Is the Landlord and Tenant Board’s ‘digital first’ approach leaving Ontario renters behind?

In response to COVID-19, the board shifted to phone and online hearings — and advocates say that jeopardizes access to justice for vulnerable tenants
By Mary Baxter - Published on Jan 22, 2021
Ashtynn Cairney, shown here with her two-year-old daughter, Lilah, received a notice of eviction in November 2020. (Courtesy of Ashtynn Cairney)

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WALKERTON — The Landlord and Tenant Board notice arrived in Ashtynn Cairney’s email at 2:15 p.m. on November 8. The 28-year-old single mother had gotten behind on her rent, and, the message said, her landlord was moving to evict her from the two-bedroom apartment in Walkerton. A video hearing to adjudicate her landlord’s request would be held December 4. The LTB advised her to check her junk-email folder often — and noted that she could expect to receive a paper copy of the notice by regular mail.

The notice didn’t arrive until the day before the hearing, four days after the board’s deadline requiring Cairney to file any digital copies of the documents she planned to use as evidence. The stamped envelope lacked both a date stamp and a return address. “I thought it was just, like, a package from Amazon or something,” says Cairney, who is unemployed and receives social assistance. “I’m glad I check my emails regularly or else I would’ve been totally screwed.”

The board introduced the use of digital hearings, held by telephone and videoconference, in August to accommodate COVID-19 safety restrictions and to speed adjudication of both the backlog of cases from five months of suspended operations and the influx of new cases after a province-wide ban on evictions was lifted in August.

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In September, Tribunals Ontario announced it would continue to embrace a digital-first approach to hearings for all 14 adjudicative tribunals it represents — conducting video, telephone, and written hearings “where feasible.” “It’s important that the services we provide are accessible, efficient and effectively meet the needs of the thousands of people who access our tribunals,” Sean Weir, executive chair of the provincial agency, said in a news release. (The tribunal declined TVO.org’s request to interview Weir.)

Representatives of legal-aid and renter-advocacy services, though, say that this approach jeopardizes access for vulnerable populations in Ontario’s rural and remote communities — and others across the province who live on low incomes and don’t have internet access. “There are lots of smaller communities and rural areas where internet service, cell-phone service, is not really adequate,” says Kenn Hale, director of legal and advocacy at Advocacy Centre for Tenants Ontario. “And if this is the only way that people are going to be permitted to participate in a legal proceeding that determines whether they’ll have a place to live or not, it is really concerning.”

Seana Moorhead, executive director of Grey Bruce Community Legal Clinic, says that, for the 31 cases heard in her region in November, 17 tenants — or 55 per cent — were no-shows; the no-show rate for the province is 22 per cent and for the GTA, 18 per cent. Her organization represents, on average, a third of the tenants in the area that appear before the board. She says that, since hearings went digital, the clinic’s no-show rate has been more than 90 per cent. 

“It is really alarming,” she says. “We had one that we know the person didn’t show up for because he didn’t have a phone … So, of course, we can’t call him and say, ‘Hey, you have a hearing,’ because he doesn’t have a phone.”

a smiling woman sits at a desk
Seana Moorhead is the executive director of Grey Bruce Community Legal Clinic. (Courtesy of Seana Moorhead)

Jamie Hildebrand, executive director of the Huron Perth Community Legal Clinic, says that one of his clients, who had neither landline nor cellphone access, had to call into his hearing from a pay phone. “He was outside, and he was cold,” Hildebrand says. “And as the hearing kept going on, it got colder and colder, and it started to rain really hard. I could hear these noises in the background. It’s the guy shivering.” Forty minutes into the hearing, he says, his client swore and said, “I can’t stand it; I can’t stay” and hung up.

Submitting documents has also emerged as a significant challenge. Provincial laws allow people to raise issues around maintenance or harassment on a rent-arrears application, Moorhead says. Pre-pandemic, tenants could simply bring their documents to the hearing. Now, they must give the board and the landlord seven days notice of their intention to file them, and file them in advance. “If you don’t have access to technology and the knowledge on how to scan documents, submit documents electronically, it creates a real barrier to try to get those things in time to meet those deadlines,” Moorhead says.

Cairney says that, while she managed to file her 75 pieces of evidence on time, when she dialled into the hearing on her cellphone the morning of December 4, she discovered that the adjudicator hadn’t received anything she’d sent. She tried submitting again, and when that didn’t work, her lawyer, who also had copies of the documents, sent them.

The hearing process was “horrible,” she says. Her case was one of 10 in the adjudicator’s hearing block for that day. Initially, her case was scheduled to be heard first, but the adjudicator postponed it so the documents could be refiled. “And then we have issues with people unmuting themselves and interrupting the judge or interrupting your case, then the judge has to mute everybody,” she says. In one of the hearings she listened to while waiting, she says, the adjudicator took to task a person trying to speak on behalf of a renter whom the person said was disabled and unable to understand the hearing. “And [the adjudicator] was like, ‘third parties are not welcome. You will be muted and you will be removed,’” Cairney says.

A spokesperson for Tribunals Ontario tells TVO.org via email that, once pandemic restrictions have been lifted, the board will consider requests for in-person hearings on a case-by-case basis “to ensure access to justice for those who require accommodation under the Human Rights Code or to ensure procedural fairness.” The digital-first approach, however, will remain the priority: “If a party to a proceeding believes that they were not reasonably able to participate in their hearing they may file a request to review the order with the Landlord and Tenant Board,” which could lead to the determination that a new hearing is needed.

Ena Chadha, chief commissioner of the Ontario Human Rights Commission, says a lack of access to the internet involves human-rights considerations: “We have to understand who we are losing in this new [digital] world.”

Chadha says she’s discussed the issue with officials at the Ministry of the Attorney General to explore potential solutions. She’d like to see timelines extended, people provided with additional reminders, more support-duty counsellors or advisers made available, and a greater emphasis on alternative dispute resolution.

She and others point to the approach used by the Social Security Tribunal of Canada as a potential model post-pandemic. The federal tribunal provides people with video access at local Service Canada centres. (Such access has been suspended during COVID-19.)

For her part, Cairney consented to terminate her tenancy at the hearing. The agreement reached between her and the landlord allowed her to stay in the apartment until the end of the year. According to the adjudicator's consent order, the eviction would have been enforceable had Cairney not left at the agreed-upon time.

In January, Cairney returned to her parents’ home near Arthur. “It’s super-crammed,” she says, adding, “It’s better than the streets or my car.”

Correction: An earlier version of this article incorrectly stated that a Landlord and Tenant Board adjudicator had ruled that Ashtynn Cairney's landlord owed Cairney money. That statement has been removed. TVO.org regrets the error.

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