Dr. Lilian Ma 25 January 2010
Office of the Chair – Landlord and Tenant Board
Reference: File Number :
Letter to Mr. Garry McCormack-Manager of Mississauga Central Landlord and Tenant Board 7 January 2010
Dear Madam Chair
I am writing to you today as a Landlord and in the form of a complaint with regards to all proceedings, actions/inactions thus far with the Landlord and Tenant Board, (LTB), regarding my case referenced above. Of specific concern are all of the events that have just occurred during my recent hearing on the matter, heard 21 January 2010 at the Barrie location.
My letter to you will be in the form of a chronological order of complaints, as events occurred, from beginning to present, and not in order of priority or importance. In an effort to keep things as simplistic as possible, I will not repeat in this letter to you my original complaints to Mr. Garry McCormack, however I will make reference to them and attach a copy for you. I would ask that you address all these concerns, particularly the items not done so by Mr. McCormack, as if I had originally submitted these to you. Please note that to date I have yet to receive a response to any of my concerns outlined in my 2nd letter to Mr. McCormack, dated 11 Jan. 2010. The only item that had been addressed, to some degree of satisfaction, was in the form of a telephone call from Mr. McCormack on 7 Jan. 2010 in regards to my original complaint of the same date. It was the events surrounding the rescheduled hearing and why I was not informed until 2 ½ hours after the hearing began. After considerable persuasion on my behalf to both Mr. McCormack, as well as an unsuccessful attempt via a telephone call to the LTB toll free number, I finally received the “Call Centre and Counter Policies – Issue #3”, that deals with procedures surrounding a request for reschedule for H1N1 or other serious illness. As Mr. McCormack admitted to, and the policy states, the LTB clearly violated its own policies and procedures when dealing with such a request. This becomes even more inexcusable, particularly when you consider the fact that the request for reschedule had been received a full 24 hours prior to the hearing. As to why one of the two named parties could not attend the hearing, or any of the other alternatives outlined in this LTB policy was not enforced, still remains unanswered, and a mystery to me. With respect to providing proof of H1N1 or other serious illness for reschedule purposes, this was attempted to be addressed by the LTB during the Pre Hearing Telephone Conference scheduled for 12 Jan. 2010, in which the other parties failed to appear once again. I will further elaborate on this issue later in my letter. There is yet another issue of considerable importance, which I had not complained about on either one of my letters to Mr. McCormack.
When I had originally filed my application, it was requested at the time that the “Notice of Hearing” package is sent to me via regular mail, because Faxes of copied legal documents can often be difficult to read, and with consideration that they also have to be served to the other party. Three days after filing my application, the LTB faxed the package to me instead of the requested mail, most pages where indeed difficult to read as I had expected, and in addition, one of the tenant’s names had been misspelled on the Notice of Hearing. These simple mistakes could have been extremely costly and time consuming for me, had I not noticed. To correct this I was required to take further actions by calling the LTB, which in my experience, can often result in a long telephone delay while on hold, and often dealing with a LTB representative that is less than friendly or co-operative, leaving me with the thought as if I had interfered with their coffee break.
The remainder of my letter of complaint relates to the events surrounding the rescheduled hearing on 21 Jan. 2010. The other party had not arrived at the hearing until 20 minutes past 10 o’clock am. We had also arrived late at 15 minutes before 10 o’clock am, for reasons of car breakdown on route to the hearing, in which I have complete proof of this event occurring. I will attempt to keep this portion of my complaint as brief and to the point as possible. One reason for my need to keep details as condensed and focused as possible is that I strongly urge you to listen to the audio recording from that hearing, as it will most certainly substantiate what I could never fully explain to you in my letter. I have also ordered a copy of the audio recording for my own purposes. In addition, I can honestly tell you that I am left bewildered and in somewhat of a daze, that can only best be described as “what just happened?”
As previously mentioned, the other party neglected to provide the hearing with a reasonable excuse as to why they failed to participate in the pre hearing telephone conference. If I can recall, this is where the hearing began as well as a 3 ½ hour bombardment of fabrications, contempt and rudeness by the tenants and their party to the adjudicator and to us. This hearing can best be described as a chaotic circus which I will continue to discuss with you through out the remainder of this letter.
In accordance with the member’s interim order as previously mentioned above, it should be obvious that the other party has no regard for legal orders what so ever. This was clearly demonstrated by their inability and lack of desire to provide any sort of proof, what so ever, to support their claim for a reschedule. I would have expected this to have had some manner of a negative impact to the tenant, and to at least some degree, dictate the remainder of the proceedings. I would also have expected that this violation of the adjudicator’s interim order be an important contribution to their final decision. I feel that neither of this had, or will have any impact on this case.
The next and perhaps one of the most horrific things that occurred at my hearing is what is known in the landlord community as “Trial by Ambush”. This is, in my experience, a very common tactic and is often advised by the Tenant Duty Counsel to delay an eviction. I am certain that you are aware that “Trial by Ambush” refers to the bringing forward of a maintenance claim, unexpectedly, and on the day of the actual hearing. This occurred with out the proper tenant application and fee payment to the board, which obviously would have provided me with ample opportunity to prepare. I might add that in my particular case, that at no time through out the tenancy, did the tenants advise me either verbally or in writing of any maintenance deficiencies. Only after objecting to the tenants maintenance claims, was I afforded the right to request an adjournment. I had no other choice than to proceed, as an adjournment would only further increase the delays and further increase the financial loss and possible continued damages. As a person in your position can surely appreciate, a delay in an eviction is very often the only real concern of a tenant, particularly those that are supported by social assistance, and know all to well that a landlord can not garnish their support payments. For all intensive purposes this renders any boards monetary judgments useless. I feel that these maintenance claims should only be heard after following proper procedures, and should have never been allowed to hold the current hearing process at ransom. It is also my opinion that an occurrence such as this would be considered an outrage and grounds for an immediate dismissal in any real court of law. The maintenance portion of this “circus” like hearing, as I referred to earlier, continued on for over half the actual time at the hearing, with an unorganized pile of poor quality, unlabelled pictures, as well as a family member as a witness to support these “ambushed” maintenance claims. I might add that the rudeness and interruptions from the tenants and their party, as well as the general lack of control over the hearing process continued to increase. During the entire time that the tenant testified as to the details of their maintenance claim by using his pictures, he stood in front of the adjudicator’s stand, and for the most part whispered to the adjudicator, making reference to his pile of pictures, one at a time, with all of them faced backwards to me. This left me once again at a very severe disadvantage by not fully understanding and following the details of the maintenance allegations as they referred to the pictures. When the tenant’s witness was being cross examined by me, the hearing quickly changed from a “circus” to complete and utter chaos. I was interrupted every few moments, the witness constantly trailed off from the questions, and at one critical point, the tenant had interrupted and dismissed the witness from the stand, Upon his return to the stand, he took over the remainder of the cross examination process in a manner and with testimony on matters that where not being questioned and in a way that appeared that this witness was in actual fact the tenant. It should have been quite obvious that this witness was coached on all matters through out the 9 month tenancy, particularly since we had never met prior to the hearing and has no possible knowledge of much of his testimony.
In my next point, I would like to draw your attention to the LTB’s, Principles of Member Conduct, specifically principal #5, “A Member will endeavour to conduct all hearings expeditiously, commencing at the appointed time and preventing unnecessary delay, while ensuring that all parties have a fair opportunity to present their evidence and argument.” Keeping in mind the rescheduled hearing as previously discussed, my case was scheduled for the morning block on 21 Jan. 2010, as I would have expected. I would also have expected that we would have been one of the first to be heard, given that the LTB had previously admitted to not following there own procedures, resulting in my unnecessary waste of time at the original hearing. My actual case began to be heard at approximately 1:45 in the afternoon, well after the entire morning block had come and gone, after the lunch break, and after the entire afternoon’s docket had been cleared or heard. In addition to this, at about 4:55 pm we felt rushed and compelled to end the hearing process, as the audio recording will substantiate. We now assume that at 5:00 pm is quitting time, no matter what. Thinking that we should be heard first and ultimately were heard last, and then cut short, leaves me in such utter disbelieve and disgust that it would be almost impossible to describe to you. I will endeavor to predict a possible reason that one in your position is likely to offer as some degree of justification for this. It is the notion that all tenants, (not landlords), aside from income earnings, be afforded free Tenant Duty Counsel time, prior to, and on the same day as the hearing. This is the scenario no matter what the case load is for the day or how busy the Tenant Duty Counsel is as a result, the fact that they arrive late for the hearing in the first place, and aside from the common sense that one should seek legal advice well before any court proceedings. Some of these and the remainder of my Tenant Duty Counsel concerns will be addressed with complaints to the Law Society.
The remainder of my complaint to you will be with my admittance that I am not fully certain as to the adjudicator’s final decision on all matters or when it will be available. This is obviously due to all the factors commented on thus far, and once again leaving me with the question, “so what just happened?”
In regards to the N4 & L1 portion of my hearing, and only the application to evict portion, I believe that the adjudicator has, or will rule for an eviction date of 28 Feb. 2010, that’s an additional 5 ½ weeks. This is above and beyond the 2 weeks they basically gave them selves through the rescheduling loop hole in the system. Keep in mind that they where originally served the N4 application because of $555.00 in rent arrears back before 12 Nov. 2009, and I provided them with an additional 23 days, (only 14 where required by law), and since then, no further regular rents have been received. The tenants came to the hearing without a single dollar to show any form of good faith or to mediate with, in that alone, even the most compassionate of adjudicators should not find any leniency. To give the tenants this additional time, and under these circumstances is well beyond a “typical eviction order” and an absurd abuse of the spirit and intent of the LTB’s, Interpretation Guideline #7. The remainder of the N4 and L1 application, being the order to collect rent is a mystery to me. Since this was never disputed by the tenants, one should surely expect a ruling in one’s favor? Keep in mind that these people are on social assistance and in reality I will never see a nickel, just like their previous landlords, just prior to me, that have lost thousands of dollars in rent arrears and damages.
In regards to the N5 & L2 portion of the hearing, “the interfering with landlords rights or reasonable enjoyment”, and in particular to the massive outstanding water bill and subsequent disconnection of utilities, this was ill advised to pursue by the LTB information telephone number, and appears to have been already paid again by social assistance people. My claim for damages on the above noted forms also remains a mystery to me. In fact it should be said that any monetary decisions on all matters including the tenants fraudulent maintenance claim, appear to have been left undecided, perhaps for closer examination. It does however feel that little if any regards for our financial situation are or will be considered. All rents that remain delinquent by these tenants have had to come out of or own pockets, and this will continue to be the case until they are actually evicted from the premises. It is important to note that well before any hearing we have been left with no other choice but to put the house up for sale. This can easily be proven by a simple address search on the mls.ca website. I predict that after this ordeal is complete, we will be selling the remainder of the other 3 rental units as the tenants decide to terminate on their own, or things in the system continue to spiral out of control. I am personally aware of many small landlords that have, and will continue to sell their affordable housing investments for the same reasons as myself.
To further support my opinion on this hearing I would like to point to 2 additional Principles of Member Conduct, specifically principal #6, “A Member will conduct a hearing in a firm but courteous manner and should likewise require courteous behaviour from hearing participants. The Member will promote mutual respect among hearing participants, and will not allow unprofessional, sexist, racist, ethnocentric or inappropriate religious comment or contemptuous conduct.” and principal #7, “A Member will permit parties and agents to present their evidence and arguments without undue interruption from other participants or the Member him / herself.” Please allow me to be honest with you by assuring you that I have, in no way, any vendetta against this adjudicator. In fact she appeared through out the day to be one of the better ones that I have had the pleasure of doing a hearing with. However, it remains a simple fact that partially due to the tenant parties’ extreme behavior, that I feel my rights to a fair trial have been violated. I’m certain that the audio tapes will substantiate this claim.
I have subsequently listed here the majority of issues as they mostly apply to my particular case only. I have numerous additional issues with the Residential Tenancy Act as well as the Landlord and Tenant Board that I feel require intensive review. I am currently addressing these issues through other means, including but not limited to the Ontario Ombudsman’s Office.
In closing, I would like to thank you in advance for taking the time to review my complaints. I urge you to please take them as serious as I do, and I anticipate that you may be able to address these issues as quick as possible in an attempt to provide for some sort of damage control.
Sincerely,
XXXX XXXX
(Home) XXX-xxx-xxxx
(Fax) XXX-xxx-xxxx
