February 16, 2024

LTB Statement of Concern: The Numbers Speak for Themselves

There is little justice to be found for Ontarians who have to turn to Ontario’s busiest tribunal – the Landlord and Tenant Board. The LTB has been failing badly since 2019, when the current Government began removing its experienced adjudicators and moved the LTB under the leadership of Tribunals Ontario, a mega-cluster of tribunals. The deplorable situation at the LTB is not getting better. According to the most recent Annual Report from Tribunals Ontario, the situation is getting worse. The backlog of LTB applications has grown to over 53,000.

Despite increased funding and more staff1 and more adjudicators than ever before2, the delays remain crushing and the number of cases resolved each year has continued to drop, as documented in Tribunals Ontario’s 2022/23 LTB Annual Report. And this is the case notwithstanding that every year since 2018/19, the LTB has received fewer new applications than pre-2019 levels. Cumulatively, the LTB has received over 57,000 fewer new cases over the last three fiscal years than under the previous leadership which was able to manage the larger caseload with fewer adjudicators and without creating a significant backlog.

This begs the question: what is going wrong at the LTB?

Wait Times Increased by Tenfold

The average wait for an order on an arrears eviction is now 342 days, according to Tribunals Ontario’s most recent website data , as compared to 32 days during the same3 period in 2018. This means that, whereas previously, a landlord could expect to get an eviction order while still covered by a tenant’s last month’s rent, the same landlord will now be without rent for almost a year before they can get an order granting repossession.

For tenant applications, Tribunals Ontario reports that the average wait time from filing to order is even longer – 427 days – with some tenant applications, including applications seeking a maintenance order, taking over two years to be resolved. This can be compared to an average of 70 days for a tenant application to be resolved in a comparable period in 2018. Ontario’s Ombudsman stated in a 2023 report, Administrative Justice Delayed, Justice Denied, that his investigation had found tenant applications stalled at the LTB for as long as six years (para.148).

The most recent Tribunals Ontario Annual Report also states that when a member of the public tries to telephone the LTB seeking assistance, they now wait more than three times as long on hold as compared to the 3-year average wait time reported in 2018/19 Annual Report, even as the LTB now answers half the number of calls.

Fewer Applications Resolved Year after Year as Backlog Grows

Under Ontario’s Conservative Government and the leadership team at Tribunals
Ontario, members of the public who need the assistance of the Landlord and Tenant
Board have received increasingly diminished service every year since 2018, in the
number of public calls answered and, most importantly, in the number of applications
resolved.

These numbers speak for themselves:

Fiscal Year Applications
Received		 Applications
Resolved		 Applications
Outstanding
2018/1982,09579,47614,276
2019/2080,87472,06422,803
2020/2148,42235,98334,731
2021/2261,58661,86832,800
2022/2373,20852,98653,507

But notwithstanding this clear record of growing dysfunction at the LTB under Tribunals Ontario and the current Conservative Government since 2019, the Attorney General has risen in the Legislature to claim that his Government has been working diligently to clean up a mess that, he says inaccurately, was left at the LTB by the previous Liberal Government.4

The Ombudsman’s report on the LTB, published in May 2023, cited a growing backlog of 38,000. But this was an underestimate – the number had in fact grown to over 53,000 already by March 2023, according to the more recently published Tribunals Ontario’s Annual Report. Why did Tribunals Ontario and the Attorney General not share these more up-to-date figures with the Ombudsman before release of his report? But even based on that underestimation, the Ombudsman stated:

“Over the past few years, the Board has proven itself unequipped for the task of reducing its extraordinary backlog of applications. More importantly, those applications represent tens of thousands of Ontarians suffering hardship caused by the Board’s inability to provide timely service. As an administrative tribunal, the Board is fundamentally failing in its role of providing swift justice to those seeking resolution of residential landlord and tenant issues. In doing so, it is denying justice to a significant segment of Ontarians.

Excruciatingly long delays have had immense negative impacts on thousands of landlords and tenants who depend on the Board to resolve their tenancy issues. We heard from many of those trapped in the queue on both sides of the landlord/ tenant relationship – some forced to live in unsafe and substandard conditions, and others facing financial ruin.”

~ Ontario Ombudsman, Administrative Justice Delayed, Justice Denied, May 2023, paragraphs 306-307.

What is Amiss at Tribunals Ontario?

It is worth saying at the outset that the LTB is not the only tribunal under Tribunals Ontario’s leadership where there has been a precipitous drop in access to justice. The backlog of cases at the Human Rights Tribunal of Ontario (HRTO) has doubled since the HRTO was moved into Tribunals Ontario, at the same time as the number of full evidentiary decisions has fallen dramatically. The backlog in automobile accidents claims at the Licence Appeal Tribunal has grown from 4,241 in 2017/18 to 13,903 in 2022/23.

Misleading Data Reporting from Tribunals Ontario

It is alarming to note that Tribunals Ontario itself is not transparent in reporting its failures. In addition to apparently not providing the Ombudsman with up-to-date figures before publication of his report, Tribunals Ontario’s most recent Annual Report, in its Key Performance Indicators chart, states that in 80% of cases across its 13 tribunals, it had met its target for scheduling hearings. However, LTB-specific data in the Report showed that the LTB only met its hearing target in 7% of cases, and the LTB was responsible for almost 44,000 of the 71,000 “hearing events” at Tribunals Ontario last year. The reported 80% success rate was calculated by weighing the LTB as equivalent to all other tribunals, notwithstanding that every one of the other tribunals had far fewer hearings. For example, Ontario Special Education Tribunal had only two hearings in 2022/23, met its hearing target in 100% of those two cases, and was weighted evenly with the LTB.

Up-to-Date LTB Data is Missing from Tribunals Ontario Website

Significant LTB data for 2023 is missing from Tribunals Ontario’s Open Data Inventory page on its website. As of mid-February 2024, the last quarter for which data is available on the “Average Days to Hearing and Order Report” is October 1, 2022 to December 32, 2022, well over one year ago. On the “Key Performance Indicators” website page for the LTB, most of the data categories are marked “N/A” or “TBD”. In the light of this overall picture, it is difficult to have confidence in the fact that Tribunals Ontario is now reporting that, in the first two quarters of 2023/24, the LTB met hearing targets in, on average, 69% of hearings. This calculation must have excluded the tens of thousands of applications that have been stockpiling in the backlog over the last four years.

What Factors are Contributing to the LTB Crisis?

Loss of Experienced Adjudicators and Leaders

Focusing on the reasons for this dire situation at the LTB, the Ombudsman cites as one factor, the drop in the number of adjudicators after the 2018 election (paragraph 308). As Tribunal Watch Ontario has previously noted, the failure of the Government to retain the expert adjudicators in place when it came into power in 2018, resulted in a massive loss of expertise and experience across many Ontario tribunals. 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. See our proposal for reform to the appointments process.5

The pandemic resulted in a freeze in evictions at the LTB, but the huge increase in the backlog cannot be blamed on COVID-19. In fact, there was a 40% drop in the number of new applications in 2020/21, and the numbers have not returned to pre-pandemic levels even today. 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 at the LTB, recognized by Ontario’s Ombudsman, is the decision by Tribunals Ontario to move the LTB from in-person hearings in local regional centres 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 system6, resulted in “chaotic hearings”, inefficiencies 6 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).

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.7 For a fuller discussion by Tribunal Watch Ontario, see? The “Digital Transformation” at Tribunals Ontario: The Impact on Access to Justice.8

Tribunal Watch Ontario has previously commented on the impact of these changes, as well as Tribunals Ontario’s closing of 44 regional LTB hearing locations where landlords and tenants were previously able to obtain assistance from LTB counter staff, eliminating many errors that now lead to delays.9

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% 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 has many 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% of matters would 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. For example, approximately 60% of all applications are arrears evictions; clinic duty counsel in attendance at local hearing centres were, in the past, able to readily assist unrepresented tenants to avoid eviction by negotiating re-payment plans for outstanding arrears. In fact, from 2002 until 2020, regionally-based clinic duty counsel consistently attended regularly scheduled LTB hearing days in locations throughout Ontario – often a block of days once monthly in smaller centres – and worked effectively with local landlords, LTB mediators, municipal rent banks and housing inspectors, to negotiate settlements and provide summary representation.
  • Confusing and inefficient hearings.
    As documented by the Ombudsman, the 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 separately cautioned about the potential negative impact of imposing an almost-mandatory digital format for people living in poverty or facing other challenges to electronic participation. Tribunals Ontario is reporting that10 in the current fiscal year, there have only been 11 in-person LTB hearings across Ontario, as compared to 36,699 electronic hearings. For a fuller discussion by Tribunal Watch Ontario, see here.11
  • Diminished Legal Clinic Resources for Low-Income Tenants
    Finally, the current LTB system of scheduling simultaneous blocks of provincewide, electronic hearings means that legal clinic lawyers 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. Significantly, over the last few years, the LTB’s move to province-wide virtual hearing blocks has bled resources from Ontario’s legal clinics that are already hard-pressed to meet the diverse legal needs of lowincome communities. Simply put, this means legal clinics can now assist and represent fewer low-income Ontarians, with evictions, disability appeals, employment cases and so on.

What can be done?

The fact that the LTB backlog continues to grow despite increased funding, increased staff and a much larger complement of adjudicators, as well as a reduction in incoming cases compared to pre-2019 figures, is proof enough that the problem originates in the loss of expertise at every level, and is compounded by the new direction taken by Tribunals Ontario, changing the way the LTB delivers service. We point to the almost complete elimination of in-person hearings, the closure of regional offices and the move to large simultaneous, province-wide hearing blocks, with reduced opportunities for mediated settlements and effective duty counsel representation. These changes, championed by the Attorney General and Tribunals Ontario as improving efficiency and accessibility, have proven to do nothing of the kind.

Tribunal Watch Ontario continues to call on Tribunals Ontario and the Ontario Government to take two essential steps to restore access to justice at the Landlord and Tenant Board.

  1. Re-establish Regional In-person Hearings to Promote Settlements
    Tribunals Ontario must re-introduce regional in-person hearings at the Landlord and Tenant Board as the default hearing format for most applications. Electronic hearings should be readily available as an option, as is the case at other tribunals, with parties free to choose this format. In addition to promoting access to justice, the return of local in-person hearings, with attending duty counsel and the availability of municipal rent bank staff and housing standards inspectors, can be expected to facilitate settlements in up to 30% of cases, leading to an immediate reduction in the continuing build-up of the backlog.
  2. Establish a Specialized Backlog Reduction Panel
    The Ontario Government must immediately establish a specialized backlog reduction team to focus exclusively on resolving the tens of thousands of cases stuck in the growing LTB backlog. The Landlord and Tenant Board can then direct its resources to managing its incoming caseload effectively, including the re-establishment of its regional presence and returning to in-person hearings as the readily available default option.

To ensure an expedited and effective recruitment of the specialized backlog team and its leader, the Ministry of the Attorney General should set up a transparent and competitive process that is separate from Tribunals Ontario, with the team’s senior leadership recruited by and reporting directly to the Ministry of the Attorney General. Tribunal Watch Ontario recommends that the selection panel for the leadership position include at least one Chair or former Chair with experience in leading a backlog reduction initiative. Under the right leadership, it should also be possible to recruit experienced adjudicators, including some members previously appointed to the LTB, with deep expertise in the subject matter and the law.

This approach – establishing a specialized backlog team under separate leadership – has been adopted successfully by other adjudicative tribunals. It sets up a dedicated effort to provide long-delayed service to Ontarians stuck in the LTB backlog, while supporting the existing panel of LTB adjudicators to more effectively manage the incoming caseload. This is particularly important right now when the incoming case counts can be expected to build back to pre-pandemic levels in the next couple of years.

Conclusion

Tribunal Watch Ontario questions why the current Government and in particular, Ontario’s Attorney General, have failed to act on such glaring evidence of failure at the LTB. This is particularly confounding in the face of last year’s Ombudsman report that found that, to repeat, “… the Board has proven itself unequipped for the task of reducing its backlog of applications …. [and] fundamentally failing in its role of providing swift justice to those seeking resolution of residential landlord and tenant issues”.

The Ministry of the Attorney General and the Ombudsman’s Office may believe that improvements will be forthcoming in the months ahead. It is difficult to be confident that there will be hard evidence of that when Tribunals Ontario continues to fail in its responsibility to make available up-to-date information on its current case count, its ability to meet key performance targets, and its timelines for moving tens of thousands of cases in the backlog to resolution.

Tribunal Watch Ontario believes that it is a dereliction of responsibility for the Ontario Government and its Attorney General to have failed to take effective steps to ensure that Tribunals Ontario is delivering accessible and timely justice to Ontarians who require the services of the Landlord and Tenant Board. It appears that the Government is willing to throw good money after bad, when, despite substantial increases in funding, more staff and a larger panel of adjudicators, the backlog has continued to grow even as the number of incoming cases falls. In our submission, the first step, needed immediately, is the establishment of a special backlog reduction tribunal under new leadership, followed by a return to in-person hearings offered regionally throughout the province.

Footnotes

  1. See Tribunals Ontario, Annual Report 2022/23, Landlord and Tenant Board Operational Highlights. ↩︎
  2. Tribunals Ontario recently reported that 35 new full-time adjudicators and 27 new part-time adjudicators have 2 been appointed to the LTB since May 2023. It told CBC News that the LTB now has 128 adjudicators – 70 full-time and 58 part-time – considerably more than were in place in 2018, when there were approximately 53 adjudicators – 44 full-time and 9 part-time. For 2018 numbers, see the May 14, 2020 Statement of Concern about Tribunals Ontario As of March 31, 2023, the LTB had 85 adjudicators – 39 full time and 46 part-time members: Tribunals Ontario, Annual Report 2022/23, Landlord and Tenant Board Operational Highlights.  ↩︎
  3. As of February 1, 2024, the most recent period for which data is published on the time from application to order is the 3rd quarter in 2022/23 – October 1, 2022 – December 31, 2023. See: Tribunals Ontario Data Inventory – Open Data | Ontario’s Open Data Directive ↩︎
  4. For example, on May 15, 2023, in answer to a question from NDP Justice Critic Kristyn Wong-Tam, Attorney General Doug Downey rose in the Legislature to claim falsely that the Ontario Ombudsman reported that the Liberals had left the LTB in “shambles” and stated that his government had been hard at work cleaning up the mess at the LTB ↩︎
  5. The Ford Government has not even met the requirements of the current legislative framework for Ontario Tribunals. Ontario’s Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 requires a competitive, merit-based process for tribunal positions. Despite this requirement, the current Executive Chair of Tribunals Ontario was first appointed in June 2020 without a posting or competition and then renewed as Executive Chair to December 2025 without the position being posted as such. Instead, there was a posting for Executive Chair of the Licence Appeal Tribunal, a position which does not exist and to which accordingly, he may have been the only candidate. He is a former Conservative candidate at the federal level. ↩︎
  6. On May 30, 2023, Tribunal Watch Ontario initiated a request for Ontario’s Auditor General to undertake a “value for money” review into the decision by Tribunals Ontario and the Ministry of the Attorney General to discontinue a just-completed new case management system at the LTB and to instead purchase an expensive new system which the Ontario Ombudsman found to be a contributing factor in the growing LTB backlog. ↩︎
  7. Landlord and Tenant Board (LTB) Key Performance Indicators | Tribunals Ontario. ↩︎
  8. Access to Justice and the Digital Transformation at Tribunals Ontario: Canadian Journal of Administrative Law and Practice (Volume 34, No.2) ↩︎
  9. Appointment and recruitment process for Associate Chair of the Human Rights Tribunal of Ontario ↩︎
  10. See: OBA Submission to Tribunals Ontario on Hearing Formats and the Tribunals Ontario Portal,
    submitted to Tribunals Ontario by the Ontario Bar Association, August 31, 2022; and “No Turning Back:
    CBA Task Force Report on Justice Issues Arising from COVID-19,” and
    https://www.cba.org/CBAMediaLibrary/cba_na/PDFs/Publications%20And%20Resources/2021/CBATask
    Force.pdf (February 2021), p.16-17 ↩︎
  11. Access to Justice and the Digital Transformation at Tribunals Ontario: Canadian Journal of Administrative Law and Practice (Volume 34, No.2) ↩︎