Withdraw of an Application (LTB)

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threatened or interfered with the tenant during the tenant's occupancy of the rental unit in which case it cannot be withdrawn without the consent of a Member or DRO.

17.2 Where an application is being heard in writing, it may be withdrawn without consent at any time before the day on which the applicant's written submissions are due.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 After an oral or electronic hearing begins the application cannot be withdrawn without the consent of the Member or DRO.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.