Unresolved landlord-tenant conflicts causing hardship for thousands: Ontario ombudsman

Law360 Canada (May 11, 2023, 9:31 AM EDT) -- Ontario Ombudsman Paul Dubé slammed the provincial Landlord and Tenant Board (LTB) for allowing a buildup of thousands of unresolved applications from both tenants and landlords.

“Over the past few years, the Board has proven itself unequipped for the task of reducing its extraordinary backlog of applications. More importantly, those applications represent tens of thousands of Ontarians suffering hardship caused by the Board’s inability to provide timely service,” wrote Dubé in his recently released report, Administrative Justice Delayed, Fairness Denied.

The initial signs of crisis were noticed shortly after the 2018 provincial election, when the number of board adjudicators plummeted, significantly affecting its ability to hear applications. “By the fall of 2019, the Board had spiralled into a moribund state as it grappled with an increasing backlog of applications awaiting resolution,” wrote Dubé.

The COVID-19 pandemic made the situation worse, nearly doubling a backlog of more than 20,000 applications in early 2020 to about 38,000 today. “Measures introduced to address the consequences of the pandemic, including the closure of the Board’s physical offices, the move to telephone and later virtual hearings, and a moratorium on evictions, all impeded its efforts to remedy the situation,” said the report.

Dubé issued 61 recommendations to try and remedy a litany of problems.

“My investigation … identified many areas where practices were deficient, including recruitment and appointment of members, application screening, scheduling and case triage, managing adjournments, identification and processing of urgent cases, tracking of the expiration of member terms, order issuance, monitoring of outstanding orders and mediations, and identification and processing of cases requiring services in French,” wrote Dubé.

The report found tenants had to wait extremely long times for the tribunal to hear cases in which they had endured harassment, unsafe living conditions and improper attempts at eviction. Small landlords, including some who had rented out space in their own homes, had complaints about tenants who had subjected them to abuse, including criminal conduct, that they were unable to evict. Some were facing financial ruin and serious health challenges.

“What was most disturbing about this was the hardship the delays caused for people on both sides of the landlord-tenant relationship. The stories they told our investigators about the excruciating waits they endured were very compelling,” Dubé told Law360 Canada.

For example, a 74-year-old landlord, who was a pensioner, had applied in December 2019 to end a woman’s tenancy because of serious safety concerns, including having been threatened with a knife. “Despite the egregious situation, the Board did not hear the case for a full year, and the order requiring the tenant to vacate was not issued until January 2021,” said the report.

In another instance, a tenant had only made two payments since August 2019. When an eviction order was finally issued in March 2022, the tenant’s rental arrears had surpassed $36,000.

“As of February 2023, landlord applications were generally being scheduled for hearing within six to nine months of receipt, and tenant applications could take up to two years to be scheduled,” wrote Dubé. 

“Contrary to the view of some people that every landlord is a big bad horrible corporation, the reality is that most of the people moving before that tribunal tend to be small landlord individuals who own one [or] two investment properties,” said Darryl Singer, head of commercial and civil litigation and co-chair of the class action and mass tort group with Diamond & Diamond Lawyers in Toronto. “Those people are already being squeezed by things like falling equity in their existing investment, [and] increased mortgage rates. Legally they’re not allowed to raise the rent by the amount their mortgage increases.”

Furthermore, in some cases landlords are being squeezed by a tenant who isn’t paying, and so they are forced to wait … while the tenant is basically living there for free. Ultimately the landlord will get a judgment, but they can’t enforce it because tenants are typically not people with significant assets or income to go after, he added.

Outdated technology was also identified as a key contributing factor to delays and backlogs, including instances where completed applications uploaded via the portal failed to save, as well as system scheduling failures, among other glitches.

After the board moved to virtual hearings during the pandemic, other technology issues arose. “We heard from tenants, legal clinics and others who were concerned about the sometimes insurmountable challenges many tenants experienced in accessing online hearings. Many tenants do not have access to computers or phones,” said the report.

Complainants and members also described the virtual hearing process as chaotic, citing breakdowns such as lost audio connections, and receiving wrong links to join hearings. 

The report noted that the board cannot function effectively without enough members available to hear applications and issue decisions and orders. Included among the dozens of recommendations was one that the Ontario government amend the provincial Residential Tenancies Act to provide for an extension of member terms before and after a provincial election to ensure there are enough members available to carry out its functions.

Douglas Levitt, a senior partner with Horlick Levitt Di Lella LLP in Toronto, called the ombudsman’s report “very comprehensive,” and said that it did a very good job of identifying systemic problems affecting the LTB.

“My office does a tremendous amount of work at the Landlord and Tenant Board, and has been doing that for decades. And so the report is not in the slightest shocking to me,” he said, noting that it confirmed what practitioners already knew — that the delays are long, and having a significant impact on Ontarians.

The report identifies what went wrong in considerable detail, listing numerous examples of landlords and tenants who have been let down by the failure of the LTB to process and resolve applications in a timely manner, said David Lyman, a partner with Dickie & Lyman Lawyers LLP in Ottawa.

“The recommendations are good. Sufficient resourcing and staffing, and effective organization are the keys to better service and timeliness,” said Lyman. While the recommendations put a lot of focus on recruiting, training and maintaining a sufficient cadre of adjudicators, there should also be more attention paid to ensuring sufficient support staff, he added.

Levitt said the 61 recommendations made by the ombudsman were solid and take “an initial and meaningful step at addressing the backlogs that are caused by these systemic issues in the various processes at the board.”

He expressed hope the recommendations will be implemented quickly and prove successful for all stakeholders, and that “eventually we’ll have a board that is attending to these applications with the alacrity that it requires.”

Singer said that in order for change to occur, “there is a political will that has to come from the Attorney General’s Office. If it doesn’t the system is going to continue to stagnate,” he warned.

Dubé urged the government of Ontario, the Ministry of the Attorney General, Tribunals Ontario and the LTB to work together to develop and implement a strategy for reducing the backlog as soon as possible.

Andrew Kennedy, a spokesperson for Ontario’s Ministry of the Attorney General, said that in April 2023 the government announced $6.5 million in funding for 40 new adjudicators to double that number, and five new staff at LTB.

That is in addition to $12 million in Tribunals Ontario funding over three years announced in the 2023 budget, including $4.7 million allocated this year for the LTB to hire more support staff and expand hearing hours, he added.

“We are also taking action with improved technology, investing $28.5 million in a new case management system for Tribunals Ontario. We will continue to work with Tribunals Ontario to ensure that the LTB is delivering effective dispute resolutions services,” said Kennedy.

Janet Deline, a spokesperson for Tribunals Ontario, told Law360 Canada that Tribunals Ontario appreciates the work the Ombudsman’s Office did in conducting a comprehensive review of the LTB and recommending areas for improvement.

“We are currently reviewing the recommendations carefully as they can help inform our ongoing efforts to improve service standards at the LTB. We recognize current processing times at the LTB are longer than we wish them to be, and we understand the impact that delays have on those who access our services,” she said.

Since the COVID-19 moratorium, the LTB has taken great strides to improve its service standards and modernize its operations to provide more timely and effective service to its users, said Deline.

“Many of the report’s recommendations are being addressed. We are confident that significant inroads into the backlog will be made this fiscal year,” she added.

Dubé said he was optimistic that improvements are being undertaken to try and address the problems outlined in his report.

“Both Tribunals Ontario and the Ministry agreed to my recommendations and committed to providing me with detailed updates on their progress in implementing them. The government’s recent announcement of an infusion of $6.5 million to hire 45 additional full-time adjudicators and support staff for the Board is particularly promising — provided that it follows through on these commitments in a timely manner,” he elaborated.

“As always in such an investigation, my team will monitor the status of the recommendations and the updates we receive from Tribunals Ontario and the Ministry — and I will report publicly on them in my forthcoming Annual Reports,” Dubé added.

Correction: This article has been updated after an incorrect photo was inadvertently used.