TORONTO – Dozens of Toronto tenants facing eviction hearings at Ontario's Landlord and Tenant Board (LTB) will have their cases heard jointly. Their lawyers successfully argued this will be the most judicially efficient way to proceed because they all have "the same common issues and the same defense."

"We're proposing this course of action because, in our view, it's the fairest and most efficient way to move forward, especially because all tenants will be raising the same defenses pursuant to section 83.3 of the [Residential Tenancies Act]," said Sima Atri on Sept. 26, during the first hearing for two of 75 tenants living in three Thorncliffe Park Drive buildings.

The defense is based on sections 83.3 (a) and (d) of the RTA. Those sections give the Board authority to deny applications when (a) "the landlord is in serious breach of the landlord's responsibilities…"; and (d) "the reason for the application being brought is that the tenant is a member of a tenant's association or is attempting to organize such an association."

"All 75 tenants who are facing eviction are members of their tenants' association, and they started to organize their tenants' association to try and enforce their rights under the Act," said Atri, co-director of the Community Justice Collective, which offers legal support for community organizers and social justice movements across the Greater Toronto and Hamilton Area.

"So all 75 tenants will be raising these two defenses. … And we'll be asking for the Board to refuse the eviction applications based on these defenses."

The landlords' lawyers, however, argued that it was a black-and-white matter of the tenants facing eviction because of rent arrears and that therefore the cases should be heard individually.

"The questions are quite simple," said Joe Hoffer. "Are there arrears of rent? And then, [regarding] S. 82, what issues are to be raised?"

He further argued that while S. 82 does allow for tenants to raise any issues with the landlord in hearings about rent arrears, it "does not lend itself to some collective action."

"If the tenant can make out their specific S. 82 issues, and can establish what impact that has had, then the Board is in a position to be able to determine what the outcome should be," he said.

"That is not a collective undertaking. That is an individual undertaking, as is the application itself."

'Serious breaches'

The tenants have been withholding their rent as an organized collective since May to protest several proposals for Above Guideline Rent Increases (AGI) from their landlords, Starlight Investments and PSP Investments. By June, more than 100 of them had received N4 eviction notices.

That same month, the LTB accepted the landlord's request to expedite separate hearings for the requested AGIs. It did so through a letter that claimed the tenants' actions had amounted to "harassment" of them and their families.

On Aug. 14, the tenants were advised that the landlord's request had been granted, according to one of the tenant-organizers who spoke on the condition of anonymity, giving them less than a month to make their written submissions on Sept. 15.

At Tuesday's eviction hearing, Atri said they would be presenting around 2000 pages of evidence "related to the serious breaches of the landlord's responsibilities under the RTA."

These include "water shortages, power outages, elevator breakages, parking lot issues, and harassment and surveillance of the tenant association," she said.

According to Ontario Tribunals, S. 82 of the RTA allows tenants to legally raise any of those issues "during a hearing about rent arrears."

Atri said their defense would also be supported by three witnesses, including a professor, as well as testimony from tenants about "the retaliation and the serious breaches of the landlord."

She cited two cases to bolster her submissions. One was Blaker v. Chan, which says Tenants' conduct is irrelevant to the assessment by the Board of whether or not the landlord is engaging  "in behaviour that requires the Board to refuse the applications," she told The Media Co-op in an email after the hearing.

"For example, if the Landlord has done something wrong, the fact that Tenants may also be doing something wrong doesn't cancel out the Landlord's misconduct," she says.

The other case is Faruk v. LTB, which found that where a tenant is a member of their tenant association, and that they are being evicted because of that membership, "then the Board must refuse to evict, even if it is also true that the tenant is in arrears."

At the hearing, Atri said several tenants, including the two that day, would also need help with translation.

'Generic allegations'

Hoffer and Kristin Ley argued vehemently to have the cases heard separately both for "judicial economy" and to avoid "further prejudice" to the landlord.

The tenants' defense – that the evictions are in retaliation for being members of the tenants' association – was, Hoffer said, "absurd," "highly speculative," and based on "generic allegations."

"There is nothing at this point to support the contention that this is a retaliation of some kind," he told the Board.

"What the evidence will show is that the landlord has certain protocols that they follow when a tenant is in arrears of rent, and that those protocols have been followed in this particular case."

While he recognized that S. 186 of the RTA does allow tenants to combine applications, he said it doesn't give the Board the power to do so based on "general allegations."

For all these reasons, he said, engaging in a joint-hearing would be embarking on a "voyage" that "ought not to be permitted."

"I will suggest that it's not going to expedite proceedings if we delay everything today and then embark on the voyage that my friend is asking you to embark on with 75 applications, numerous requests for interpreters, numerous attempts to delay these proceedings," he said, adding that it was "unlawful for the tenant to simply not pay the rent, whether they have a legitimate claim or not."

"The arrears will continue to accrue, the landlord will continue to be prejudiced, and nothing will be resolved, in my submission, for months," he said.

Objections

After repeated insinuations by Hoffer that requests for interpreters were being made as a tactic to delay the hearings, Atri objected, noting that interpreters were needed to aid the tenants, and that it would be more easily done "if everything is happening in one day."

"We're not asking for interpretation to delay, Mr. Hoffer. We're asking for interpretation so that tenants can hear what's happening in their own eviction hearings," she said.

"That wouldn't be possible if the cases are all scheduled on different days throughout five months, because everyone is working, [and] people will have to take time off to do that."

She objected again when Hoffer tried to bring up the landlords' letter requesting an expedited AGI hearing. She said the letter was "unsubstantiated" as "no evidence was presented…with that request," and therefore questioned its relevance to the eviction hearings.

Hoffer responded that "the relevance is that people are being harassed."

"It's tied to the withholding of rent that has been engaged with by the tenants," he said. "And the point being that the longer these proceedings drag on, the longer the harassment continues."

On the 'side of caution'

But that wasn’t enough to sway the Board.

By the end, Board Vice-Chair Sean Henry decided to "err on the side of caution" and hear all the cases together, saying he was "more persuaded than not as to the prospective benefits set out in the tenants' arguments as it pertains to hearing efficiency."

“My intention here will be to direct the joiner – that is the scheduling of the hearings to take place at the same time."

He also decided that no rent would be paid by the tenants in trust either to the Board or the landlord – as Hoffer and Ley had requested – apparently swayed by the tenants' lawyers' arguments that it was the validity itself of the rent being sought by the landlord that was under question.

No date has yet been set for the joint hearings.