Will the Landlord Tenant Board Soon Return to Normal Operations?
Despite Recent Commentary Within the Media, Social Media, and Legal Circles, a Date For Return to Normal Operations of the Landlord Tenant Board Remains Unknown.
Understanding What to Expect From the Landlord Tenant Board Due to Covid Causing Delays
Following many months of restricted operations providing attention to only those matters constituting as serious health and safety risks as well as involving unlawful conduct, the Landlord Tenant Board is beginning work on a resumption of, somewhat, normal operations. Of course, where the Landlord Tenant Board was struggling with operational challenges prior to the Covid19 Crisis, it should be presumed that normal operations, meaning normal operations in the context of what would be expected of an efficient tribunal, may remain far off. Accordingly, it may be prudent to avoid presuming that all matters will now receive prompt attention and scheduling.
Gradually Expanding Services
As per the Landlord Tenant Board announcement dated July 30th, effective August 1st, the resumption of operations involves a gradual expansion of services; and accordingly, the details regarding a return to fully normal operations remain unknown. At present, the Landlord Tenant Board:
- Will begin to issue eviction orders that are pending from previously heard or reviewed matters;
- Will start issuing eviction orders as were agreed to within settlements arrangements;
- Will continue hearing urgent eviction matters where health and safety are at issue;
- Will start scheduling hearings for evictions of a non-urgent nature; and
- Will be conducting hearings for eviction of a non-urgent nature starting later in August.
Interestingly, the Landlord Tenant Board announcement and the references to gradually expanding services, mention only concerns relating to eviction. Of course, it is apparent that the majority of the matters delayed during the Covid Crisis related to issues involving eviction; however, for those with matters involving legal issues relating to issues other than eviction, it appears that such matters shall be further delayed while matters with eviction issues are addressed as a priority and regardless of when the matters were initiated.
Per the Landlord Tenant Board announcement, it is merely stated that resumed operations will involve the scheduling of evictions lacking the urgency criteria, meaning those evictions involving a concern other than health and safety, such as arrears of rent payment. Furthermore, whereas the Landlord Tenant Board in many locations as months behind with scheduled hearings prior to the Covid Crisis, due in part to an apparent shortage of adjudicators as widely reported (Toronto Star, CBC) and whereas the Ontario Ombudsman Office has commenced an investigation regarding Landlord Tenant Board delays, it will be interesting, and likely concerning, to see how many more months it will be for a hearing date as the scheduling of matters resumes.
On July 6 2020, the Chief Justice for the Superior Court of Justice (Ontario) issued an Order to amend the previous Order issued on March 19 2020 which resulted in the suspension of residential evictions or what became referred to, and known as, publicly and within the legal profession, a moratorium on evictions. The amendment altered the original Order in such a way as to cease the suspension on evictions at the end of the calendar month in which the emergency declared by the government ends. Accordingly, whereas the declared emergency was terminated in July, per Bill 185 and the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, Chapter 17, at section 17, the amended Order of the Chief Justice was triggered and the suspension on evictions ended. More simply said, the moratorium on evictions was terminated at the end of July and therefore the eviction process, including evictions enforced by the Office of the Sheriff, may resume. Of course, after nearly five months of very limited operations, the Office of the Sheriff will be dealing with a significant backlog with requests to provide vacant possession of rental units to landlords.
Interestingly, in opposition to the lifting of the eviction moratorium, the Advocacy Centre for Tenants Ontario brought an urgent motion to the Superior Court seeking an Order to continue the moratorium on evictions. More specifically stated, the Motion brought by ACTO sought to set aside or Stay the amended Order of the Chief Justice, the result of which would be to continue the moratorium. The urgent Motion was heard by the Superior Court on July 31st and the Judge rendered a decision on August 2nd. As per the case of Attorney General for Ontario v. Persons Unknown, 2020 ONSC 4676, the request to set aside or Stay the Order of the Chief Justice, and effectively continue the moratorium, was denied. Specifically, it was said:
 Both sides’ proposed evidence and arguments about the propriety of the July 6, 2020 order turn on public policy choices as between the interests of tenants and landlords based on unknowable prognostications about the course of the pandemic. Different classes of tenants and mortgagors on one side, and landlords and mortgagees on the other, may have very different interests at stake. That is not what was before the Chief Justice and is not properly a legal issue for the court in my view.
 I am cognizant of the case law that sets out clearly that the test of whether a proposed question is a “serous issue to be tried” does not set a high bar. While ACTO has tried to grasp process issues to get its foot in the door, the tenants whom it purports to represent (and the landlords on the other side as well) advance no substantive issue of relevance.
 An order of the court was required to effect the moratorium because subsisting orders and writs required Enforcement Officers to act as a matter of law. The use of a proceeding and a court order does not change the nature of the argument the tenants’ and landlords’ proposed representatives wish to make. They want to argue about whether evictions should be allowed in Ontario at this time. The Chief Justice was considering when to bring Enforcement Officers back to work as part of the phased re-opening of the court.
 Whether tenants seeking to avoid eviction orders due to the pandemic can go back to the Landlord and Tenant Board (as was argued by the landlord representatives) or whether they can bring motions to the court under the varied moratorium (as was argued by the Attorney General) is not before the court. Tenants’ individual situations are for their own cases.
 I have no doubt that ACTO performs valuable services on behalf of tenants and other vulnerable constituents. The issues that it has raised are issues on which they have already and will rightly continue to lobby the government.
 Accordingly, I dismiss the motion for a stay. If the matter is to proceed despite this order, one or more case conferences are required to set a process to determine what notice may be required, who will be parties, and whether one or more representation orders ought to be made under Rule 10. Then a schedule for the exchange of material and cross-examinations is required. In light of the numerous parties who attended this hearing and ACTO’s indication that everyone facing an eviction order in Ontario has a right to be heard in this proceeding, I am dubious that a hearing in a few weeks is very likely.
Financial Enforcement Hearings
At present, full operations of the Small Claims Court are expected to resume in January. Such operations of the Small Claims Court involve financial enforcement hearings such as garnishment hearings, examination hearings, among others. Whereas monetary aspects of an Order of the Landlord Tenant Board must be enforced via the Small Claims Court, the continued closure of normal operations of the Small Claims Court results in delay in enforcing the monetary aspects of an Order from the Landlord Tenant Board.
Despite communications and rhetoric suggesting that the Landlord Tenant Board is resuming normal operations, both landlords and tenants should anticipate that the Landlord Tenant Board will be gradually resuming operations and will continue to prioritize urgent matters involving health and safety. Furthermore, whereas lengthy delays existed prior to the Covid Crisis, it is quite likely that those matters that fail to meet the urgency criteria will, unfortunately, remain subject to lengthy delay.