Ombudsman Report – ADMINISTRATIVE JUSTICE DELAYED, FAIRNESS DENIED

The Ombudsman report came out recently and it was quite an interesting read.   His findings were nothing we were not all already aware of.

“Accordingly, I have concluded that the conduct of the Landlord and Tenant Board, and Tribunals Ontario is unreasonable under s. 21(1)(b) of the Ombudsman Act.[2] I have also found that the Ministry of the Attorney General’s conduct relating to the appointment process for the Board is unreasonable under the Ombudsman Act.”

I do find that the word “unreasonable” a little light handed but then again the title of the document is “Administrative Justice Delayed, Fairness Denied” which is a better description of what is happening.  The ombudsman went through the processes and procedures and had 61 recommendations,

”Three focus on legislative change: One to eliminate potential reduction of adjudicative capacity connected with elections, another to provide the Board with greater authority to address delays in the issuance of orders by individual members, and one to extend the time provided to members whose terms are expiring so they can complete matters they have already heard. I have also recommended that the government support efforts towards the Board maintaining an adequate complement of adjudicators, and implementing a strategy to reduce the backlog as soon as possible. “

The report is over 100 pages long and includes a 30 minute video press release.  Here are some of the points that I found interesting:

• “As of February 2023, landlord applications were generally being scheduled for hearing within six to nine months of receipt, and tenant applications could take up to two years to be scheduled.”
• “Tribunals Ontario also saw a spike in complaints about Board delays, and its 2018-2019 annual report contained data showing that the Board had not consistently met its own service standards since 2017. At the time, Tribunals Ontario attributed delays primarily to a shortage of adjudicators.”
• “In the wake of the surge in complaints, and in light of the real human impact resulting from Board delays, I determined that an investigation was warranted. On January 9, 2020, my Office notified Tribunals Ontario, the Board, and the Ministry of the Attorney General of my intent to investigate whether they were taking adequate steps to address delays and case backlogs at the Board. The investigation was assigned to our Special Ombudsman Response Team (SORT).”
• “In the weeks and months after the investigation was announced, our Office received more than 4,000 additional complaints from landlords, tenants and stakeholders, including Members of Provincial Parliament. We worked diligently to resolve these cases and factor any relevant issues into our investigation.”
• The report includes some very sad stories of peoples lives from paragraph 35 to 46.
• “At the outset, we were told that the primary contributing factor was a dire shortage of Board members. By October 2019, there were 19,000 applications pending at the Board. By March 31, 2020, that number had risen to 22,803.”
• “The Board is one of the busiest tribunals in Ontario. It received more than 82,000 applications in fiscal 2018-2019 and almost 81,000 in 2019-2020. In order to have no backlog, the Board must resolve more than 300 applications per working day. At times, the COVID-19 pandemic affected the volume of applications. For instance, in 2020-2021, the Board received just over 48,000 applications, significantly fewer than it had received pre-pandemic. In 2021-2022, it received 61,586 applications.”
• “In November 2019, the Board had 33 full-time and seven part-time members available to adjudicate applications. This was not only considerably less than its dedicated complement of 40 full-time and 10 part-time members, but many members’ terms were due to expire. In March 2022, that number had increased to 41 full-time and 37 part-time members. Tribunals Ontario explained that its roster could be supplemented with additional part-time adjudicators. Some part-time and full-time members are cross-appointed to several tribunals. Members who are cross-appointed are assigned a “home tribunal.” They work from their home tribunal unless that tribunal agrees to lend them out to work somewhere else.”
• “By summer 2022, the Board had an authorized complement of 44 full-time members and 37 positions had been filled. There were also 50 part-time members. As of January 2023, that number had declined. There were 35 full-time members and 43 part-time members. Of this total, two full-time and nine part-time members were cross-appointed to other tribunals. Six of the 11 cross-appointed members were assigned to the Board as their “home” tribunal. The remaining five were attached to another tribunal, which determines how much time they can spend working for the Board.”
• The report thoroughly goes through the appointment process and where it could be improved. It speaks about the length of terms and how they are handled when they are about to expire.  Recommendations are made throughout the report with ways to rectify the problems.  As there are 61 recommendations, I will leave the “what is going to be implemented” for the next blog.
• “Not every provincial election ushers in a new government with the potential to impact the timing and number of appointments to adjudicative tribunals; prior to 2018, there had not been a change of government for 15 years. In the case of the Board, the 2018 transition between governments contributed to a significant reduction in the members available to adjudicate applications, resulting in considerable delays. Those delays negatively affected the lives of tenants and landlords in the province in a variety of ways. To prevent a situation in which an election, combined with a transition to a new government, compounds delays in appointments to the Board, the province should consider amending the Residential Tenancies Act, 2006 to include a provision ensuring adequate adjudicative coverage for a reasonable period buffering a provincial election.”
• The report also dove into the length of terms for the Members and the training that they are receiving and recommended that there be some sort of consistency.
• The next section of the report dealt with technical challenges. It spoke about the ever changing technology that it used and all the problems that I endure everyday and I am sure you do too.
• The report addressed some of the problems regarding:
  • Receipt and screening of applications – “An internal report from November 2021 indicated that the average time for an application to be entered was 5.8 days, with about 25% taking two weeks.”
  • Fatal Errors – This has always been an issue for self-representative and even people like me (we make mistakes too!).  We get to the hearing and realize that there was a mistake and we have to start all over again, and now, that is months and months after waiting! The report recommends, “The Landlord and Tenant Board should establish a consistent and thorough screening process for early identification of errors to ensure applicants have an opportunity to remedy them prior to scheduling a hearing.”  Wouldn’t that save a lot of time, for the hearing blocks (same people having two hearings!) and for the poor people who are struggling to pay their mortgage.
  • Scheduling of Hearings – “Prior to our investigation, the Board had set a standard that it would schedule applications to evict tenants and collect rent owing within 25 business days of receipt. In fiscal 2020-2021, not a single application was heard within the time set by the Board’s standards. The average time from receipt of application to hearing was 72.7 days. The situation had improved somewhat by November 2021, when the average time was 66.5 days – but this was still more than double the standard.” This so wrong!  I wish I was only waiting 66.5 days.  We are at our best yet in years and I am still waiting about 120 days.
  • Blacklog of Hearings – “In the fall of 2022, the Board was still trying to catch up with the backlog. Some pre-pandemic applications had still not been scheduled for hearing, such as the Above Guideline Increase applications. By October 2022, the Board had an inventory of approximately 1,800 of these applications in its legacy system, several dating back to 2018. Beginning in November 2022, it began to schedule and prioritize the clearing of these applications, aiming to clear up all the remaining applications in its legacy case management system by the end of the year. However, scheduling of other cases was placed on hold, leading to additional backlogs of unprocessed matters. “
  • Expedited Hearings – “Recommendation 17 – The Landlord and Tenant Board should revise its operational procedures concerning requests for expedited hearings to include reference to the standardized response to be used by staff in replying to individuals who have not used the Request to Extend or Shorten Time form.” “ In addition to procedural issues regarding requests for expedited hearings, some complained to us about the quality of the decision making process. Several individuals told us they couldn’t understand how the Board had determined their situations were not urgent. We also reviewed many cases in which it was unclear to us how the Board was applying the standard of urgency, or how the specific circumstances did not meet this standard.”
  • Hearings – The report goes through the number of cases on a docket, the time spent on each case, rescheduling of hearings and technical glitches for participants and help that they can seek. Again, all of which I am sure we have experienced.  The Board has been working on these issues.  They recently announced a new helpline if you cannot get onto a hearing and I, personally, have experienced lesser number of matters on a block of time.  We can cross our fingers that these changes will allow for efficiency.
  • Orders – “As of May 4, 2022, the Board updated its service standard webpage, indicating that orders were “taking approximately 30 days for hearings related to applications to terminate a tenancy for non-payment of rent and to collect rent and approximately 60 days for other application types.” As of May 31, 2022, there were 852 orders that had been pending for over 60 days. One order had been outstanding for 538 days, and another for 300 days since the hearing.”
  • The report also goes into the short falls of other problems like French Services and hearings that need to be heard again because the Adjudicator had left.

The number of sad stories that are used as examples thorough out the report is gut wrenching.  I have had so many of my own clients struggle and I have tried to limit the time and money that they are losing because of this problematic system.  It takes a huge toll on them but it also takes a HUGE toll on us as we have many of you that we try to help daily.

Here are the parting recommendations:

“Recommendation 59 – The Landlord and Tenant Board should report back to my Office in six months’ time on its progress in implementing my recommendations, and at six-month intervals thereafter until such time as I am satisfied that adequate steps have been taken to address them.

Recommendation 60 – Tribunals Ontario should report back to my Office in six months’ time on its progress in implementing my recommendations, and at six-month intervals thereafter until such time as I am satisfied that adequate steps have been taken to address them.

Recommendation 61 – The Ministry of the Attorney General should report back to my Office in six months’ time on its progress in implementing my recommendations, and at six-month intervals thereafter until such time as I am satisfied that adequate steps have been taken to address them.”

And I respect his last thoughts and cry for change:

“I am cautiously optimistic that the planned infusion of adjudicative resources will help the Board provide more timely and efficient services to the public. However, I urge the Government of Ontario to act quickly to increase the Board’s adjudicative capacity and fund the additional staff required to support the new members. Otherwise, given the timelines involved in recruitment and training, the positive impacts of this initiative could be significantly delayed. In addition, as my investigation has revealed, there are numerous problems with the Board’s administrative functioning, some of which will require legislative changes to fix.”