May 2006

Emma Sims is a paralegal with Cohen Highley LLP, who represents landlords before the Ontario Rental Housing Tribunal. She can be reached at 672-9330.

Disclaimer: The information provided in this article does not constitute legal advice of any kind, and is provided to the public for informational purposes only.  Before acting on any of the information provided in this article, you are urged to consult a legal professional who will be able to address the specific circumstances of your matter.

Tenant applications to the Ontario Rental Housing Tribunal (OHRT) usually fall under one of two sections of the TPA: for a breach of obligation under the statute, or for money collected illegally. The vast majority of tenant applications are made under section 32 of the TPA either for Tenant Rights (Form T2), alleging some unlawful conduct perpetrated by the landlord, or about maintenance (Form T6), for a failure to maintain and repair the rental unit or residential complex.

The tenant is obligated to serve the landlord with a copy of the Application and Notice of Hearing issued by the Tribunal. It is important to review the Notice of Hearing to determine whether a dispute must be filed with the Tribunal.

Depending on the nature of the application it may be useful to file a dispute, even if one is not called for in the Notice of Hearing. A well conceived dispute will often serve to balance the negative aspects portrayed in the tenant’s application. Some members review the file in detail prior to the hearing; therefore, it is useful to present the opposing view to avoid a predetermination of the matter by the member.

The Application should be evaluated to determine whether it is a matter that can be handled by the landlord or property manager or whether legal representation will be required. If the tenant is represented by either a lawyer or agent, then it is advisable to have legal representation at the hearing.

Depending on the nature of the application, a call to the tenant to obtain clarification of the issues raised may assist you in determining whether the tenant would be amendable to resolving the matter informally, or with the assistance of a mediator, without the need for a hearing before the Tribunal.

There are many different factors to consider in deciding whether to mediate a resolution to an application. Some positive aspects to mediation include confidentiality and the ability to control or minimize the exposure on the application and potentially avoid the consequences of a public or precedent setting decision that may encourage other tenants to file applications. Mediation may also be helpful to narrow the issues and, in some cases, “discover” information that was not disclosed by the tenant on the application form.

If the tenant has raised maintenance issues associated with the rental unit that were never previously disclosed, then it is advisable to arrange for an inspection of the unit, by following the notice procedures specified under the TPA. If you are denied access to the unit by the tenant to carry out the inspection, then make note of the date, time and reason given by the tenant and bring this information to the hearing.

It is important that you go to the hearing fully prepared to respond to the tenant’s application. In order to be prepared make sure that you understand the nature of the complaint. If necessary, contact the tenant prior to the hearing and seek clarification about their application: be clear about what is being alleged or being sought before the Tribunal. It may be necessary to attend at the Tribunal office and view the application file and any documents or photos submitted by the tenant.

Investigate the complaints raised in the tenant’s application. If the complaint relates to the conduct of another tenant or employee of the landlord, review the complainant’s file to see if there is a record of past complaints. Check to see if the allegations are true and whether they have been reported to the landlord in the past.

Decide who on the landlord’s staff has first hand knowledge about the matter in issue and can attend at the hearing to give evidence on behalf of the landlord.

If it is necessary to summons a witness to a hearing it is important that it be done promptly upon receipt of the Notice of Hearing. A request must be submitted to the Tribunal in writing for a summons and must include the name and address for service of the witness, a brief summary of the evidence to be given by the witness, and an explanation why the evidence is relevant and necessary. The discretion whether to issue a summons rests with the Member assigned to review the request.

Typically a municipal official (i.e. Police Officer, Bylaw or Property Standards Officer, Fire Prevention Officer) will agree to attend a hearing provided they are served with a summons.

When presenting your case you want to introduce facts that are relevant to the issues raised in the application. It is important to lay out the facts in a chronological or organized manner and supported with any documents and/or testimony from witnesses.

It is important that you treat the applicant and witnesses with respect. Refrain from arguing with the applicant or the Tribunal Member.

In summary, if you demonstrate to the Member that you are prepared and responsive to the tenant’s application, then it will increase your chances for a successful defense.