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.

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.