My First Blog Post

Thanks for reading my first blog post.  I struggled with what would be my first post.  I guess it’s like meeting a bunch of people you never met.  The first step is that you introduce yourself.  After that I thought I’d explain why I decided to create this Blog. 

First the introduction.  I’m a lawyer currently carrying on a sole practice in Essex County.  In 1998 I was privileged to be appointed by the Province of Ontario to the newly created Ontario Rental Housing Tribunal in the government’s attempt to make residential landlord tenant matters more accessible.  I served as an adjudicator, and later a Vice Chair of the Ontario Rental Housing Tribunal (now the Landlord and Tenant Board) for more than 9 years before returning to private practice. 

On a general social level there are issues concerning the supply and adequacy of rental accommodation. There are also issues that arise out of the private contractual relationship between a landlord and tenant. The critical nature of housing raises the question of how much the private sector should be regulated by the law.  

During my time with the Board I heard that the Board was biased in favour of landlords.  I heard that the Board was biased in favour of tenants. This alone is not surprising. The issue becomes one of balancing conflicting needs. A good balance of rights and responsibilities in the landlord/tenant relationship can be beneficial to both sides. The law has tried to respond to the tension between competing needs in a way that balances the rights of each side.  I think the current Residential Tenancies Act does a good job at that when properly interpreted and applied. 

But that’s the key.  Everyone is deemed to know the law and bound to obey it.  But what has been done to bring its content to the notice of the ordinary individual?  In 2002 the Advocacy Centre for Tenants of Ontario made the following observations in submissions to the Ontario Ombudsman:

Ontario Rental Housing Tribunal Decisions are Not Fully Available to the Public

There is no public database of ORHT decisions. As noted above, of approximately 90,000 non-default decisions issued by the Tribunal to December 2001, only 289 were available on Quicklaw [a commercial service providing access to legal decisions] as of June 17, 2002, four years to the day after the Tribunal began operations. Further, even the posted decisions are not necessarily consistent with the body of caselaw developed by the Tribunal. The decisions sent by the Tribunal to Quicklaw are simply chosen by individual adjudicators as "significant or interesting" in their own view. It is not possible to assess whether the posted decisions represent current adjudicative wisdom at the ORHT.

A recent ORHT publication, issued in February 2002, provides a summary of "Selected Decisions" from June 17th 1998 to June 30th 1999. It is disappointing that the Tribunal would issue this publication over 2½ years after release of the most recent decision summarized in the collection. Moreover, the 42 decision summaries included represent a minuscule portion of the more than 90,000 non-default decisions issued to date by the Tribunal. If a member of the public wants a copy of the full text of any of the decisions summarized in this publication, it must be purchased from the Tribunal. The practice is to charge a photocopying fee, now at $1.00 per page, for any such request. This should be contrasted with the practice of other tribunals, such as the Office of the Information and Privacy Commissioner and the Workplace Safety and Insurance Appeals Tribunal, that make decisions available free of cost through a fully searchable database on their own websites.

The failure to make decisions fully available to the public is both a highly unusual circumstance and a worrying one. It is a basic principle of the rule of law that the law must be knowable. In addition to the Workplace Safety and Insurance Appeals Tribunal, and the Office of the Information and Privacy Commissioner in Ontario, many other Canadian tribunals, such the Canadian Human Rights Tribunal and the British Columbia Human Rights Tribunal, go to great lengths to make all their decisions fully available and searchable on their own websites.

If we consider labour tribunals across the country, for example, we find that the practice is typically to make all decisions available through publishers and commercial online research services. Smaller Ontario tribunals, such as the Pay Equity Hearings Tribunal, publish all decisions in a free internal publication, in addition to making decisions available through commercial publications and online research services.

It should be acknowledged that thousands of ORHT decisions do not contain legal reasons that can readily be relied upon as persuasive in subsequent litigation. These decisions might possibly be excluded from a database of reasons, although it should be noted that, in the case of the Ontario Labour Relations Board, even ‘boiler plate’ decisions, such as certification orders, are included in the database of approximately 55,000 decisions available through by Quicklaw. Public accountability demands that even orders without persuasive precedent value be available to the public on a searchable basis to allow scrutiny of adjudicative trends (e.g. how often is relief against forfeiture being exercised?) and an outcomes-based analysis (e.g. how often are applications on specific grounds successful?).

But even apart from the need for a decision database to support both litigation and research use, there is another reason why full public availability of ORHT decisions is important. An adjudicative body is responsible for developing a coherent body of jurisprudence. The Ombudsman Ontario has recognized this in its definitional guide, which states that an adjudicative decision may be considered "unreasonable" if it is "inconsistent with other decisions which involve similar facts or circumstances".

The Code of Professional and Ethical Responsibilities published by the Society of Ontario Adjudicators and Regulators underlines this in the following passage under the heading "Decision-Making Responsibilities":

An adjudicator should not ignore relevant tribunal decisions on a question at issue before them. Where previous decisions are relevant and are not followed, the decision must explain the reasons for the departure clearly and respectfully. Due weight must be given to previous tribunal jurisprudence and the need for a degree of consistency in the interpretation of the law.

A tribunal that does not compile a fully searchable and public collection of all substantive decisions is not only not accountable to the public through scrutiny of its decision-making, but cannot be accountable to itself in developing a coherent and internally consistent body of interpretation of its own statute. Such a tribunal is free to be capricious in its interpretation of its statute. At the very least, the ORHT is vulnerable to criticism that it is inconsistent in its jurisprudence and cannot answer that criticism.

This is a strange state of affairs for a Board whose statutory mandate includes providing information to landlords and tenants about their rights and obligations under this Act.  Since this criticism was first written, there has been some movement under the current Chair, but the Board seems to have gotten sidetracked:

·         The Ontario Rental Housing Tribunal began posting summaries of significant decisions [but not the full decision] under the Tenant Protection Act (the predecessor of the current Act).  These were removed, however, when the Residential Tenancies Act (the RTA) came into force, even though many would have still been relevant to an interpretation of the RTA.

·         The Board then started to publish “redacted” orders on its website.  A “redacted” order is an order from which personal identifying information has been removed to protect the privacy of the individuals named in the order (this is being done to comply with the provisions of the Freedom of Information and Protection of Privacy Act). This appears to be one of the major obstacles.  The redaction process is time consuming , and seems to have stopped after two months.  No new redacted orders have been posted past February 2009.  Of those decisions published, there is also no effective search function on the Board’s website.  You are forced to wade through decision after decision (many of which have no real value at all) in the slim hopes of finding something which may be more than a template decision or a record of an agreement of the parties. 

·         The Board has also posted a series of selected decisions here.  These are duplicated on theCanLII website (CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII's goal is to make Canadian law accessible for free on the Internet), but all this also appears to be short lived.  In 2009 only 17 decisions were posted, and none since June 2009.  You can visit the Board's database here.  This represents far fewer than even the number of redacted decisions posted on the Board’s own website, but it does provide a better search function. It is not clear why the redacted orders posted on the Board’s website do not appear on CanLii, which has an enhanced search function. 

So I decided to start this Blog in the hope that it will be a useful spot to report developments in Ontario Residential Tenancies Law.  If you have anything you would like me to discuss, please contact me. If you have copies of decisions of the Landlord and Tenant Board you might want to share, send them to me.  I can't guarantee that they will all find there way into the Notebook, but I will try to update my notebook regularly. 

And please keep in mind that this Blog is not intended to be a substitute for legal advice regarding your particular situation.