Proceedings to Evict Before the Landlord and Tenant Board: Some Observations From Experienced Trial Counsel

Proceedings to Evict Before the Landlord and Tenant Board: Some Observations From Experienced Trial Counsel

David Adams
Posted June 22, 2021 Category: News & Updates

On occasion, I have been requested by longstanding clients of the Firm to become involved in proceedings to evict problem Tenants from their residential tenancies.  This request normally comes after the Landlord has become thoroughly disenchanted with either trying to do it themselves or get them out with the assistance of paralegals.  By the time it comes to senior counsel the Landlord is emotional, exhausted, frustrated beyond belief, and usually incredulous that the Tenants remain, causing all manner of problems and seeming to act with impunity.  The Landlord knows that engaging senior counsel to conduct a hearing will mean a significant expense but the desire to rid themselves of the offending Tenant has become personal.

The Residential Tenancies Act, 2006, SO 2006, c 17 (the “RTA” or the “Act”) is a very comprehensive act and many who have practiced in this area would regard it as highly Tenant friendly legislation.  Conduct which almost anyone would regard as grounds for eviction is not necessarily so, and even if particular breaches of the Act are proven, the offending Tenant can appeal to the Board to exercise discretion not to evict under Section 83 of the Act.

The Act is comprehensive and complex and has been well litigated, generating a plethora of case law both by the Landlord Tenant Board (the “LTB”) and all the way to the Ontario Court of Appeal.  Any contested application to evict will require detailed review of the ‘caselaw’ at both the Board and Appellate levels.

The proscribed Rules relating to the practice of the Board are well defined and are both codified and established by custom and convention. The rules governing the conduct of proceedings under the Act are not at all readily comparable to other statutes which govern civil litigation or tribunal work in Ontario, and both the client and counsel are well advised to be very careful of this reality.  Common sense propositions that are obvious to an experienced civil litigator may not fly at the Board, and during a hearing is the last place that the client or counsel would want to learn that lesson. 

Tenants are also often assisted by highly competent specialists in the form of lawyers working in Community Legal Clinics.  These counsel practice and litigate in this area on a regular basis.  They are masters of the procedural rules, understand precedents set by the Board very well, and are articulate in pleading the plight of the otherwise less advantaged Tenants who are stacked up against the “well-funded Landlord” and her counsel.   To underestimate their opponents is a mistake made by many (even senior) counsel who in reality are only ‘dabblers’ in this area of law.

Accordingly, clients and their counsel are well advised to carefully consider these realities lest an unfavorable result obtain. Clients need to understand that they will have to pay for many hours of research and preparation so that they have carefully crafted pleadings, which fully comply with the complexities of RTA and Board requirements, and they must understand that in many cases the only settlement prior to a hearing is ‘cash for keys’.

A client will be stunned when presented with a demand for damages for pain and suffering brought by an offending Tenant who may successfully argue an unlawful eviction by a Landlord who in good faith locked the doors to prevent other tenants or guests on the premises from being hurt!

Experienced Landlords will know all this, and many will have war stories about what Tenants have been able to get away with under this legislation.  Others will have to learn these lessons the hard way.  Either way, if a Landlord feels her only recourse is to retain senior counsel to ‘level the playing field’ they must keep in mind these realities.  It is suggested that the client have a full and frank discussion with counsel before the retainer so that both understand expectations.  Counsel will need to pay great attention to the procedural details and clients need to keep their emotions in check in what can most assuredly be a painful process.

Provided the case is positioned properly and does proceed to a hearing, the Tenant cannot avoid intensive cross-examination.  Oftentimes, a Landlord will enjoy the spectacle of the Tenant being exposed, but as indicated, even a thorough shellacking may not be enough to get that person out.

My advice to clients is to seek professional advice from inception of the tenancy.  Make sure specific details of the lease are known to you and pay close attention to renewal obligations. Keep a detailed journal of the issues and conduct of the Tenant as the specific details of events may be very important if litigation arises.  Above all, keep in mind that being stuck with a bad Tenant, assisted by able opposing counsel under Tenant friendly legislation, may be one of the most trying times in your life.

David Adams
Posted June 22, 2021 Category: News & Updates

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