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

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.