Request to Re-Open an Application

Statutory Basis

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

194 (1) The Board may attempt to mediate a settlement of any matter that is the subject of an application or agreed upon by the parties if the parties consent to the mediation. 2006, c. 17, s. 194 (1).

(2) Despite subsection 3 (1) and subject to subsection (3), a settlement mediated under this section may contain provisions that contravene any provision under this Act. 2006, c. 17, s. 194 (2).

(3) The largest rent increase that can be mediated under this section for a rental unit that is not a mobile home or a land lease home or a site for either is equal to the sum of the guideline and 3 per cent of the previous year’s lawful rent. 2006, c. 17, s. 194 (3).

(4) If some or all of the issues with respect to an application are successfully mediated under this section, the Board shall dispose of the application in accordance with the Rules. 2006, c. 17, s. 194 (4).

206 (1) Where a landlord has made an application under section 69 for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 59 or an application for payment of arrears of rent, or both, the Board may make an order including terms of payment without holding a hearing if,

(a) the parties have reached a written agreement resolving the subject-matter of the application;

(b) the agreement has been signed by all parties; and

(c) the agreement is filed with the Board before the hearing has commenced. 2006, c. 17, s. 206 (1).

(2) In an order under subsection (1), the Board may, based on the agreement reached by the parties, order,

(a) payment of any arrears and NSF cheque charges or related administration charges that are owing;

(b) payment of the fee paid by the landlord for the application to the Board; and

(c) payment of any rent that becomes due during the period in which the arrears are required to be paid. 2006, c. 17, s. 206 (2).

(3) In an order under subsection (1), the Board shall not order that the tenancy be terminated or include a provision allowing for an application under section 78. 2006, c. 17, s. 206 (3).

Material Misrepresentations

CEL-53790-15-RO-RV (Re), 2016 CanLII 52865 (ON LTB)

1. On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

5. This allegation in the request to re-open means the relevant test to be met is that set out in Rule 13.14 of the Board’s Rules. It says:

Either party to an agreement resulting from mediation by the LTB may request in writing that the application be re-opened on the basis that, during the mediation, the other party coerced them or deliberately made false or misleading representations which had a material effect on the agreement.

6. The commentary to this Rule helps explain this test and says in part:

If a party claims that the mediation which resolved the application was affected by another party's coercion or misrepresentation of material facts, the application may be re-opened to review that issue. The first issue at the hearing will be whether there was any coercion, misrepresentation or the furnishing of misleading information.

7. So the issue before the Board on the hearing of the Tenant’s request to re-open was whether or not the Landlord lied to the Tenant or otherwise misled her or coerced her into signing the mediated agreement.

TSL-48654-14-RO-IN (Re), 2014 CanLII 49218 (ON LTB)

2. For the reasons stated below I am satisfied that with respect to the Tenants’ request to re-open it is not appropriate for the Landlord’s Representative to act as both witness and advocate. The request is adjourned so the Landlord may retain alternative legal representation. The Tenants may speak to costs of the adjournment at the hearing of the request for review. I am not seized of the request to re-open.

4. The Tenants’ request to re-open alleges that during the course of the mediation the Landlord’s Representative said to the Tenants that the Landlord had a buyer for the residential complex.

5. The Tenants allege that this statement was a material misrepresentation. The reason they allege the statement is material is because paragraph 5 of the mediated agreement says that if the residential complex is sold by July 31, 2014, the Landlord will pay the Tenants $2,000.00. In other words the Tenants are alleging they signed the agreement because they were led to believe they would be receiving an additional $2,000.00 as a result of the Landlord’s Representative falsely telling them a sale was assured and imminent.

6. What this means is that the Landlord’s Representative will be a key witness with respect to whether or not the alleged misrepresentation was actually made.

7. In addition to being a licensed paralegal under the Law Society Act the Landlord’s Representative is also a licensed real estate agent and acts for the Landlord in that capacity with respect to the Landlord’s attempts to sell the residential complex.

17. I say this because an advocate’s primary obligation is to promote the interests of his or her client, but a witness’s sole obligation is to tell the truth, the whole truth and nothing but the truth to the trier of fact. Where the truth might arguably not assist his client, the advocate witness will be conflicted and presumably feel pressure to tell less than the whole truth. In such a situation not only is the evidence potentially tainted but the giving of it brings the administration of justice into disrepute.

18. Here, the possibility of a financial interest on the part of the Landlord’s Representative in the outcome is yet one more reason why the credibility of his testimony will no doubt be hotly contested. Given the allegations in the request to re-open his credibility as a witness will be a central issue in the proceeding.

CEL-53790-15-RO-RV (Re), 2016 CanLII 52865 (ON LTB)

14. On a request to re-open, a party can allege that an illness or disability rendered them incapable of consenting and ask that the mediated agreement be set aside. Such a basis for re-opening a mediated agreement is not explicitly articulated in the Board’s Rules but it can be done and it has been done.

15. The Tenant here did not allege in the request to re-open that the depression and anxiety she was experiencing made her mentally incapable of agreeing to the mediated agreement; nor does she actually allege that in the request for review. If the Tenant wished to make such an argument it should have been done at first instance and not on review and she should have come to the hearing prepared to present medical evidence in support of the allegation of incapacity. The review request does not include any medical evidence.

16. In other words, the Tenant’s statement in the review request that at the time the mediated agreement was signed she was suffering from depression and anxiety does not support the conclusion that the Board made a serious error in denying the request to re-open.

17. A similar analysis applies to the statement in the review request with respect to the Tenant’s apparently mistaken belief that she needed to enter into mediation and accept the agreement or face eviction.

18. A party to a mediated agreement can request re-opening if the agreement was entered into as a result of coercion. The Tenant’s belief that she was at risk of eviction when it is more likely than not the application for eviction would have been dismissed following a hearing, does not constitute coercion by the Landlord.