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| Kathy Laird |
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| Voy Stelmaszynski |
We also noted that the LTB is not the only tribunal that is performing badly since being moved under Tribunals Ontario’s leadership. The backlog at the Human Rights Tribunal of Ontario has more than doubled, and few applications are getting to a full hearing. At the Licence Appeal Tribunal, also under Tribunals Ontario, the backlog is now 13,903, up from 4,241 in 2017/18.
In this part, we will examine the contributing factors that have created this crisis in administrative justice in Ontario.
Loss of experienced adjudicators and leaders
In his 2023 report, Administrative Justice Delayed, Justice Denied, Ontario’s ombudsman identified the drop in the number of adjudicators after the 2018 election as a significant factor contributing to what he described as “an extraordinary backlog of applications” (para. 306-308). As Tribunal Watch Ontario itself has previously noted, the failure of the incoming Conservative government to retain the expert adjudicators and the leadership in place when it came into power in 2018 resulted in a massive loss of expertise and experience across many Ontario tribunals. Having removed almost all adjudicators at Tribunals Ontario who were first appointed by the previous Liberal government, the current government then failed to act quickly to refill the positions, with the LTB losing an estimated 30 per cent of its full-time members between 2018 and 2020, and the Human Rights Tribunal losing over 50 per cent.
This is a situation that calls for reform. Tribunal Watch Ontario is calling on all Ontario political parties to support the depoliticization of the appointment and reappointment processes for Ontario tribunals — we don’t replace our judges when we have a change in government and we shouldn’t replace our tribunal adjudicators either. Our proposal for reform to the appointments process can be found here.
We note that the current government has not even met the requirements of the current legislative framework for appointments to Ontario tribunals. The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 requires a competitive, merit-based process for all tribunal positions. Despite this requirement, the executive chair of Tribunals Ontario, a former Conservative candidate at the federal level, was first appointed in June 2020 without a posting or competition and then renewed as executive chair until December 2025 without the position being posted as such. Instead, there was a posting for executive chair of the Licence Appeal Tribunal, a position that does not exist and for which accordingly, he may have been the only candidate.
Pandemic?
Was the pandemic also a factor in the buildup of backlogged applications? No. The pandemic resulted in a freeze in evictions at the LTB. The huge increase in the backlog cannot be blamed on COVID-19. In fact, there was a 40 per cent drop in the number of new applications arriving at the LTB in 2020/21, and the numbers have not returned to pre-pandemic levels even today. Cumulatively over the last three years, the LTB has received approximately 57,000 few applications as compared to pre-2019 levels. Other tribunals were able to reduce their backlogs during the pandemic, but not those at Tribunals Ontario.
End of in-person hearings
One contributing factor to delays at the LTB, recognized by Ontario’s ombudsman, is the decision by Tribunals Ontario to move the LTB from in-person hearings in 44 local regional centres across the province to video and telephone hearings, scheduled in large, simultaneous, province-wide hearing blocks. This move, together with the unnecessary introduction of an expensive but flawed new case management system, was found to have resulted in “chaotic hearings,” inefficiencies in the management of the caseload, and compromised fairness for tenant households who had more difficulty accessing legal assistance and who often lacked the ability or resources to connect to video hearings (see Ontario Ombudsman, Administrative Justice Delayed, Justice Denied, including paragraphs 108, 198, 214, 215-220, 225-228).
In May 2023, Tribunal Watch initiated a request that the Office of the Auditor General undertake a “value for money” review into the decision by Tribunals Ontario and the Ministry of the Attorney General in 2021 to abandon a just-completed new case management system built in-house for the LTB and to instead purchase, at a cost of $19 million, a system from British Columbia that the ombudsman has now found to have contributed significantly to delays and mismanagement of files.
Although Tribunals Ontario states in its Annual Report that the LTB and all its tribunals “will continue to provide alternatives for users who do not have access to technology or who need other supports to participate fully in tribunal processes,” in fact the numbers on its website suggest otherwise. In the current fiscal year, there have only been 11 in-person LTB hearings across Ontario, as compared to 36,699 electronic hearings.
Experienced counsel report that the electronic hearing model is simply not effective in managing a high-volume tribunal with a large number of unrepresented and often not-computer-literate parties. Over 90 per cent of tenants are not represented by counsel.
This is especially a concern when the stakes for both parties are so high: loss of housing for the tenant, and lost income including potential loss of property for a small landlord who is not receiving rent.
The move to digital hearings in multiple simultaneous province-wide hearing blocks is a key factor in the growing backlog and has had other negative impacts, including:
- Reduced access to mediation and fewer pre-hearing settlements
Mediators are no longer present at all LTB hearings and mediation is much less effective in the rushed and impersonal electronic hearing format, particularly when one party (almost always the tenant) is on the phone and the other (the landlord) is participating by Zoom. Legal clinics report that, when hearings were conducted locally and in-person, up to 30 per cent of matters could settle on the hearing day without the need for adjudication.
- Reduced access to tenant duty counsel services at LTB hearings
All parties used to benefit from the in-person presence of local legal clinic lawyers, acting as tenant duty counsel, at LTB hearings across the province.
From 2002 until 2020, regionally-based clinic duty counsel consistently attended all regularly scheduled LTB hearing days in locations throughout Ontario — often a block of days scheduled once monthly in smaller centres. Duty counsel lawyers were able to work effectively with LTB mediators, local landlords, municipal rent banks and housing inspectors, to negotiate settlements, diverting cases from hearing.
From 2002 until 2020, regionally-based clinic duty counsel consistently attended all regularly scheduled LTB hearing days in locations throughout Ontario — often a block of days scheduled once monthly in smaller centres. Duty counsel lawyers were able to work effectively with LTB mediators, local landlords, municipal rent banks and housing inspectors, to negotiate settlements, diverting cases from hearing.
- Confusing and inefficient hearings
As documented by the ombudsman, the electronic hearing process is often “chaotic:” parties lose audio connection mid-hearing; the parties, as well as adjudicators, have difficulty sharing documentary evidence online; parties participating by telephone struggle to effectively participate. Tribunal Watch has heard many reports of parties on the telephone hanging up after waiting for hours without knowing if they are still in a queue for their hearing.
- An erosion in the fairness of the hearing itself
As the ombudsman has noted, many tenants can only participate in their eviction hearing by telephone, while the landlord and the adjudicator are in a video hearing room on Zoom. Both the Ontario Bar Association and the Canadian Bar Association have cautioned about the potential negative impact of imposing an almost-mandatory digital format on people living in poverty or facing other challenges to electronic participation. See: “OBA raises concerns over tribunals Ontario’s digital-first approach to hearings” and No Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19, p. 16-17.
- Diminished legal clinic resources for low-income tenants
Finally, the current LTB system of scheduling simultaneous blocks of province-wide, electronic hearings means that legal clinic lawyers now waste an enormous amount of time sitting in on virtual block hearings with multiple applications, attempting to identify and connect online and by telephone with tenants who need immediate legal assistance at their LTB hearing. This has reduced the capacity of legal clinics to provide tenant households with in-depth representation at hearings before the LTB.
In the past, the leadership at the LTB worked with the legal clinic system to ensure compatible operations that maximized the resources of both the tribunal itself and the clinics. This was to the benefit of all parties before the LTB: it meant a more efficient process generally and a smoother hearing day.
More broadly, the LTB’s move to province-wide virtual hearing blocks has bled resources from Ontario’s legal clinic system, which is already hard-pressed to meet the diverse legal needs of low-income communities. Simply put, this means legal clinics can now assist and represent fewer Ontarians, not only with housing disputes, but also with disability benefits appeals, lost wage claims, human rights cases and so on. This is something that should concern the public; a valuable public resource is being undermined.
In the past, the leadership at the LTB worked with the legal clinic system to ensure compatible operations that maximized the resources of both the tribunal itself and the clinics. This was to the benefit of all parties before the LTB: it meant a more efficient process generally and a smoother hearing day.
More broadly, the LTB’s move to province-wide virtual hearing blocks has bled resources from Ontario’s legal clinic system, which is already hard-pressed to meet the diverse legal needs of low-income communities. Simply put, this means legal clinics can now assist and represent fewer Ontarians, not only with housing disputes, but also with disability benefits appeals, lost wage claims, human rights cases and so on. This is something that should concern the public; a valuable public resource is being undermined.
This is the second installment of a three-part series. Part one: Ontario Landlord and Tenant Board numbers speak for themselves. Up Next: What Factors are Contributing to the LTB Crisis at Tribunals Ontario.
A member of Tribunal Watch Ontario, Kathy Laird is a retired human rights lawyer and former counsel at the Human Rights Tribunal of Ontario. She is former director of the Advocacy Centre for Tenants Ontario and the Human Rights Legal Support Centre. Voy Stelmaszynski is a retired solicitor with over 25 years’ experience in the adjudicative tribunal sector. He is a member of Tribunal Watch Ontario's steering committee. He can be reached at voystel@gmail.com.
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