by a party that they will follow later in writing [SPPA s.17(1); RTA s.208(1)]. This is typically done when the party anticipates a need to review or appeal the decision [see Ch.15: "Reviews and Court Appeals"].
Reasons may be requested orally at the hearing by a party, or otherwise in writing within 30 days after the issuance of the Order in the case (ie. the "Notice of Decision") [R26.2].
. Reasons Issued at Discretion of Board
There are a several circumstances where the Board may or will issue Reasons even without being so requested by a party. These include [Rule 26]:
Where Reasons are required for purposes of Review or Appeal they shall be drafted without regard to the content of the review or appeal arguments.
- where the presiding member departs from an Interpretation Guideline [R26.3] (to explain the variation);
- a Review is requested regarding the Order in question [see Ch.15: "Reviews and Court Appeals] and the member on Review considers Reasons necessary [R26.4];
- a court appeal is filed regarding the Order in question [see Ch.15: "Reviews and Court Appeals] and the Court or a party considers Reasons necessary [R26.5].
Case Note: Khanna v Buchanan (Div Ct, 2009) (d) Final Orders
Failure of a Board to address key evidence from a party, and failure to set out the evidence and calculation grounding the granting of a rent abatement are appealable errors of law justifying the matter being sent back to the Board for re-hearing. Reasons must be adequate to allow appellate review.
"Final" Orders are distinguished from "interim Orders" [see Ch.13, s.13: "General Board Procedures: Motions and Interim Orders"]. Interim Orders tend to relate to procedural matters while final Orders resolve the entire matter before the Board.
The distinction is important as (generally) appeal rights only commence when a "final order" is issued. Parties are generally expected to comply with interim Orders (which are almost always procedural) and only raise any problems with them at an appeal of the "final" Order.
As a procedural matter, the issuance of such final "Orders" is combined with the issuance of the "Decision" in the case [see above], and the terms are sometimes unfortunately intermingled.
"Orders" are what the Board provides as a practical remedy in response to the resolution of the Application - if it believes that one is called for at all (a favourable Decision does not automatically entitles the applicant to a favourable Order). The topic of "Orders" relates closely to that of remedial Jurisdiction, which readers should review as well [see Ch.13, s.3(g): "General Board Procedures: Board Jurisdiction: Remedies"].
As noted above, after an Application has been heard, the Board is legally required to issue a written Decision and Order [SPPA s.17(1)].
The typical orders of the Board are of course such things as termination of tenancy, eviction a tenant, repairs by landlords, and monetary compensation between them [Act s.205(1)]. The availability of these various orders are mentioned throughout the program in relation to the various forms of landlord and tenant applications that are available. They are also discussed in more detail above [s.3(g) "Jurisdiction: Remedies" and Ch.16: "Civil Remedies"].
The Board also has broad authority to add conditions to its orders as it "considers fair in the circumstances." [Act s.204(1)], and to order such additional relief as orders for the payment of "legal costs" between the parties, fines against parties, post-judgment interest, instalment payments, deduction from rent, etc. These topics are discussed below.
. Conditions on Orders
There are several ways in which the Board is authorized to place conditions on Orders:
i. Ex Parte Application Conditions [Act s.78] . Administrative Fines
The first and primary one for tenants is that the Board may make the Order conditional and include a further condition that breach (of that condition) enables the landlord to invoke the s.78 ex parte application process after breach, just as can be done with Board-mediated settlements [see Ch.8, s.3: "Other Termination Procedures: Ex Parte Applications on Breach of Mediated Settlement or Conditional Orders"].
Imposition of the s.78 procedures usually involve serious loss of tenant protections under the Act, and the subject should be reviewed carefully.
ii. General Conditions Jurisdiction
There is a general Board authority to place conditions on its Orders (without necessarily invoking the s.78 procedures) [Act s.204(1)] that it "considers fair in the circumstances".
Case Note: Beboning v Wigwamen Inc (Div Ct, 2008) iii. Delayed Enforcement of Evictions
The court upheld the Board's authority under RTA s.204 to issue an order conditional on the tenant attending an "alcohol withdrawal program".
There is also an express provision [Act s.83(1)(b)] authorizing the Board to delay the enforceability of eviction orders as its discretion [see Ch.9, s.5(b): "Termination Defences: Positive Defences: "Relief from Forfeiture"]. While the previous legislation imposed a standard 10-day delay on some such Orders, now any delay is entirely discretionary to the Board - though generally an 11-day delay in enforcement is imposed on most eviction orders.
iv. Instalments for Retroactive Above-Guideline Rent Increases
Where the Board has authority to make any rent increase above the guideline three month's or more retroactively (ie. effective three months or more before the Order), then it may spread any retroactive 'make-up payments' over a maximum of 12 months [Act s.205(2)].
v. Rent Set-Off of Money Orders
Where the Board orders payment of monetary compensation from a landlord to a current tenant, it may also order that - in the event of non-payment by the set due date - that the tenant may deduct fixed amounts from rent payments for a specified number of rental periods [Act s.207(5)]. Such an order does not however restrict the right of the tenant to otherwise collect on the order [Act s.207(6); see "Enforcement", below].
There are several instances where the Board is authorized to make ancillary Orders within applications for the imposition of administrative fines on landlords, to a maximum of $10,000. These are distinct from any court-ordered fines resulting from prosecutions [see Ch.17: "Offences"].
Fines may be ordered (with or without being requested by the applicant) at the discretion of the Board, and after the hearing of submissions by the parties on the issue [IG 16].
Applications which can involve such fines include:
Failure of a party to comply with Board Orders requiring payment of a fine, fee or costs to another party may also justify the Board refusing further application materials from that party [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].
- tenant's rights applications [see Ch.3, s.5: "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications"] under Act s.31;
Interpretation Guideline 6: "Tenant's Rights", sets out the Board's criteria as to when administrative fines are merited in tenant's rights applications [see Ch.3, s.5]:
An administrative fine is a remedy to be used by the Board to encourage compliance with the RTA and to deter landlords, superintendents and agents from engaging in similar actions in the future. This remedy is appropriate in serious cases where the landlord has shown a blatant disregard for the RTA and other remedies will not provide adequate deterrence and compliance.
- abandoned property violations [see Ch.8, s.4: "Other Termination Procedures: Tenant Property"] under Act s.41(6)4;
- bad faith terminations [see Ch.5, s.4: "Regular Landlord Terminations: Former Tenant's Application Where Bad Faith Termination etc"] under Act s.57(3)3;
- Failure to Provide Rent Increase Restriction Notice to New Tenant [see Ch.12, s.6: "Other Rent Proceedings: "Serious Breach" Rent Increase Restriction Orders and New Tenants"] under Act s.115(3).
Interpretation Guideline 16, linked here, sets out the Board's position as to when - generally - such administrative fines are merited ("blatant disregard"):
Interpretation Guideline 16: Administrative Fines
Interpretation Guideline 16, quoted here, explains the Board's anticipated use of "conditional fines" in interim procedural matters, to encourage 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. . Party and "Board" Costs
"Costs" refers to the jurisdiction of a tribunal or court to order that a party to a proceedings pay all (rarely) or part (more often) of another party's legal "costs" - which generally include Board filing fees, disbursements and legal representation fees (lawyers and paralegals).
All parties participating in the application hearing will be given an oppourtunity to make submissions on the issue of costs at the end of the hearing. In civil litigation this is done after the primary ruling in the case is given, so that parties can expose any unaccepted settlement offers at that time (as a way of demonstrating "reasonableness"). Parties should inquire of the Board they are before as to its inclination on this issue.
While recent amendments to the Statutory Powers Procedures Act (SPPA), have given tribunals (including the Board) express authority to make rules for the awarding of "costs", the Board's primary costs authority is derived from s.204(2-4) of the RTA, which is paramount due an express override of the SPPA provisions [RTA s.204(5)].
Rule 27: Ordering Costs to a Party or Board Costs sets out:
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 [Rule 10.8].
- general approval for awarding the Board application fee to the successful party in most cases;
- that where a party has engaged in "unreasonable conduct", legal fees may be be awarded - to the extent of such conduct - at a maximum hourly rate of $100 for lawyers or paid agents - and disbursements (out-of-pocket expenses) to a maximum of $700;
- that any cost awards for the Board's costs shall not exceed $100/hour, to a maximum of $700.
Interpretation Guideline 3: Costs, elaborates on these principles, setting out some exceptions and additional criteria relating to behaviour. In particular, the IG states:
In most cases, costs should not be allowed for the other expenses incurred by the successful party such as travel, expert reports, etc.In a significant variation from normal costs practices (ie. in other tribunals and courts), the Board has authority to order that "it's (ie. the Board's) own costs of a proceeding be paid by a party or a party's paid representative." [Act s.204(3)].
As to the interpretation of this provision for the payment of "Board costs", the IG
When a party or a paid representative acts improperly or unreasonably in a proceeding, the Board may order the party or their paid representative to pay to the Board [emphasis added] an amount that will partly cover the expenses that the Board has incurred as a result of that conduct.Failure of a party to comply with Board Orders requiring payment of a fine, fee or costs to another party may justify the Board refusing further application materials from that party [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].
This power, however, should be used sparingly. It was not the intent of the Legislature that this power should ever be used to obtain cost recovery for salaries, administration or other expenses of the Board.
In those rare situations in which a party or their representative is responsible for unreasonable conduct, this power allows the Board to accomplish two objectives:
. Recover some of the taxpayers' monies which funded the proceedings, and,
. Discourage inappropriate practices and conduct by parties and their representatives.
. Post-Judgment Interest
"Post-judgment interest" is interest accruing on the principle amount of a money Order that remains unpaid after a reasonable, standard period (commonly 30 days) has passed to pay it. There is a slight superficial conflict between two legal legislative sources on the issue of post-judgment interest.
Firstly, the Statutory Powers Procedures Act (SPPA) requires that "(a) tribunal that makes an order for the payment of money shall [emphasis added] set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated" [SPPA s.17(2)].
On the other hand, the RTA states that "(t)he Board may [emphasis added] set a date on which payment of money ordered by the Board must be made and interest shall accrue on money owing only after that date at the post-judgment interest rate under section 127 of the Courts of Justice Act". [Act s.207(7)].
While there is no express RTA override of SPPA s.17 (such as would be required to avoid it under the SPPA s.32 override provision), they may be read compatibly as follows:
Post-Judgment Interest Rates (be careful to distinguish post-judgment rate from pre-judgment rates at this link)
- the Board must add post-judgment interest to money orders;
- the Board must set a date at which interest starts to accrue (a "due date"), but has discretion as to when this date is; and
- the rate of interest shall be as per the court's rate (see below).
Essentially then, post-judgment interest is a "right" on any money Order, though the date at which interest starts to accrue is at the discretion of the Board.
The calculation of post-judgment interest is usually a simple arithmetic task. For purposes of enforcement, the court enforcement forms will require that the calculation be set out as per principal, interest rates, time elapsed, payments made and total interest owing.
(e) Service of Notice of Decision
A "Notice of Decision" contains the written Decision, Reasons (if any are issued) and Order [SPPA s.17(1), Act s.208(1)] (all of which are discussed above) which constitute the Board's final resolution of an application.
Just as with the service of a Notice of Hearing, the service of a Notice of Decision is of primary importance to the "natural justice" interests of any party effected by it. Besides informing the parties of their rights and duties pursuant to a hearing, the service of a "final" (not interim) Notice of Decision triggers the "running" of any review and appeal limitation periods [see Ch.15].
Legally, the standard service provisions set out in the SPPA [s.18], which normally govern the service of the Notice of Decision by tribunals, are overridden [RTA s.208(2)] and replaced by the standard RTA service provisions [see Ch.13, s.8(b): General Board Procedures: Service and Filing of Documents: Service on Parties"] [these are personal service and mail: RTA s.191].
As well [under RTA s.208(1)] - this service duty is only owed by the Board to parties "who participated in the proceeding, or the person who represented the party".
That said, the Board's practice is to serve a certified copy of the Notice of Decision by regular mail on all parties - regardless of their participation [Rule 26.1]. Given the importance of the document - and the number of instances that a party may not otherwise know of a legal proceeding against them (eg. s.78 ex parte applications after breach of mediated settlements or conditional orders) - this is a highly desirable practice in terms of natural justice.
Recall of course that mail service is "deemed" to be received on the fifth day after mailing [Act s.191(3)].
(f) Amending Orders
The SPPA grants all of it's tribunals general authority to amend Orders for typographical errors, errors of calculation and other minor uncontentious changes [SPPA s.21.1]. Note that this authority is distinct from the authority of the Board to "review" more serious (alleged) "errors" in it's Orders [see Ch.15: "Reviews and Court Appeals"].
This amendment authority is discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide at this link:
Administrative Law (Ontario)(SPPA): Ch.7, s.5: Orders: Variation of Orders
Board practice for requesting and making such amendments is set out in Board Rule 28 and Interpretation Guideline 15, linked here:
Rule 28: Amending an Order
Interpretation Guideline 15: Amending an Order
The Board's standard form for requesting an Amendment to an Order is linked here:
Request to Amend an Order
Procedures for the issuance and filing of "stays" (suspensions) of Orders pending the outcome of Requests to Amend are discussed in s.7(f) ["Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement: Stays"], below.
Note that mediators will not mediate agreements intended to modify an order of the Board, such as an agreement that imposes conditions on the enforceability of the order. A Board order is a final disposition of an application and as such, these types of agreements, referred to as "side agreements" will not be mediated.
7. Enforcement and Stays of Enforcement
Applicants unfamiliar with legal proceedings are sometimes under the unfortunate illusion that the issuance of a legal order against a respondent will magically result in the vindication of the applicant's legal rights. In reality, a successful Order is often only another (albeit essential) stage in the process.
Some enforcement issues are simple - for example: Orders "terminating" tenancies are in the nature of legal declarations ending tenancy agreements, and need no additional enforcement. On the other hand, eviction Orders require definite physical acts to be truly "satisfied", and involve using the services of the local sheriff's office. Alternatively, enforcing money orders involves filing Board Orders with the appropriate court and using any of it's several enforcement procedures. There are other examples.
Basic issues of enforcement of administrative tribunal Orders are discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide at this link:
Administrative Law (Ontario)(SPPA): Ch.8: Enforcement
As well, the availability of an array of procedures for setting aside, amending, reviewing and appealing Orders necessitates additional varied procedures to block the enforceability of the subject Order pending the outcome of the variation process. These are generally known as "stays", or temporary suspensions of the enforceability of the subject Order.
The "enforcement" of Orders is as varied a topic as the types of Orders that the Board can issue, and can involve a variety of institutions. These are considered in turn below.
Any party (typically a landlord) seeking to re-possess rented premises will almost always seek orders both "terminating a tenancy" and "evicting the tenant". It is important to understand why these two separate orders are usually required, when on first glance what is more fundamentally being sought is the eviction.
First note that, as was discussed earlier [Ch.4, s.2: "Termination Fundamentals: Notices of Termination"], that a Board Order "terminating" a tenancy can be viewed as the Board's "confirmation" of the termination (and "date of termination") set out in the Notice of Termination which commenced the whole process. Second note that it is not the "tenant" who is being terminated, it is the "tenancy" or the "tenancy agreement".
By way of illustration, recall that when a landlord is making an application to evict an "overholding sub-tenant" from premises [see Ch.8, s.2: "Other Termination Procedures: Application to Evict an Overholding Sub-tenant"], they do not have to get an Order "terminating" the tenancy as well - because there was no tenancy between those parties (though there was one - since expired - between the main tenant and landlord).
These two points highlight the nature of a Board order of "termination". It is essentially what is known in civil law as a "declaration" - here a "declaration" that the tenancy is legally at an end. It is equivalent of A going to court in a contract dispute to get the court to confirm that, as of such-and-such a date, their contract with B is ended (rescission) and that from that point forward A owes no further contractual obligations to B. While such a declaration is not something that you would file with the sheriff for any sort of collection or "execution", it is a highly useful legal determination clarifying the respective duties of the parties. It is also a logical thing to require a landlord to obtain when they are seeking re-possession of the subject rental unit.
As there is nothing to enforce from a termination, there is - technically - no need for a "stay" to block it pending the outcome of any review or appeal proceedings. If it is going to be reversed this will be done in the course of the review or appeal.
An eviction Order on the other hand is a more concrete and enforceable thing. Formerly known as a "writ of possession", it is still legally enforced under that name [Act s.85].
Eviction orders are enforced (also called "executed") by being filed with the sheriff's office [Execution Act, s.21], and paying the required fees.
Sheriff policies and practices are largely a function of the particular caseload, policies and discretion of the local sheriff's office. Tenants facing eviction are best advised to communicate closely with those offices as soon as they become aware that the eviction process is being initiated (ie. right after the Board issues an eviction Order).
Recall as well that the enforceability of eviction orders can be delayed at the discretion of the Board [see s.6(d): "Decisions, Reasons and Final Orders: Final Orders", above]. Under the previous legislation, the Tenant Protection Act, default orders (where the tenant failed to file a "dispute" to the landlord's application) were unenforceable until 10 days after the Order was issued [TPA s.83(2)]. That law has changed, largely because default applications have been abolished. While a Board member hearing an RTA termination and eviction proceeding has discretion to delay the enforceability of an eviction Order, there is no fixed rule as to how long - or even if - the Order will be delayed.
Recall as well that some eviction orders (based on serious issues such as drug-related illegal acts and safety concerns) may be subject to special Board "requests" to be expedited [see Ch.6: "Early Termination for Cause" - ss.2(d), 3(c), 4(d), and 5(d)].
Eviction orders "expire" six months after becoming effective if they are not filed for enforcement within that time [Act s.81]. Landlords seeking to obtain a "fresh" eviction Order would have to rely on new grounds to terminate and evict, as recourse to the previous Order would be barred by the principle of res judicata (causes of action already litigated may not be re-litigated).
(d) Monetary Compensation
Unpaid monetary compensation Orders may be enforced by filing a Board-certified copy of the Order with the local Small Claims Court (Orders of $25,000 or less), and using the available enforcement procedures of that court [SPPA s.19(1)].
These are explained at this Isthatlegal.ca link:
Small Claims Court: Collection
In the rare case where an Order has a monetary value greater than $25,000 it may be filed for enforcement in the Superior Court of Justice. Procedures for such enforcements are not covered in this program but the applicable Court Rules are linked here:
Rules of Civil Procedure, R60: Enforcement
The Board must be served with notice that such a court filing has taken place within 10 days after filing [SPPA s.19(2)].
While the landlord's common law right of "distress" (seizure of property against tenant debts owing) is abolished [Act s.40], there is a limited ability of the landlord to apply the realized sale value of left or abandoned chattel property against arrears owing them [see Ch.8, s.4: "Other Termination Procedures: Tenant Property"].
(e) Other Enforceability Issues
Some other Orders are internally enforced within the Board process itself.
Consider "administrative fines" as an example [see c.6(d): "Decisions, Reasons and Final Orders: Final Orders: Administrative Fines", above]. Failure of a party to comply with Board Orders requiring payment of a fine, fee or "Board" costs may justify the Board refusing further application materials from that party [see Ch.13, s.10(e): "General Board Procedures: Summary Dismissal: Non-Payment of Fine, Fees or Costs"].
Further, Board Orders restricting rent increases [see Ch.3, s.5(c): "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications: Serious Breach Orders"] are 'naturally' enforceable within the normal L&T relationship, backed up by the Board's determination of what the legal rent is (or isn't).
As noted above, "stays" are (usually) temporary suspensions of Board Orders put in place to preserve the status quo (ie. to prevent enforceability) during the resolution of any of several processes which are available to 'change' an order. These different processes, whose stay provisions are considered below in turn, can include: Set Aside motions, Requests to Amend Orders, Review of Orders and Court Appeals.
. Set Aside Motions and Related
A "set aside" motion is typically used to reverse a termination and eviction Order that has been achieved under an ex parte (without notice) application. There are three types of situations under the RTA where set aside motions or similar proceedings may involve the need for a stay:
Similar filings may be conducted to end any money judgment enforcement through the appropriate court enforcement office (almost always Small Claims Court), if required - though this is far less common practice as enforcement of money judgments is a much slower process, rarely calling for the urgency of a stay.
- Ex parte applications resulting from alleged breach of mediated settlement or conditional order under Act s.78 [see Ch.8, s.3].
The filing of a motion to set aside an Order of termination and eviction resulting from an ex parte application under s.78 stays the Order being reviewed [Act s.78(10)]. It is the responsibility of the tenant to file "a copy of the motion and Notice of Hearing" with the sheriff's office [Rule 30.4] to make sure that they are aware of the stay.
- Catch-up payments to avoid termination and eviction for non-payment of rent made after an eviction Order becomes enforceable [see Ch.7: "Non-Payment of Rent Termination"].
Terminations for non-payment of rent may generally be avoided by paying the arrears of rent plus some additional accruing charges [see Ch.7].
Where a tenant makes such a "catch-up payment" before an eviction Order has become enforceable the Board staff is required to issue to the tenant a Notice Voiding Eviction Order [Act s.74(5)].
Where a tenant makes a "catch-up payment" after an eviction Order has become enforceable they must also commence a set aside motion to the Board. Upon the filing of such a motion the Order is stayed pending resolution of the motion [Act s.74(13)], and if the motion upholds the stay the Board staff is required to issue a Notice Voiding Eviction Order to the tenant [Act s.74(16)].
The "stays" mentioned here will not be communicated to or filed with the sheriff's office by the Board (which is my opinion is a remarkable piece of administrative inefficiency and public disservice). Where a tenant is filing such a set aside motion it is their responsibility to file "a copy of the motion and Notice of Hearing" with the sheriff's office to prevent enforcement [Rule 30.1]. Similarly, it is the responsibility of the tenant receiving a Notice Voiding an Eviction Order to file it with the sheriff's office. Obviously, such acts should be done immediately after the necessary documentation is obtained.
- Terminations based on tenant's Notice of Termination or Agreement to Terminate [see Ch.4, s.3] under Act s.77.
The filing of a motion to set aside an Order of termination and eviction resulting from an ex parte application under s.77 stays the Order being reviewed [Act s.77(7)].
It is the responsibility of the tenant to file "a copy of the motion and Notice of Hearing" with the sheriff's office [Rule 30.4] to make sure that they are aware of the stay.
Board Rule 30, linked below, sets out the Board's procedures on stays made in relation to motions to set aside:
Rule 30: Order Void or Stayed
. Amendments to Orders
The procedure for correcting typographical errors, errors of calculation and other minor uncontentious changes in Orders is discussed in s.6(f) above. In some cases where this is being done, it may be necessary to obtain a stay to prevent enforcement of the Order on its existing (pre-change) terms.
The procedures for requesting such amendments, or for the granting of stays at the Board's own initiative, are set out in the Rule and Interpretation Guideline links at s.6(f) above. Such stays will be issued in the form of an interim Order of the Board.
As always with stays, it is the responsibility of the tenant to file the stay [here an "interim order"] with the sheriff's office (or, for money Orders, the court enforcement office) to prevent it being enforced.
Board Rule 30, linked above, sets out the Board's procedures on stays made in relation to amendments to Orders.
Procedures for commencing a "Review" of an Order are covered in Ch.15: "Reviews and Court Appeals".
Thess procedures include provisions for written requests for a "stay" of the subject Order pending the outcome of the Review [Rule 29.7]. A party seeking a stay must show prejudice (harm) to their situation if no stay is issued pending the outcome of the Review (in an eviction case the prejudice is obvious). Stays may be lifted at anytime by the Board without hearing [R29.12]. As well, in order to conduct a Review, the Board may lift any stay brought by operation of law as the result of a Court Appeal being filed [SPPA s.25(1), Rule 29.11] [see "Court Appeals", below].
As always with stays, it is the responsibility of the tenant to file the stay [here an "interim order"] with the sheriff's office (or, for money Orders, the court enforcement office) to prevent it being enforced. The Board may require, as a condition of granting a stay, that the respondent tenant pay monies to the Board as security in case of the upholding of the original Order.
If the Review is dismissed, the Board shall void any order it made regarding stays.
. Court Appeals
A court appeal from an administrative tribunal Order results in an automatic stay of the subject Order [see Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial Review], subject to the court's (or the board's) authority to lift them [SPPA s.25(1)].
Note that the Board takes the view that the existence of a court stay prevents it from conducting a "Review" of the subject Order, which can lead to complications when both procedures are being conducted simultaneously [see R29.6 for procedures dealing with this]. As such, in order to conduct a Review, the Board may lift any stay brought about by a Court Appeal [Rule 29.11].
As always with stays, it is the responsibility of the tenant to file the stay [here a Court "Certificate of Stay"] with the sheriff's office (or, for money Orders, the court enforcement office) to prevent the Board's Order being enforced.
. Judicial Reviews
"Judicial reviews" are court proceedings used where statutory court appeals (as above) are unavailable [see Ch.15: "Reviews and Court Appeals"].
While stays are not automatically available on the filing of an Application for Judicial Review, they may be requested from the court on motion. The procedures for this are beyond the scope of this program. Unlike the situation with Appeals (above), the Board does not appear to have jurisdiction to lift a stay imposed in judicial review proceedings in order to deal with any Board Reviews (only) [SPPA s.25(1)(b)].
As always with stays, it is the responsibility of the tenant to file the stay [here a Court "Certificate of Stay"] with the sheriff's office (or, for money Orders, the court enforcement office) to prevent it being enforced.