Order for Costs (LTB)

Residential Tenancies Act, 2006, S.O. (S.83)

204 (1) The Board may include in an order whatever conditions it considers fair in the circumstances.

(2) The Board may order a party to an application to pay the costs of another party.

(3) The Board may order that its costs of a proceeding be paid by a party or the party’s paid representative.

(4) The amount of an order for costs shall be determined in accordance with the Rules.

(5) Subsections (2) to (4) apply despite section 17.1 of the Statutory Powers Procedure Act.

LTB Rules of Procedure (Rule 23)

Ordering the Application Fee as Costs

23.1 If the applicant is successful, the LTB may order the respondent to pay the application fee to the applicant as costs. Ordering Another Party's Costs

23.2 A member may exercise discretion to order a party to pay another party's :representation/preparation fees; and other out-of-pocket expenses. Where the LTB orders a party to pay the representation/preparation fees incurred by another party, these fees shall not exceed $100 per hour for the services of a paid representative to a maximum of $700.

23.3 A party who engages in unreasonable conduct which causes undue delay or expense may be ordered to pay costs to another party. Ordering LTB Costs

23.4 A party or a paid representative may be ordered to pay the LTB for its costs of a proceeding. Hearing costs will not exceed $100 per hour to a maximum of $700.

23.5 The LTB will not order a paid representative to pay its costs unless those costs result from the paid representative's conduct.

Guideline 3: Costs

Further Costs Where the Conduct of a Party, a Party's Agent or a Party's Legal Representative is Unreasonable A Member has the discretion to require a party, a party's agent or a party's legal representative to pay, as costs, any representation or preparation expenses of another party where the conduct of the party, a party's agent or a party's legal representative was unreasonable. Conduct is unreasonable if it causes undue expense or delay and includes the following:

• Bringing a frivolous or vexatious application or motion;
• Initiating an application or any procedure in bad faith;
• Taking unnecessary steps in a proceeding;
• Failing to take necessary steps, such as those required by the RTA or Rules;
• Any misconduct at the hearing or in the proceeding;
• Raising an issue which is irrelevant to the proceedings and continuing to pursue that issue after the Member has pointed out that it is irrelevant;
• Asking for adjournments or delays without justification;
• Failing to prepare adequately for the hearing;
• Acting contemptuously toward the Member or showing a lack of respect for the process or the Board;
• Failing to follow the directions of the Member or upsetting the orderly conduct of the hearing; and
• Maligning another party or unreasonably slurring the character of the other party.

TST-75751-16-IN

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1.   At the commencement of the hearing, the Landlord’s legal representative requested an adjournment of the hearing because this was the first sitting of the merits hearing and the Landlord’s main witness, the former property manager of the residential complex, was unavailable.

2.   Prior to the hearing, the legal representative’s office sent an email to the Tenant on September 30, 2016, advising the Tenant of the witness’s unavailability and requesting the Tenant’s consent to reschedule the hearing. The Tenant did not respond to the representative’s email and the representative was unable to leave a voicemail message for the Tenant as the voice mailbox was full. The representative’s email advised the Tenant that, if the Tenant does not consent to the adjournment in advance, the Landlord will request an adjournment at the hearing.

3.   The Tenant emphatically opposed the Landlord’s adjournment request. The Tenant stated that she is a single mother of two minor children and took the day off work, without pay, to attend the hearing. Further, the Tenant brought her mother as a witness to the hearing. The Tenant’s mother had to arrange for a caregiver to attend to the individuals for whom the mother provides care.

4.   The Tenant also stated that she wanted the matter dealt with expeditiously, did not wish to take further time off work and the proceedings caused her stress.

...

10. Lastly, I asked the Landlord’s representative if the Board was notified of the Landlord’s intention to request an adjournment in advance of the date of the hearing, given that the Landlord was aware of the unavailability of its witness as early as September 30, 2016, and the representative stated that no such notice was provided to the Board.

...

13. Be that as it may, in light of what has transpired in these proceedings thus far, this is a case where, in my view, it is appropriate to award Board costs and attendance costs, for the October 5, 2016 sitting of this matter, against the Landlord for the reasons below.

14. I am cognizant that the merits hearing has yet to start. However, Rule 23 of the Board’s Rules of Practice encompasses unreasonable conduct at any stage of the proceeding and such conduct will be relevant in considering the Board’s and other costs, not just unreasonable conduct during the course of the hearing.

15. Pursuant to section 23(1) of the Statutory Powers Procedures Act, a tribunal may make such orders as it considers proper to prevent an abuse of its processes.

16. Subsections 204(2) through (4) of the Act govern the imposition of such awards:

(2) The Board may order a party to an application to pay the costs of another party.

(3) The Board may order that its costs of a proceeding be paid by a party or the party’s paid representative.

(4) The amount of an order for costs shall be determined in accordance with the Rules.

17. Interpretation Guideline 3 sets out the Board’s position on when it may be appropriate to order costs:

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18. Examples of failing to comply with the RTA or Rules would include the following situations:

• Failing to follow a procedural order or direction such as an order to serve another party with a document;

• Serving another party in a way which was not appropriate;

• Delaying the hearing by not taking actions required in the Rules.

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20. I have not disregarded the Landlord’s submission that the Tenant could have simply consented to the adjournment request and all would have been resolved. However, this submission overlooks the obvious—had the Landlord exercised reasonable diligence in requesting a summons for the Landlord’s main witness, in all likelihood the witness would have attended, the hearing would have proceeded, two hours of valuable Board hearing time would not have been unused and the Tenant and her witness would not have been inconvenienced. As well, as far as I’m concerned there is no statutory duty on a party to reply to another party’s request for consent to adjourn.

21. The Landlord’s improvident conduct was exacerbated by its failure to advise the Board in advance of the hearing that it was seeking an adjournment. Such advance notification is important as it allows the Board to schedule emergency hearings and other hearings in the place of matters that will, in all likelihood, not proceed. This is especially so given the significant amount of Board time assigned to hear the Tenant’s applications—two hours as agreed to by the parties during the CMH, and the Board’s already extremely strained available hearing time. Such advance notice could have effortlessly been provided via an email, facsimile or telephone call to the Board in the days prior to the hearing. In my view, the conduct of the Landlord is entirely unreasonable and amounts to an abuse of process. It is also noteworthy, and this ought to be well known to the Landlord and its two experienced legal representatives in this matter, parties routinely submit requests to administratively reschedule matters in the absence of the opposing party’s consent and the Board has granted such requests where there is merit.

22. I also note, as stated above, that the Landlord further failed to follow the Board’s direction by not providing disclosure to the Tenant or advising the Tenant about the witnesses it wished to call in advance of the hearing. As I stated during the hearing, it may be that the Landlord has nothing to disclose to the Tenant—however, my review of the file leads me to believe that this is highly unlikely. As the Landlord admittedly has a “main witness” to call and the name of such witness was not provided to the tenant in compliance with the Board’s interim Order, this constitutes a further failure to follow a procedural order or direction of the Board and is in contravention of Rule 19 of the Board’s Rules of Practice.

23. In my view, the Landlord’s conduct in the proceedings thus far also amounts, on a cumulative basis, to a lack of respect for the Board’s process.

24. Subsection 204(3) of the Act provides a Member with discretion to order a party or their agent or legal representative to pay the costs of the Board. Clearly, such discretion should be used sparingly. In my view, the Legislature intended that such Board power be used to recover some of the public’s monies which funded the proceedings and, further, to discourage inappropriate practices and conduct by parties and parties’ agents and legal representatives in the future.

25. In my view, an Order for Board costs is proper in situations where adjudicative costs to the public have been unjustifiably increased by the unreasonable conduct or omission of a party or a party’s agent or legal representative. I am of the opinion that the Landlord’s conduct and omissions, as outlined above, meet the required threshold and, on a balance of probabilities, justify the imposition of Board costs against Landlord. The Landlord will be ordered to pay $200.00 to the Board. I gave serious consideration to ordering a higher amount. However, given the lack of evidence before me that the Landlord or its representatives have engaged in similar conduct on other occasions, the amount stated will be ordered.

26. For the foregoing reasons, I also find the Landlord’s conduct to be unreasonable and to have caused undue expense and delay not only to the Board but to the Tenant.

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It is ordered that:

1.      The hearing is adjourned, peremptory on the Landlord, to return on a date set by the Board.

2.      The parties shall attend a hearing on the merits of the Tenant’s applications as set out in the new Notice of Hearing that will be mailed by the Board to the parties.

3.      As soon as possible, and no later than 15 days before the next hearing date, the Tenant shall disclose to the Landlord a copy of any document, photograph, receipt, recording or like thing she intends to rely on at the hearing, which has not yet been disclosed, as well as a list of any witnesses to be called.

4.      As soon as possible, and no later than 10 days prior to the next hearing date, the Landlord shall give to the Tenant a copy of any document, photograph, receipt, recording or like thing it intends to rely on at the hearing as well as a list of any witnesses to be called.

5.      Pursuant to Rule 19.1(3) of the Board’s Rules of Practice a party that does not comply with an order for disclosure may not be permitted to rely on any undisclosed evidence.

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TNT-71474-15 (Re), 2015 CanLII 93375 (ON LTB)

17. The Landlord asked for costs for the re-convening of the hearing after the Tenant’s application was dismissed due to his failure to attend the hearing.

18. The matter was previously heard in Newmarket on July 6, 2015. Member C dismissed the application at 10.25 a.m. because the Tenant had failed to appear. The Tenant arrived after the matter was dismissed and identified himself to the Member at 11.25 a.m. He claimed he was late because he was sick and had been vomiting. The Tenant informed Member C that he had called the Board in the morning to indicate that he would be late. Member C decided to reconvene the hearing. Within two days of the hearing the Tenant amended his T2 application by removing the maintenance issues in that application, as they did not properly belong to a tenant’s right application, and filed a separate maintenance application.

19. The Landlord, who lives above the Tenant, contended that she had not heard any noise related to the alleged vomiting. Furthermore, her prior communication with the Tenant suggests that, after refusing the Landlord’s request for an adjournment, the Tenant was interested in adjourning the matter because he had not been able to obtain a police report and did not disclose documents he intended to rely on at the hearing prior to the hearing.

20. I gave the Tenant the opportunity to provide post-hearing submissions on costs. First, he submitted that since Member C reconvened the hearing of the application, I do not have jurisdiction to order costs for the reconvening of the hearing. The reconvening of the hearing is not akin to hearing a motion within an action or application. The Board has jurisdiction to order costs based on the conduct of a party in a proceeding (section 204 of the Act.). The proceeding includes all possible steps in the application from the time it is filed until it is disposed of.

21. The Tenant provided a printout from his clinic confirming that he visited a clinic after the hearing and reported vomiting the previous night and in the morning. While the Tenant suggested that Landlord’s note from her doctor should be disregarded because it only reports what the Landlord told her doctor, I accept the printout from the Tenant’s clinic as corroborating evidence. The Tenant’s telephone log also establishes that he called the Board shortly after 9.00 a.m. on the day of the hearing. However, the Tenant did not inform the Landlord that he was going to be very late (see Guideline1 of the Landlord and Tenant Board Interpretation Guidelines). This was important since the Tenant was informed by a Board employee that his message about being late could not be relayed to the Member in Newmarket. Had the Tenant contacted the Landlord by text as he does when he wants to, the hearing could have been adjourned earlier. The Member could also have waited longer for the Tenant to appear. Despite the Tenant’s disregard for the Landlord, costs would have been inappropriate had the Tenant’s conduct during the remainder of the proceeding been without reproach.

22. However, the Tenant’s conduct during the rest of the proceeding was unreasonable. Rule A7.1of the SJTO Common Rules provides that all persons participating in proceedings before the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding. First, the Tenant attempted to influence the proceedings by adjudicator-shopping. He cast aspersions on the competence of Member C and alleged an imminent conflict of interest on the part of Member C. On July 14, 2015, the Tenant wrote to me in my capacity as District Vice Chair, claiming that while waiting to heard he had observed Member C conduct hearings of other applications and in his opinion Member C did not conduct the hearings properly. Furthermore, he submitted that he intended to file a lawsuit against Member C with respect to an unrelated matter which he did not disclose. I assigned myself to hear the application and the hearing scheduled for July 24, 2015 was rescheduled to September 14, 2015. The Tenant has not filed any law suit against Member C. He simply wanted some other Member to hear his application. It was an unnecessary step that delayed the proceeding (Guideline 3 of the Landlord and Tenant Board Interpretation Guidelines).

23. On September 14, 2015, the Tenant disclosed 2 bound briefs of documents and case-law that he intended to rely on. One of the briefs contained a compact disc of noise recordings. The Tenant had not disclosed the material to the Landlord before the hearing, even though he lives in the Landlord’s basement. This placed the Landlord at a serious disadvantage and I recessed to give the Landlord the opportunity to review the documents and determine whether she could proceed. The Landlord was desperate to have the matters resolved, so she chose to proceed after the delay. The Landlord also did not disclose the 5 documents she tendered as exhibits prior to the hearing, but the Tenant was not prejudiced. The documents included a letter from her doctor, a police report that both parties sought, and 2 pictures of the Tenant’s storage area.

24. The Tenant’s conduct during the hearing on September was unreasonable in other respects. He persistently tried to bully the Landlord, upsetting the orderly conduct of the hearing. In his submissions the Tenant contends his “somewhat aggressive behaviour” only started during the course of his cross-examination of the Landlord and after the latter insulted him (a reference to the Landlord’s testimony that a neighbour had asked her whether she was running a brothel in her basement). The Tenant’s improper behaviour in fact commenced right at the beginning of the hearing. When the Landlord broke down while testifying, the Tenant insisted that I make her continue because she was faking tears. This was all before the Tenant cross-examined the Landlord. It was incumbent on the Tenant to exercise restraint even when he was not getting the answers he was looking for in cross-examination. Instead, the Tenant moved in a menacing way towards the Landlord and pushed his face close to the Landlord’s face. Notwithstanding my previous direction and caution, the Tenant also interrupted the Landlord’s submissions when she was crying and repeatedly called her a liar.

25. The Tenant’s insistence of pursuing peripheral issues, interrupting the proceedings with unnecessary objections, and making submissions during his cross-examination prolonged the hearing (Guideline 3).

26. In light of the unreasonable conduct of the Tenant, it is appropriate to award costs against the Tenant. The Tenant shall pay to the Landlord $200.00 for preparation and attendance.