Is Case Law Important at the Ontario Landlord and Tenant Board?

What is case law?

Law we are most familiar with comes to us by way of legislation (statute), but of at least equal importance, is case law - or common law - which refers to the body of legal principles established by previous decisions of court and tribunal cases. Statutes are often written in broad terms, and their interpretation can be unclear in new cases with unique facts and circumstances. Case law helps fill in these gaps by defining and interpreting statutes based on the facts of a specific case. As decisions on new cases are made, the body of precedent grows, reflecting changes in society, attitudes, and values. Written decisions from adjudicators and judges affirm, overturn or alter earlier rulings. Common / case law constantly develops, albeit usually slowly, as courts hear new cases.

Why is case law important?

Case law operates on the basis of a legal principle known as "stare decisis," which is a Latin term that means "to stand by things decided." Case law provides precedents that promote consistency and fairness in the administration of justice, where circumstances in a matter are similar. Legal professionals, or self-represented parties, rely on case law as a guide to interpret statutes, build arguments and predict how courts will rule in particular cases. Similarly, judges rely on case law to ensure their decisions align with established legal principles.

The most important decisions are those that come from a court higher than the tribunal or court in which your case will be heard. For example, although prior decisions of the Landlord and Tenant Board ('LTB') itself are important, decisions of Divisional Court, based on a similar fact scenario or involving similar legal principles, are even more compelling guides. If case law precedent is not in your favour, you will need to argue how the facts in your case are "distinguished" or different enough, such that the same decision would not be relevant or fair.

Where do I find case law for my case at Ontario's Landlord and Tenant Board?

CanLII, the Canadian Legal Information Institute, is a non-profit organization and is the major source of online common law in Canada. It is free of charge and available to anyone. By far, it does not contain all case law. Unless you know the name of the case you are searching for, the database can be searched by Document Text in the way you would search Google. For example, you can input "notice of entry" and CanLII will generate over 87,000 cases. You can enter "notice of entry Ontario Landlord" and the list will be pared down to approximately 3,000 cases. You can narrow your selection further by adding "realtor" to "notice of entry Ontario Landlord" and you will get a more workable and perhaps relevant list of 119 decisions, if a realtor was a relevant factor in your Ontario case involving notice of entry as a contentious issue.

LTB-only decisions within CanLII can be searched using the Document Text filter too at https://www.canlii.org/on/onltb?origLang=en There are sources other than CanLII, such as Westlaw and LexisNexis, which are subscription-based and generally relied upon by legal professionals with a larger number of cases.

How Do I Use Case Law At My Hearing?

Usually, if case law is cited, it is highlighted during a party's closing submissons when you tell the LTB adjudicator the decision you are seeking and the reasons you believe that decision is warranted. Those reasons may include citations of common law. Sometimes, case law is also used to support a motion you are making.

It is not always necessary to cite case law at a LTB hearing; in fact, often you do not. If your case is very straightforward, and remains so, you can likely just rely on statute and evidence. For example, if your paperwork is in order, your hearing is for rent arrears only, the tenant has already moved out and the tenant does not attend the hearing, case law will not be necessary. However, let's say you are a landlord arguing for an N12 eviction. It may be very useful to know the interpretation the Board, and especially Divisional Court, have applied to statute s. 72.1 Residential Tenancies Act regarding a landlord's good faith intention on an N12/L2 application. Landmark cases frequently relied on by adjudicators for this purpose are:

Feeney v. Noble, 1994 CanLII 10538 (ON SC), <https://canlii.ca/t/g1g1d>

Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), <https://canlii.ca/t/gbmx5>

Fava v. Harrison, 2014 ONSC 3352 (CanLII), <https://canlii.ca/t/g77v1>

at para. 17: "the motives of the landlord in seeking possession of the property are largely irrelevant and the only issue is whether the landlord has a genuine intent to reside in the property. [my emphasis] However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.” 

Most adjudicators are so familiar with these precedent-setting cases that you do not need to mention them, but it is beneficial to know in advance of your hearing the bar you, or your opponent, may be held to meet. It is critical for N12 hearings to ensure that the person who will take ocupancy is present to be questioned. Also very useful, is to observe N12 hearings before your own hearing day. Daily links to the Zoom hearings can be found at https://www.paralegal-on-broadview.com/events

Conclusion

In conclusion, case law plays an essential role in ensuring the legal system is fair, consistent, and yet adaptable, and guides both legal professionals and all individuals in navigating the complexities of the law.

For further guidance, contact Karimalis Paralegal and Notary: inquire@paralegalonbroadview.com