I was at a hearing this morning in Newmarket acting for a landlord, where the tenant had, in November of 2011, breached the terms of a mediated agreement made at the Board in October. At the hearing date back on October 11th, the tenant had owed four months rent, $5,370, but the parties agreed to a payment plan accomplished through LTB mediation with the option of a s.78 re-application, normally an ex parte process, should the tenant fail to comply with the terms of the repayment agreement.

By mid-November, the tenant had failed to pay the mid-month arrears payment of $1,458. So the landlord filed an L4 re-application, which is supposed to have the Board issue an eviction order without a hearing, and without notice to the tenant. That’s why landlords are willing to mediate…because they feel that any deals they make in mediation will have the force of law, and that on a breach, the Board will take swift action upon the landlord advising them of the breach.

In this case, the duty adjudicator decided to send the matter to a hearing which to be fair, is their right.  This will often happen on an “ex parte” L4 application if there is an error or some confusion in the L4 that requires clarification.  This small landlord was furious to find that after the November 15th breach, and November 17th application, that a hearing was to be held on January 5, almost 6 weeks after they filed.  They had a mortgage to pay, and rent wasn’t getting paid.

So they waited for the hearing.  December came and went.  No payment, either of the arrears or new rent.  January came and went.  No payment, either of the arrears or new rent.

So as not to get deeper into the hole, the small landlord retained me, but not before writing the Vice Chair expressing their bewilderment and their belief that the process was unfair. They also indicated to the Vice Chair that the mediator had never advised them of the risks of delay or set aside during the mediation session. They claim that they were told that if the tenant breached, they would get an eviction order.  The Vice Chair was sympathetic, but quite rightly said that he could not interfere with a matter that was under adjudication.

So the hearing was held this morning.  Remember the tenant owed $5,370 at the original hearing? Well today, they owe $7,370, a full $2,000 more.   All because the duty adjudicator sent the matter to a hearing rather than issue the order on an ex parte basis.

At the hearing this morning, I asked the Member (not the same one who had sent the matter to hearing) if he could tell from the file notes why the Member had not simply issued the order. He replied as best he could, that the notes in the file indicated that the original Member making the decision was confused about the details.

Now I spent three years at the LTB as a Member reviewing L4 applications and signing them if they looked OK to me. I’ve spent another 8 years drafting L4s when my client report a breach of a condition.  And I swear to you readers that the L4 was perfect. The Member this morning didn’t see any issues with it either, and he issued the order that will arrive next week.  Eviction by the Sheriff is certainly at least another month away.

So my client has their eviction order, and an additional $2,000 in unrecoverable debt. How is that fair, consider that the Residential Tenancies Act says the Board has an obligation to resolve matters expeditiously? 

As I tell all my small landlord clients after I get them out of trouble, “Get out of the business.  It’s too onerous and unfair to landlords in Ontario“.  But this all-too-common story today raises three questions that should be put to the Board.

1. Why, if the duty adjudicator has a simple question, could staff not be instructed to call the applicant for clarification?
2. Why, if the L4 is being sent to a hearing rather than an ex parte order being issued, are these hearings based on a breach not given scheduling priority?
3. Why, on the boilerplate of the mediated agreement, does it not include a paragraph after the s.78 verbiage regarding breaches, advise the landlord that the matter might go to a hearing, but even if it doesn’t, the tenant has a right to file a set aside motion resulting in a hearing down the road?

Could it be that the Board is anxious to get matters off the hearing docket even if it means giving less than perfect information to the landlord?