Dan McIntyre is a paralegal with more than 30 years’ experience with landlord and tenant issues. He shares his tenant-representation experience with SCOPE readers.
I represent tenants at the Landlord Tenant Board. That is not easy or lucrative. No tenant wants to be at the Landlord Tenant Board. They are there because they are threatened with eviction or a rent increase above the guideline or they have a landlord who is not maintaining the apartment or otherwise interfering with the reasonable enjoyment of the rented premises.
I do not often represent tenants facing eviction because if they can’t afford the rent, they can’t afford my reasonable fees. I do cases where the landlord has miscalculated the lawful rent, or is trying to evict on a claim that they want to live there themselves or is claiming that the tenant did something unlawful. I have never advised a tenant to not pay the lawful rent – but sometimes the amount is in question.
Under section 82 of the Residential Tenancies Act a tenant can withhold rent if they have a valid claim against their landlord. Landlord advocates often claim that this section is ripe for abuse. They use the inflammatory phrase “trial by ambush” – but that won’t happen if the tenant has a licensed paralegal – and it won’t succeed if the landlord has been living up to their lawful responsibilities.
Then there are corporate landlords who have been taking compounding increases year after year, and then they spend major dollars on sometimes long overdue work on their buildings and then want to pass those costs on to the tenants with rent increases well over the guideline. This is with the regulatory approval of the Ontario Government notwithstanding these times of austerity.
Mitigating and Negotiating
In representing tenants in response, we look for ways to mitigate the claim by finding any flaws in the application or by negotiating a settlement to try to save the tenants some money. The vast majority of cases are resolved by negotiating a settlement.
The toughest part of the paralegal job is lowering expectations. In Canada, we expect our laws to be fair and balanced. Yet, the Act gives absolute zero consideration to the economic status of tenants or the hardships or unfairness a rent increase may cause. I always start by clearly explaining to my clients the potential of the landlord application – and not a fairy tale, that the Board will listen to counter balancing arguments.
Even tougher is helping tenants in situations where the landlord is neglecting maintenance responsibilities. First, there are six types of tenant applications – and that is five too many. Lord help you if you choose the wrong application type. In some cases you need to use two or three of the applications.
I have long advocated for a one-form system with multiple check off boxes. The Board does not investigate tenant claims – it requires the tenant, through their paralegal or on their own, to follow legal processes that are subject to landlord advocate defense tactics.
Tenant Applications Languish
Last year, I was retained by multiple tenants in a Toronto highrise. Sixteen months later, the case has still not been fully heard. It looks like it could be several more months. Eviction hearings and other landlord applications are dealt with much more expeditiously. The Board has policies and procedural practices which move landlord cases along – but they have no such procedural practices that would allow tenants to have their cases heard expeditiously. After all, the vast majority of applications are from landlords.
I advocate the following fair principle. A tenant who is not getting what they pay for (and rent pays for maintenance) should be able to get justice as quickly as a landlord who is not receiving their lawful rent. That is not the case. Oh yes, I have heard the bleatings of landlords about taking forever to get rid of a non-paying tenant. Nonsense, if you know your business. You can start proceedings the day after the rent is late, apply for a hearing two weeks later and get a hearing two or three weeks after that. Meanwhile with the threat of eviction, the tenant is motivated to come up with the rent or a re-payment plan.
On the other hand, the landlord can stall and stall on maintenance and are only at any risk if a tenant is sophisticated and capable enough to take the matter to the Board and navigate the perilous shoals.
Tenant Turmoil Unabated
Another problem for my clients is living through a period of time where the landlord is renovating the building and the building is a construction zone with jackhammers going for hours. Section 8 of Ontario Regulation 516/06 gives tenants little hope of succeeding on a claim of interference with reasonable enjoyment — and I know of no landlord who has voluntarily reduced rent while the tenants live in turmoil.
Recently, the Law Society had a CPD about the RTA. All of the numerous presenters represent landlords. No balance at all. At the recent Paralegal Society of Ontario event, Harry Fine, who represents landlords, presented his views on the RTA. Harry presents very well, but make no mistake his butter and his bias are on the side of landlords.
Landlord representatives even assail well thought-out decisions of the higher court – while quietly benefitting from cases such as Scott Burton et al v. Leadway, and recent decisions favouring landlords concerning smart meters and rent abatements.
For example, landlords decry the case of Price v. Turnbull Grove. This case establishes one principle. If you want to raise your price you must give a proper legal notice to the tenant-customer. Is that too much to ask? It was also suggested that tenant paralegals could use this decision to solicit cases and go after innocent type landlords who did not give proper notices in the past. Again, no licensed paralegal can or will do this. I won’t. However, if there are other issues caused by the landlord – I will certainly give consideration to the application of this case.
I am quite willing to discuss giving a presentation from the tenant perspective. I am also quite willing to sit down with new or prospective paralegals to discuss advocacy for tenants. You buy the coffee.
Landlords who follow the law have nothing to fear from me or from tenants. Unfortunately, landlords who do not follow the law often have nothing to fear either. That needs to change.
Read more about Dan McIntyre Paralegal and Consulting Services at his website. He can be reached at 416-907-9085.