Access to Justice Threatened in the Rush to Digitalization at the LTB – Guest Post by Kathy Laird

Kathy Laird is one of Ontario’s most knowledgeable administrative justice system experts. Over the course of an outstanding career she has served in that system in a range of important roles – as an appointed adjudicator at several of the system’s tribunals, as counsel to the Chair of the Human Rights Tribunal, as the Executive Director of the Human Rights Legal Support Centre, and as Legal Director at the Advocacy Center for Tenants Ontario.  She has, as well, litigated administrative justice issues on behalf of legal clinic clients before numerous tribunals and courts at all levels.

It is, accordingly, with great pleasure that I am able to present her speaking notes for her disturbing presentation to the Tribunal Watch Ontario sponsored,, Osgoode Hall Law School webinar on Ontario’s Landlord and Tenant Board (LTB) which was aired on June 14, 2021.

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Speaking Notes on Access to Justice at the LTB

by Kathy Laird

My remarks today are based on a paper I presented at the Law Society of Ontario’s Six Minute Administrative Law and Practice conference in March 2021.  That paper, entitled The “Digital Transformation” at Tribunals Ontario: The Impact on Access to Justice”, is available on the Tribunal Watch Ontario website and is published in the Canadian Journal of Administrative Law and Practice (Volume 34, No.2).

Today I return to the topic of the impact of digitalization on access to justice focusing on this occasion on the impact of Ontario’s developing digital dispute resolution process for landlord and tenant disputes.

Up until the change of government in June 2018, Ontario had built up not only the best administrative justice system in the country, including the part of the system dealing with residential tenancy disputes, but also I believe the most comprehensive and just, residential tenant security-of-tenure regime and eviction process in the country.

Ontario’s Residential Tenancies Act today provides procedural and substantive protections that have been built up over the past 50 years, since Part IV of what was then the Landlord and Tenant Act was first introduced in 1970.

However, in March 2021, the Ontario Attorney General and the Executive Chair of Tribunals Ontario (of which the Landlord and Tenant Board (LTB) is a part) announced that, this summer, the province would be introducing a new online dispute resolution process and case management system at the Landlord and Tenant Board, based on the model in place in British Columbia.  According to Attorney General Downey, the new regime will produce “resolutions at a much higher rate and much faster, prior to a hearing, if a hearing is needed at all”.  Executive Chair Sean Weir stated in his media release that this ‘modernization’ of tribunal services would be guided by a commitment to “fair, effective, timely and accessible dispute resolution”.

But the presentation to this webinar today by Danielle Sabelli from the Community Legal Assistance Society in Vancouver who knows all about the B.C. model is a cautionary tale about how substantive rights can be whisked away by non-legislative innovations in processes that are promoted as enhancing access to justice but in fact create new barriers for marginalized parties.

And why is this happening now in this way?

First and foremost, the government has a mess on its hands – massive delays that pre-date the pandemic.

  • On March 31, 2018, at the end of the 2017/2018 fiscal year, the LTB, which typically receives about 85,000 applications per year, had about 13,000 (12,944) unresolved cases;
  • Two years later, as of March 31, 2020 (the end of the 2019/2020 fiscal year) , that number had grown to almost 23,000 (22,803) outstanding cases – a 43% increase.

March 31, 2020 is the last date for which annual caseload statistics are available so one can only speculate as to what the backlog might look like as we speak, but anecdotal evidence would suggest that the rate of disposition will not have been significantly improved over the course of the 2020/2021 fiscal year, so, yes, the government has a mess on its hands

Since March 2020 is the month that in-person hearings began to be closed down because of the pandemic, it is clear that the delay in case processing began as a pre-pandemic problem.

What caused these pre-pandemic delays?  In large part, the delays were caused by the failure of the government to re-appoint, in the normal course, dozens of adjudicators right across Tribunals Ontario.  The Landlord and Tenant Board lost almost one-third of its full time complement of adjudicators between 2018 and 2020.

Because of the delays, Tribunals Ontario was the single largest source of complaints to the Ontario Ombudsman in 2019/20 (other than correctional institutions), with almost 800 of the over 1000 Ombudsman complaints about Tribunals Ontario relating specifically to the LTB.

As a result, in January 2020, the Ombudsman launched an ongoing investigation into LTB delays. Significantly, landlords were the ones filing the bulk of the delay complaints because of course landlords are the applicants in 90% of LTB applications.

Somewhat ominously the Tribunals Ontario, 2019/20 Annual Report for the LTB  listed the legislation itself as the first of a handful of “systemic factors”, including training, funding and technology, that were being considered by the Ombudsman as root causes of delay.

But we are now in an election year, and it is unlikely that the government would now bring in new legislative changes that might face public criticism, as happened with its last round of amendments.

But the government doesn’t need legislative changes to reduce access to justice or to undercut tenant protections that may slow down dispute resolution.  We have already seen how the pandemic created the conditions that allowed the government to take away the right to an in-person hearing on an ongoing basis.  Online dispute-resolution processes (ODR) would be the next stage.

Note: The acronym ODR (Online Dispute Resolution) generally refers to the use of technology to settle disputes between parties through asynchronous [i.e., one party in the proceedings at a time] virtual communication.  ODR processes often rely on written submissions and negotiations only but may allow parties to access a neutral mediator or adjudicator to participate through electronic communications (written, videoconference or telephone) to assist in achieving resolution of the dispute.

ODR is promoted as an accessible, informal and flexible dispute resolution tool but it assumes that parties are equally positioned and able to resolve disputes by agreement.  It is a self-help approach to dispute resolution that assumes the users have, at minimum, computer literacy, language skills and knowledge of the mutual legal obligations triggered by the dispute. In Canada, ODR is used by Ontario’s Condominium Authority Tribunal and in British Columbia it is used by the Civil Resolution Tribunal, as well as by the Residential Tenancies Branch.

Academic research tells us some important things about the pitfalls of delivering justice in an electronic format.  There is more discussion of this in my paper (see reference above), but for today’s purposes, the following are worth noting:

  1. The research indicates that unrepresented parties are more likely to be unsuccessful if participating remotely in a hearing, as opposed to being there in person, particularly if they do so under less than optimal circumstances.  Refugees are more likely to be denied entry;  bail is more likely to be refused; benefits are more likely to be denied. It follows that tenants are more likely to be evicted.
  2. Adjudicators are less able to recognize and address vulnerabilities affecting a party’s participation where that individual is participating by videoconference – and by phone of course it is that much harder.
  3. Individuals participating by telephone or videoconference often perceive that they are receiving a lesser quality of justice and tend to participate at a reduced level, offer less information to support their claims, and are less likely to seek the assistance of duty counsel when that is offered.

As we know, although other tribunals in many jurisdictions will soon be returning to in-person hearings, Tribunals Ontario has announced that digital hearings are now going to be the norm going forward, with limited exceptions.  And those exceptions expressly do not include a lack of familiarity with the technology or access to a computer and the internet.

There are a few, perhaps obvious, reasons why this is a bad idea.

First, while there are some dispute resolution regimes where electronic hearings may be entirely appropriate, Tribunals Ontario is not that place.  Tribunals Ontario is in the business of delivering justice to large constituencies of low-income households, often without representation.

To state the obvious, again:

Tenants facing arrears applications, as well as applicants for Ontario disability benefits (which applications comprise the bulk of what comes before the LTB and the SBT)  – these respondents/ applicants disproportionately lack adequate internet access, computers, or even smart phones capable of supporting zoom hearings.  The data on this from Statistics Canada and the Canadian Internet Registration Authority is in my paper.

And of course, as a result, these tenants will also lack the user skills necessary to facilitate participation, even if they are offered access to a computer at a library or government office.

Many tenants will not have a private space in which to participate in a hearing, a factor that the IRB Refugee Protection Division has recognized as one of several minimum requirements for participation in an electronic hearing.

And as I know from my own experience with the Tenant Duty Counsel program in the past, individuals with literacy or language barriers, with mental health challenges, or without English or French fluency, make up a significant proportion of the population that the LTB is intended to serve.

The federal Social Security Tribunal has recognized all these as factors necessitating the option of an in-person hearing.

And finally we know from the recent survey conducted by lawyers at community legal clinics for the Advocacy Centre for Tenants Ontario, only about 30% of tenants at the LTB are represented or even receive legal advice prior to their hearings, whereas almost 78% of landlords are fully represented.

The Canadian Bar Association in its Covid-19 Task Force Report, recognized that unrepresented parties often lack the capacity as well as the technology to participate in electronic hearings.

It is, therefore, not surprising that tenants are twice as likely to participate by telephone as compared to landlords;  it is common for both the landlord and the adjudicator to be in a video hearing room while the tenant participates by phone and clearly at a disadvantage.

Again not surprisingly, clinics have observed that fewer tenants are attending digital hearings than in-person hearings, and particularly absent from hearings are very low income tenants or tenants with challenging disabilities that affect their ability to participate digitally.

Last Thursday, I sat in as an observer at the LTB hearing block that was dealing with arrears eviction applications from across the province.  It took about 90 minutes for LTB moderators to vet the list – to take attendance.  This means that tenants would phone in and be put on hold with no information until their case is called. And their case might not be called for over one hour.  They are on the phone, not in a hearing room; they can’t see what is happening.  No one checks in on them.  There isn’t even a message telling them what is happening or where they are on the list.

Of course, many assume they have been disconnected or forgotten.  They hang up and then they are evicted.  Many tenants were absent when their eviction case was called before the adjudicator.  There is no information available on how many tenants connect initially and then give up.

There were 8 or 9 Tenant Duty Counsel present at the hearing by videoconference.  Afterwards I talked to one who has been a clinic lawyer for about 30 years.  He told me that when hearings were in-person, he could help 9 or 10 people over the 3 hours that the tribunal was in session.  Since the advent of digital hearings, he has to be on the line for 8 or 9 hours in order to help typically only about 4 people.  And, across the province,  there were 7 or 8 other clinic lawyers at the hearing block I observed also forced to waste time while waiting for cases to be called so that they can offer to provide help to a tenant who is in their catchment area.

Although the LTB could continue to offer electronic hearings regionally, to match its long history of regional in-person hearings, it has not done so.  But municipal rent banks (which will often assist tenants in paying off arrears) are regional and legal clinics are regional.  By changing to province-wide hearing blocks, the LTB not only manages to make it more difficult for tenants to connect with local resources – legal and financial – but also wastes the time of legal clinic lawyers – a lot of time across the province.

This is not unimportant.  This is very important.  You do not improve access to justice by diminishing the capacity of the legal resources that are out there to help vulnerable parties. A digital system that wastes the resource of its partners in the justice system is not a good system.

There are other key components of this shift to a lesser quality of justice.

Because the government has refused to re-appoint LTB adjudicators appointed by the previous government, the government has in effect lobotomized the tribunal’s historical memory.  There are now precious few adjudicators who have a history of running in-person hearings in the before-times and who could mentor new appointees on how to run a fair hearing.

And although the Executive Chair will tell you that Tribunals Ontario is doing lots of stakeholder consultation, the list of stakeholders on a recent communication from the Associate Chair includes no tenant organizations, and multiple landlord organizations.

Yes, legal clinics are now being consulted and yes there have been improvements since that started happening, including the re-introduction of access to mediation during virtual hearing blocks.  But legal clinics had to go to the media before their concerns were heard and before any changes were made.

Across Tribunals Ontario, standing stakeholder committees have been abolished, removing a long-standing forum for regular feedback.

And I want to pause here and be clear, I am not saying that electronic hearings should not be part of the mix – an optional hearing format at Tribunals Ontario tribunals.  Participating by videoconference or telephone is a good option for some parties, for a variety of reasons, including eliminating travel time and accommodating some persons with disabilities.  I know that in the Rainy River / Fort Frances area, the LTB worked with the local legal clinic many years ago to operate electronic hearings with access to Tenant Duty Counsel. This is a local model developed in a collaborative effort between the legal clinic and the Board and I understand it works or at least it did work during the time that I was at ACTO. I am not sure how this local model has fared in the brave new world of all electronic hearings, all the time, all across the province.

Based on what we have heard today already, I think that there are some minimum safeguards that need to be in place before moving forward in the post-pandemic period.

Choice of hearing-format is key to fairness.

This is not a new idea.  The IRB Refugee Protection Division, for example, requires consent from the refugee claimant before proceeding by electronic hearing.

There must be a simple straightforward process for applicants to choose an in-person hearing, as opposed to a telephone or videoconference. It actually should be a welcoming process. For example, the federal  Social Security Tribunal (SST) expressly recognizes that many people lack internet access and skills, and are unable to participate effectively in an electronic format.  The SST provides navigator support to help applicants determine the best hearing format to meet their needs.

There needs to be a simple form for a party to request an in-person hearing. If either party requests an in-person hearing, it should be offered.  It is always open for the non-requesting party to participate by videoconference or telephone by choice.

As it stands now, the process is neither readily accessible nor simple.  The LTB Associate Chair says in a May 14th Memo to Stakeholders:

Our digital-first approach is not digital-only. Tribunals Ontario’s Practice Direction on Hearing Formats outlines the approach to determining the format of the hearing that will be held, and how a party can request a different hearing format.

It is at least misleading to suggest that there is any practical information in the Practice Direction that would help a tenant or a landlord in making a request for an in-person hearing.  The Practice Direction basically lists all the reasons why you are unlikely to get an in-person hearing and provides no request form or step-by-step information on how to make a request.     And, in contrast to other tribunals like the SST and the IRB, the LTB Practice Direction makes it clear that lack of access to technology will not be accepted as a reason for requesting an in-person hearing.

Transparency and accountability are key.

There are many aspects to this.

First and foremost, we need published decisions.  The LTB has always only published selected decisions, but under the current leadership, this practice has slowed to a dribble.  There have been no decisions published at all for 2021, and only just over 600 for 2020.  In prior years, 2000 or more decisions were published on CanLii annually.

Beyond decisions, we need comprehensive statistical data in Annual Reports (and also quarterly on the tribunal website), including on:

  • How many tenants and landlords request and receive in-person hearings
  • Comparative outcomes between in-person hearings and electronic hearings.
  • How many landlords and tenants are represented, and whether by lawyers or paralegals, tenant duty counsel or clinic lawyers
  • The breakdown on participation by telephone and videoconference, broken down by landlord and tenant.
  • Disposition information on all types of applications.
  • Breakdown of information on hearings where parties are participating in mixed ways – that is, one party by phone, one by videoconference.

The Tribunal must in fact have most of this information available now.  There is no reason why the public shouldn’t have access to it.  It is ridiculous that Tenant Duty Counsel had to send observers to multiple hearings to get data on representation rates, for example.

And certainly we can be sure that the new $28 million case management system will be able to generate all kinds of statistical reports.  The public has the right to see how, and if, justice is being done.

And now I want to consider briefly this new case management system that is in the works and will apparently be launched at the Landlord and Tenant Board this summer.

I just want to mention as an aside that $28 million to build this system could go a long way if used instead to address the plight of disabilty benefits applicants who are now waiting 18 months or longer for their appeals to be heard by the Social Benefits Tribunal. We know that most of these appeals are typically successful. The delay means that applicants are forced to live on much-lower welfare support because the government cannot be bothered to put its ample resources into a speedy plan to get their appeals heard.

Anyway, as we have heard, the Executive Chair has promised that the new system will mean more and faster pre-hearing resolutions if, and I quote, “if a hearing is needed at all”.

This is a loud and clear indication that the plan is to introduce a model like the one in British Columbia today, where the goal is to produce speedy resolutions that do not necessarily reflect the statutory rights of the parties.  It is the “let’s make a deal” school of dispute resolution.

And this approach is already well under way in the new case management hearings that are now being conducted by LBT staff, not appointed adjudicators, with no tenant duty counsel present. This is in effect a separate stream, introduced through a change to the LTB practice rules, that detours eviction applications around Tenant Duty Counsel , and results in many settlement agreements without tenants having the benefit of legal advice.

I think that it would be possible to build an online dispute resolution program for landlord and tenant disputes that could be helpful to some portion of the user public

  • if it was optional,
  • if it connected tenants to Tenant Duty Counsel,
  • if it strictly incorporated all the legal protections in the legislation so that eviction applications that did not meet statutory timelines, for example, were kicked out of the process.

But the devil is truly in the details when a dispute resolution tool like this is being created.  Jennifer Raso, a law professor at the University of Alberta has done some interesting work on how substantive justice can easily be diminished in the design of ODR systems. (See Implementing Digitalization in an Administrative Justice Context).  

Her work also documents how when access to adjudication moves online, other avenues to assistance are often shut down – local offices closed, reduced telephone access to a real person who can help when things go wrong. This is exactly what has happened at the LTB.

And her work also emphasized how often errors and mistakes can be built into online dispute resolution tools.  These errors can produce substantially unfair results that go unnoticed or when recognized can be extremely difficult to correct.  For example, she gives several real-life examples of changes in law or policy which were not included in updates to the online dispute resolution tool so that users did not receive the benefit of the reforms for a period of months.

Her work points to another danger with online dispute resolution – it is not transparent; it is not public; it is very difficult to monitor.

Despite all these reasons for concern, to date, there has been little or no consultation about the critical structure and content issues with this new dispute resolution tool, with tenant and landlord organizations or with legal clinics and the practicing bar, even as the new system is being constructed.   But don’t worry, the Executive Chair tells us that this will be a “fair and accessible dispute resolution in a user-friendly manner”.

How can we trust this?

What we have right now at the LTB is a perfect storm.

  • Inexperienced adjudicators who are insecure in their appointments
  • They have seen experienced colleagues with subject matter expertise and demonstrated adjudication and mediation skills, let go, one by one.
  • Presumably the new adjudicators all left good jobs. They will want to keep their current positions.
  • But their own experience suggests that subject matter expertise and mediation/adjudication skills are not valued – adjudicators with experience and skills were replaced by people with comparatively little of either.
  • The tribunal leadership across Tribunals Ontario for the most part lacks subject matter expertise and mediation/adjudication experience.
  • Clearly not a qualification for the job.
  • What are these new adjudicators going to assume is the ticket to reappointment? Given the enormous backlog and the emphasis on speedy case resolution – preferably resolution without a full hearing – the ticket to a reappointment would seem to be a track record of moving applications through and out as quickly as possible.
  • And if there are few if any decisions published, who is really watching out for the quality of the work?
  • This is a formula that will destroy substantive fairness – by which I mean: case resolutions that match the substantive rights of the parties under the legislation.
  • Tenants have many procedural and substantive rights that can support dismissal of landlord applications. But if no one tells them that they have those rights, if the pressure is on settlement, if it is difficult to access Tribunal Duty Council but easy to be isolated in a virtual room with a case management officer or a mediator, then likely as not, the tenant is going to give up and agree to something that is not in keeping with their entitlements.
  • A study of the BC Civil Resolution Tribunal found that a significant number of respondents to a user survey felt that the online decision-makers did not have the appropriate legal expertise to determine their rights fairly and competently.  And were not determining the outcome of their applications consistently with the law.
  • You can have great legislation on the books, but if your dispute resolution system is built to produce easy and early settlements mc’ed by adjudicators or by tribunal staff that are not trained to place value on substantive rights and statutory protections, then the laws remain on the books but don’t contribute to just resolutions.
  • And the scary thing is this can all happen almost invisibly. It is not accidental that the BC government first gutted the legal aid system.  So that there were fewer advocates to raise the alarm and to document the changes.

Under cover of “modernization” and “digitalization”, and in the name of greater access to justice, it is possible to silently minimize the likelihood of tenants being able to effectively claim and benefit from their substantive entitlements in the legislation.  This is what is Ontario tenants may well be facing today.

 

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