Posted June 24, 2021
A new plan to shift Ontario’s landlord and tenant disputes to a digital format — even after the pandemic — has drawn the ire of housing advocates and lawyers who say such a model creates barriers to a fair hearing.
Tribunals Ontario gave the Landlord and Tenant Board (LTB) the green light to rollout a permanent digital-first framework for hearings last March in a bid to combat delays and case backlogs exacerbated by the COVID-19 pandemic.
It’s part of a provincewide effort to modernize the justice system and significantly reduce the number of dispute resolution cases that require a hearing for Ontario’s 14 adjudicative tribunals.
But the virtual pivot at the LTB — expected to be in place by the end of the summer — is raising questions among housing advocates, who argue the model will make it more difficult for low-income tenants to stay housed.
“The main barrier to low-income tenants is internet costs and many only have a landline,” said Veronica Gonzalez, a member of Hamilton ACORN, an advocacy group that has pushed the city for measures to protect tenants since 2017. “If they can’t attend a hearing, what then? There was no communication for this decision.”
Less than 70 per cent of the lowest income households in Canada are subscribed to internet services compared to 98 per cent of the largest income households, according to the Canadian Radio-television and Telecommunication Commission (CRTC).
And the correlation between income and broadband access is already playing out in LTB hearings.
A just-released report from the Advocacy Centre for Tenants Ontario (ACTO) found that landlords are attending virtual dispute hearings at nearly twice the rate of tenants.
About 87 per cent of landlords attended 251 digital hearings observed by the ACTO from March to May — a far cry from 45 per cent of tenants. Another glaring difference was in modes of participation: more than two-thirds of landlords attended via video compared to less than half of tenants, the majority of whom appeared via phone.
“Low-income tenants don’t have the technology needed to fully participate in a hearing that could last several hours,” said Tracy Heffernan, director of the tenant duty counsel program at ACTO. “As a result, many are excluded from participating in their own hearings, with no opportunity to share their evidence or explain their circumstances, leading to eviction by default.”
The imbalances in attendance rates and modes of participation create challenges for tenants that may not have occurred during in-person hearings, said Natalie MacDonnell, tenant counsel for the Hamilton Legal Community Legal Clinic.
If a tenant attends a hearing only via phone, for instance, they’re not privy to evidence presented against them on a screen.
“It’s hard for them to know what’s going on, to navigate that process” she said. “They’re at a disadvantage in terms of being able to present their evidence. They’re not there to show things and understand what others are showing.”
In-person hearings also lend a human element to settling disputes. MacDonnell said if an adjudicator can see a tenant has a disability or trouble communicating, they’re more likely to take things slow.
“When the adjudicator sees the person and their face, they’re able to assess credibility in a different way than over the phone or video, where it’s much harder,” she said, adding this is critical when weighing the testimony of a landlord against a tenant.
MacDonnell often spends her work week on two computer screens, flipping through virtual LTB rooms and trying to find Hamilton tenants who need legal counsel. Last week, there was a day with more than 60 of them.
She said she can’t get to them all — but neither can most duty counsels. According to the ACTO report, 79 per cent of landlords have been legally represented at virtual hearings compared to 31 per cent of tenants.
“It’s a very different experience from in-person where you can observe what’s happening in hearing rooms and access tenants to go through relevant documents with them,” she said.
“And a lot of these are eviction hearings — hearings that have immense repercussions for tenants. These can be one of the most stressful experiences of a person’s life, and this change to all digital throws on just another layer for tenants to navigate.”
Article by Sebastian Bron for the Hamilton Spectator