People get used to doing what they’ve always done.  After a while, they can’t fathom doing that thing any other way.  Judges and adjudicators are no different, and perhaps are more susceptible to the condition as they work in a vacuum without feedback or supervision. 

Some members at the LTB are in a shocking state of repetitive conduct that belies any common sense.  Two examples are striking and deserve consideration by the Chair.

The Residential Tenancies Act requires that the Board consider all the circumstances prior to ending a tenancy, and permits the Board Member to deny or delay termination of the tenancy after considering those circumstances, if they believe it is not unfair to do so.  That’s the law.

When the respondent tenant attends a hearing, the Members poll the tenant for any such circumstances.  But Members at the LTB are in the terrible habit of asking landlords or landlords’ agents whether they are aware of any circumstances that would have them deny or delay termination.  In my opinion, supported by some first-class legal minds who I’ve polled and who have studied in the area of privilege and admissibility, the LTB Members have no business asking the question.  Well perhaps they do, but agents and counsel have no business answering the question.  This is so for two reasons.

First, it is never the job of an opposing representative to make the case for the other side.  Second, and more important, any such knowledge that the agent or counsel has that was provided to him by his client is privileged and cannot be revealed unless the client waives privilege.  If I learned from my client any circumstances that would stand in the way of eviction at the Board, and I gratuitously offered those facts to the Board without my client’s permission, and I knew that the revealing of those facts were adverse to my client’s interests, I would be guilty of professional misconduct.  It’s true that I may not mislead the Board, but that’s different than offering up the case for the other side.

It is generally assumed that in Ontario, privilege exists between licensed paralegals and their clients as it does between lawyers and their clients.  This was found to be true in R. v. McClure, [2001] S.C.J. No. 13, 2001 SCC 14, albeit by a case management master, but I’ve never heard a dissenting opinion within the profession.

The second incredibly naïve question I’m hearing asked by Board members to a tenant when the parties have agreed to terms and want them embodied in a Board consent order, is “Are you happy with the consent?“

What a crock of sh…allow thinking.  When parties give informed consent, with or without counsel, and agree to be bound by the terms of the mediated agreement or the consent order, they don’t have to be happy, and they rarely are.  Almost every consent is a compromise, agreed to for any number of reasons that frankly, are none of the Member’s business unless there is reason to believe there was coercion, misrepresentation or there are capacity issues.  When parties go into settlement talks, they bind up all their hopes and fears and facts and legal advice into a settlement that they prefer to any other course of action, usually going before a judge or adjudicator.  They are not “happy” with the consent, and they should not be asked such a question.  Often, the answer given by a party, usually a tenant, is “No, I’m not happy“.  Then the Member second-guesses the tenant’s willingness to enter into a consent, or sometimes refuses to endorse the consent through a Board order.  The only questions that should be asked are a) whether they understand and agree with the consent, and b) whether they are coming to the agreement without the force of coercion.

I don’t know the solution to this pollyanish thinking, other than to suggest that the LTB needs to train its Members in the true realities of the adversarial litigation process.