Behaviour can be predicted, shaped and molded.  Economists tell us we can predict and shape consumer behaviour by adjusting variables.  Anyone seriously looking at the LTB’s system today will agree that the variables in place guarantee frivolous matters being filed, frivolous delay requests, refusal to negotiate in good-faith and irrational decision-making behaviour by the parties to litigation.

It used to be that when there was a problematic tenancy, when rent was owed or where the parties couldn’t stand each other due to the ongoing dysfunction and the relationship was completely irreparable, there were solutions that involved ending the tenancy by making a deal.  Some call it “cash for keys“.

Prior to COVID, the risk in the system was shared by both parties, and that provided an incentive to make a deal.  The tenant feared a quick eviction with no money in their pockets, and a damaged credit score.  Better to leave with first and last in your pocket for the next tenancy.  The landlord was concerned about mounting debt or additional damage, plus stress and time away from work.  Everyone had an interest in getting out of each other’s lives for fear of the consequences.  And they were willing to compromise a bit to make the problem disappear.

But that was then, and this is now.  In most types of civil litigation, the damages are fixed and final when the parties finally get to court.  With landlord and tenant litigation, the damages continue to accrue as the matter goes through the LTB system.  Physical damage becomes worse if the tenant is prone to such behaviour, and rent arrears increase monthly as tenants stop paying rent.  A delay is as good as a win for many tenants in rent arrears situations.

In my days as an LTB adjudicator, matters would often get to the Board 3 weeks after the landlord filed their L1 rent application.  Today it’s about 5 months minimum, and up to 8 months for some files.  But that’s just for the first appearance.  The LTB stats show “time to hearing“, but that’s just the first appearance.  If the parties have to go home without their matter being heard because of over-booking, it’s another several months before the return date.

And over-booking is rampant.  The opening canned speech from adjudicators routinely warn the public that they likely won’t get heard, that mediation may be the only way to get the matter completed, and that they may be there the entire day until 4:30 to find out whether their matter will be completed.

This is unacceptable.  There are lots of reasons this is happening.  A tenant-centred Board that often fails to use common sense, the increased complexity of this area of the law caused by appellate decisions, the lack of cost consequences for the loser removing risks to frivolous litigation, the almost automatic granting of tenant review requests, but most recently, by a severe lack of Members (adjudicators) at the Board.

Appointments to adjudicative positions in Ontario are done through time-limited appointments.  In the past year, there have been an unprecedented number of new appointments.  But with the COVID backlog of 5 months, even a full compliment of Members doesn’t do the trick.  Due to training issues, high volumes, some adjudicators quitting and online hearings, the LTB has not managed to reduce the COVID backlog.

For rent arrears matters, tenants are laughing at offers of three months rent forgiveness in exchange for an end to the tenancy.  Why make a deal with the landlord when the LTB process takes much longer.  Add the Sheriff time to evict, and another month is tacked on.  Add a review, and it’s another 6 weeks delay.  Add an appeal to the Divisional Court, and it could be 6 months or a year for delay.

And then there is the issue of rent inflation.  If a long-standing tenant leaves, it’s not unusual that their monthly rent will go up by $1,000.  That’s $12,000 in a year.  To offer them even $10,000 to move out doesn’t do the trick any more.  Add the fact that it can take a year to evict, tenants often just stop paying rent completely when a landlord starts hinting at moving in, or files a rent application to the LTB.

So we are in for long-term pain. The government seems not to care.  The risks of becoming a landlord have been heightened.  The risk of trying to sell a tenanted home is enormous.  The current situation is unacceptable.