Friday, January 4, 2019

Justice in Toronto 1: quick LTB evictions and Ontario standard lease

There has been a lot of talk about “access to justice” (or a2j), the SRL crisis and corruption / underperformance in Canadian courts. While increasingly case law can be found on CANLII, what is often missing is details, and for obvious reasons: getting the details wrong may result in libel lawsuits. However, we believe that making non-identifying details public - i.e., the “story” - can help shed some light on how the litigation industry works (or doesn’t) in our city.

Texts SMSs after message under the doorBack in January 2018, Felicity Conrad had published 8 “access to justice” predictions for 2018 (fc-8a2j) – but can we objectively claim that ANY has come true?! We learned that “Justice” was declared word of the year by Merriam-Webster (ange-justice18). Closer to home (nslrp-a2jru18), we get a short history lesson and a quick look at the defining events for 2018 SRL phenomenon.

There are many criticisms levelled on the “justice” system and many ideas re: what needs to change, but before going there, let us look at a few examples.

The first is a tenant who believes that he or she was unfairly accused of not paying rent and that the landlord has, so far, managed to get away with this false accusation to the point of eviction.

The Tenant responded to an ad posted on Kijiji and visited an apartment in Toronto’s hip & hippie Kensington Market that, confusingly, looked nothing like the ad photos. Additionally, the ad poster referred to the landlord by a name completely different than the Landlord’s official name, the Landlord took 30 minutes to answer the door (and it was answered by a kid), and the lease had to be signed at a different location.

A 6-month lease to rent a basement unit was signed on May 4, 2018 (p 1, 2, 3, 4) for $700/month. The Tenant claims to have requested a written copy of the standard lease on signing day and even showed the landlord where to get it from (mah-sl) on his or her laptop, as well as the foreign language guides (onca-stdls - ss-multilgds), but the landlord never bothered. On this lease, the Tenant used his or her CanadaPost Flex delivery address for “mailing address”.

References to the standard lease can presently be found on the LTB website as shown in the screenshots and links below (ss-slrules, ss-ltbslsrch, ltb-slsrch, ss-ltbsl02, ltb-linktomah).

If a landlord fails to provide the standard lease within 21 days after a renter has asked for it in writing, the renter may withhold one month's rent.

If the landlord fails to provide the standard lease within 30 days after the renter has begun withholding rent, the renter does not have to repay the one month's rent. 

On moving in, the Tenant had paid “first and last” by [Interac] Email Money Transfer (aka e-transfer) and then the Landlord’s mother-in-law requested post-dated cheques, which the Tenant provided.

The Tenant sent a few letters asking for the standard lease, but there was no response. The Tenant also requested that the post-dated cheques be returned; they were not.

The Tenant then withheld one month rent starting on June 1. The Landlord verbally asked the Tenant to move out and threatened litigation. When the Tenant didn’t move out, the Landlord enlisted the other basement tenant, with whom the Tenant was sharing a kitchen, to engage in harassment by proxy. The other tenant was arrested and thus basement unit 1 became vacant.

The Tenant attempted to pay the next rent in time via Interac Email Transfer on July 1, but the Landlord started to make it more difficult and time consuming. When the Landlord entered the password for the email money transfer wrongly 3 times in a row, causing the transfer to be cancelled, the Tenant resent the payment, met the Landlord at the latter’s convenience store, discussed some outstanding issues and ensured that the Landlord had learned the password and was able to enter it. From then on, the Tenant sent each payment using this simple password, except for September rent, which was paid in cash with receipt.

The Tenant filed a T2 application with the LTB, which was withdrawn on consent on October 5, after Member Flynn indicated that he felt that he is required by precedent (Ball vs Metro Capital; PDF) to dismiss it and with the benefit of advice [also, weird fme conv with xlator] (order 1, 2).

Once again, the Tenant had used his or her CanadaPost Flex delivery address on their application.

The Landlord filed an L1 and L2 application, using the basement apartment address (NB: NOT the Tenant’s mailing address) which was scheduled for and heard on December 4. A recording was obtained and it is currently being transcribed.

At the hearing, the Tenant claimed that they had not been served with any documents and only learned of the hearing from the translator’s messages:

The Tenant attempted to list the reasons for an adjournment (lack of notice which resulted in lack of preparation, need for interpreter, need to obtain professional advice), but Member David Mungovan interrupted, commencing an examination of the Landlord.

Upon seeing that the Landlord required the use of a translator, Member David Mungovan asked how long has the Landlord been in Canada and was told 9 years. The Member asked, incredulously, “and you require a translator?”, followed by “pourquoi?”, presumably French for “why?”.

Under Member David Mungovan’s examination-in-chief, the Landlord admitted that the corresponding form (N12: 1, 2) for their L2 (1, 2, 3, 4, 5, 6, 7, A, B) had not been served as stated in the Certificate of Service and as such their L2 was (seemingly) dismissed. Given that the house in question is a rooming house with multiple units on the top floors and a vacant unit in the basement, very similar to the Tenant’s, the Landlord faced an uphill battle to convince a reasonable individual that their affidavits (landlord, spouse) were valid even if their application had been allowed to proceed. The Member still considered L1 (1, 2, 3, 4), choosing to believe the landlord’s version that N4 (1, 2) had been properly served. Member David Mungovan even allowed the Landlord to introduce their L1/9 Update (A, B) without requiring that a copy is provided to the Tenant. The L1 original application requested the June payment (which had been withheld due to standard lease rules, as shown above), and then the L1 Update requested the rent for October and December, but strangely, not for November.

The Tenant attempted to show proof of payment of rent on their phone. Member David Mungovan did not raise any objection to this proof and as such appeared to be satisfied. The Landlord claimed that they received the transfers but were unable to deposit it because they did not know the password. The Tenant showed proof that the rent payments were made on the first of each month and were deposited by the Landlord, and even offered to show video recordings of the password being set. Member David Mungovan asked “what kind of person makes such a recording?” and the Tenant explained that ever since having tried to assert their rights, (in violation of RTA) the Landlord has been trying to get the Tenant to move out, and part of it was to make rent payments more difficult. When the Tenant offered to show the aforementioned video recordings, Member Mungovan stopped them, saying several times “we’ve had enough fun today”.

An Order was issued on December 12 (1, 2, 3, 4, S1, S2). From Determinations:

  • 2. (page 1/4): “(…) where the evidence between the Landlord and the Tenant conflicts, I prefer the evidence of the Landlord to that of the Tenant, generally.”
  • 3. (page 2/4): “(…) charges of $12.00 (…) NSF and $15.00 related administration charges (…) I find the Landlord failed to prove this part of her claim which must be denied” yet in Schedule 1 it appears that the claim is allowed.
  • 6. (page 3/4): “I have considered (…) the Tenant’s assertions he withheld June rent because he did not receive a standard lease, which is no excuse; he sent etransfers for rent for October and December using the same passwords but in circumstances where there was no good reason the Landlord would not accept rent payments if she could have”

The Tenant faxed in a Request for Review on December 25 (1, 2, 3, 4, hr) with an affidavit added on 27; it was rejected on December 28 under the signature of Vice-Chair Nancy Henderson (1, 2, 3). The Tenant thinks he or she may have previously appeared in front on the latter; additionally, on the 27, while swearing the affidavit, the Tenant overheard staff stating that there is no bilingual Member available, which may have played an undue role in the Vice-Chair’s decision.

The Tenant has encountered significant difficulties obtaining legal advice. Though a duty counsel is available, they stated they are understaffed and were changing their work hours repeatedly throughout December. At first, they were seeing tenants with same-day hearings in the morning and everybody else from 1-4, then, when the Tenant showed up before 3pm, they schedule had shifted to 3. Additionally, even while present, the duty counsel claimed to be closed and despite attending for several days in the time interval when they were supposed to be open, the Tenant could not talk to duty counsel. In the first week of January, duty counsel started seeing everybody in the morning as there were no hearings, but the Tenant still had no luck. On the hearing date, the duty counsel could not advise when and how the Tenant can move out.

The Tenant received this note from staff advising him to “google search Service Ontario” and in January picked up an eviction notice served via UPS.

The Tenant believes that the Divisional Court is the appeals court (ag-guide2a, oc-scj) where this statutory appeal may be heard, should the Tenant choose to do so. The process is started by “serving and filing one copy of a Notice of Appeal(Form 61A; example) and one copy of an Appellant's Certificate Respecting Evidence (Form 61C)” within 30 days of the order to be appealed. Once the notice is filed, the rest of the documents must be filed within 10 days.

We will be updating this article with documents as we receive and anonymize them.

*(*This article is unfinished – it was scheduled to appear in the hope that it will be finished before, but since this message is here and until it is removed, the article is to be considered work in progress*)*.

Sources / More info: mw-justice18, ange-justice18, fc-8a2j, nslrp-a2jru18, mah-sl, onca-stdls, ss-slrules, ss-ltbslsrch, ltb-slsrch, ss-ltbsl02, ltb-linktomah, ott-otl, ag-guide2a, oc-scj, sjto-complaints, jud-complaint(ont), cjc-complaint(fed), tltbstry

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