Withdraw of an Application (LTB)

Residential Tenancies Act, 2006, S.O. 2006, c. 17

29 (1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

(...)

4. An order determining that the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the rental unit.

(...)

200 (1) An applicant may amend an application to the Board in accordance with the Rules. 2006, c. 17, s. 200 (1).

(2) Subject to subsection (3), an applicant may withdraw an application at any time before the hearing begins. 2006, c. 17, s. 200 (2).

(3) An applicant may withdraw an application under paragraph 4 of subsection 29 (1) only with the consent of the Board. 2006, c. 17, s. 200 (3).

(4) An applicant may withdraw an application after the hearing begins with the consent of the Board. 2006, c. 17, s. 200 (4).

Landlord & Tenant Board - Rules of Procedure

17.1 An applicant may withdraw an application without consent at any time before the oral or electronic hearing begins unless it is for an order that the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant's occupancy of the rental unit in which case it cannot be withdrawn without the consent of a Member or DRO.

17.2 Where an application is being heard in writing, it may be withdrawn without consent at any time before the day on which the applicant's written submissions are due. The applicant must notify the LTB and the other parties of the withdrawal as soon as possible.

17.3 An oral or electronic hearing begins when parties first come before the Member or DRO and this includes an appearance on a preliminary matter. After an oral or electronic hearing begins the application cannot be withdrawn without the consent of the Member or DRO.

TST-84840-17 (Re), 2017 CanLII 59952 (ON LTB)

4. On the morning of July 4, 2017, the day before the hearing, the Tenant sent the Board a request to withdraw this application. As she did not indicate that the Landlords consent, at approximately noon on July 4, 2017 the Board left a voicemail message for the individual Landlord. The Board did not hear back from the individual Landlord and at approximately 4:00pm I issued a direction denying the Tenant’s request to withdraw prior to the hearing because the Landlords did not consent to the request.

11. However, there will be no order for costs in this application. The main factor to be decided when awarding costs is whether a party’s conduct was unreasonable in the circumstances. Conduct may be found to be unreasonable when it results in undue delay or expense to the other party. Given the circumstances, it was not unreasonable for the Tenant to wait until July 4, 2017 to withdraw her application; if she had done so earlier she risked not having her issues adjudicated at all, either by the OHRT or by the Board.

12. As for the issue of undue expense, the Tenant’s application signals that she intends to file a complaint with the OHRT and also suggests that this application be postponed. Then, in her e-mail of May 31, 2017, the Tenant said that she may consider cancelling her LTB case. Then, on July 4, 2017, the Board left a voice mail message for the individual Landlord stating that the Tenant wished to withdraw the application. In his response submissions, the Landlord’s legal representative he stated that the Tenant did not notify her intention to withdraw the application until the day before the hearing. This means the Landlords were aware, on July 4, 2017 (likely through the Board’s voice mail message) that the Tenant intended to withdraw her application. The Landlords could have then decided not to send a representative to the hearing. Instead they sent a representative.

13. Further, I have considered whether the Landlords have incurred undue expense by preparing for the hearing on July 4, 2017. The Tenant has made it clear that her claims will be made to one adjudicative body or another, so some preparation will be required in any event. Any preparation undertaken for the hearing scheduled for July 5, 2017 will not be wasted; it may be applied to the proceeding at the OHRT.

14. As I am not satisfied that the Tenant’s conduct in waiting until July 4, 2017 to withdraw her application was unreasonable, there will be no order as to costs.

15. In accordance with subsection 200(4) of the Act, I consent to the withdrawal of the application.

TST-50612-14-RO-IN (Re), 2015 CanLII 69369 (ON LTB)

5. There is no dispute trhat when BT arrived at Board on the day of the hearing he asked the Tenant if he understood that the matter could lead to a fraud investigation, and, in response to the Tenant asking if that was a threat, BT responded that it was a promise. SN and the Tenant spoke further and agreed to work on a mediated settlement and BT left. As part of the agreement, the Tenant agreed to withdraw the application with prejudice and, in consideration, the Landlord agreed it would not pursue any proceedings based on the ‘alleged fraudulent N2 notice’.

6. The evidence does not support that the Tenant was coerced into mediation. I am not satisfied that the Tenant acted against his will in response to threats made by the Landlord. Informing the Tenant of the possible consequences of proceeding on the basis of false information is not in and of itself a threat. At various points, the parties made choices based on their various interests on how to proceed and left with an agreement. The agreement was signed on April 15, 2014. The request to re-open was filed April 14, 2015. It would be expected that if the Tenant felt coerced into the agreement, he would not have waited until the last possible day to challenge it on that basis. The Tenant has been before the Board previously and participated in mediation.

7. I also note that SN contacted the Tenant by email the day after the agreement was signed to suggest the agreement should not contain a re-open clause because the parties had agreed in clause 1 that the Tenant would withdraw the application with prejudice. The Tenant responded by email that he would not agree to remove the clause, because having agreed to withdraw with prejudice, he would not be able to bring the same allegations again and removing the clause would be prevent him from seeking a remedy if the Landlord did not comply with the agreement. This is not the email of a party that felt coerced into the agreement. Rather, the Tenant understood what he was doing and was a willing participant in the proceedings.

19. The Landlord submitted that I should not grant the request in any event because the Tenant did not comply with the agreement by withdrawing the application. As such, it would be an abuse of process to permit the re-open.

20. The Tenant did not believe he had to take any further action once the agreement was signed. In any event, one clause is not dependent on the other. The basis for granting a re-open is that the agreement has been breached. Having found that it has, the Tenant’s request must be granted.

21. Finally, the Landlord submitted that if the Tenant had withdrawn his application with prejudice as agreed to in the settlement, the re-open request could not proceed because there is nothing to re-open. This is not the case. An application resolved by mediation is closed in any event. This has no effect on filing a request to re-open. In any event, the right to request re-opening exists whether or not the agreement provides for the re-opening of the application.

TSL-06283 (Re), 2007 CanLII 80064 (ON LTB)

1. The Tenant’s spouse testified that the Tenant was surprised when he found out that the Landlord had filed an application against him, because he did not receive the Notice of Termination (N4). They contacted a Legal Clinic for assistance.

2. In early October 2007, the Tenant’s representative at the Clinic contacted the Landlord’s agent, LP, who looked into the matter and indicated that the application had been filed in error, as the Tenant was not in arrears. The Landlord’s agent, however, refused to withdraw the application until the day of the hearing.

3. Contrary to Rule 17(4), the Landlord did not promptly notify the Board of the withdrawal of the application.

4. In accordance with subsection 200(4) of the Act, I consent to the withdrawal of the application.

5. The imposition of a fine is not appropriate under the circumstances. Nonetheless, the Tenant is entitled to an award of costs.

SWT-43764-13 (Re), 2013 CanLII 13970 (ON LTB)

1. Upon being informed that his application contained insufficient details for the Landlord to know the case he had to meet, the Tenant sought to withdraw the application rather than seek permission to amend the application.

6. The Tenant failed to take reasonable steps such as obtaining competent assistance before commencing a legal proceeding, serving the application to the Landlord and attending on time at the hearing site. The Tenant’s conduct in the proceeding was unreasonable and caused the Landlord undue expense and delay. The Landlord is entitled to some costs.

7. Keeping in mind the Tenant’s circumstances and the principle of access to justice, the appropriate amount of costs is $50.00, with interest accruing if the full amount is not paid by March 15, 2013.

TNL-87995-16 (Re), 2017 CanLII 142697 (ON LTB)

11. On May 8, 2017, the Landlord’s representative contacted the Board by letter that their client had been admitted to hospital and was in intensive care and a further adjournment was required. The Board consented to rescheduling the matter. I determined this qualified as an ‘exceptional circumstance’. The Tenant’s representative did not consent to the adjournment but indicated that as the matter had been adjourned, it should be rescheduled for September 12, 2017. The matter was ultimately rescheduled for November 22, 2017.

12. There is insufficient evidence to find that the Landlord is responsible for the delay in these proceedings. The adjournments/rescheduling were either on consent and/or due to medical issues. This is consistent with the reason given for the Landlord ultimately deciding to withdraw the application. The reconvened hearings were scheduled in accordance with the dates provided by both parties. There is also insufficient evidence to find that the application was frivolous or vexatious as I am unable to conclude that the application was without merit.

13. I am satisfied, however that the Landlord did not give the Tenant sufficient notice of their intention to withdraw the application. There was no explanation as to why their intention to withdraw was not communicated to the Tenant before the eve of the hearing. The Landlord’s conduct caused the Tenant undue expense in preparing for the hearing. As such, I find that the Landlord’s conduct was unreasonable and warrants an award of costs.

14. Based on the evidence and submissions before me, I find that the Tenant’s representative justified costs in the amount of $200.00, representing two hours of preparation time for the hearing on November 22, 2017, at $100.00 per hour (the maximum hourly rate permitted by Rule 27).