Courts in Canada have always been open and accessible to the public. Before the pandemic shut down the Landlord and Tenant tribunal I sat in the gallery a few times, observing testimony. Now that the Landlord and Tenant Board (LTB) uses the internet to hear cases, a person can observe the proceedings via an internet link. Decisions rendered in a court or tribunal can be found on the Canadian Legal Information Institute (CanLII) . Most courts and tribunals post the names of the parties before the judge or adjudicator, but the LTB would post the decisions with the names of the litigants removed and replaced with initials. Thus, if a tenant was evicted, they would remain anonymous. All that changed when the Toronto Star went to court challenging the tribunal secrecy and won in Superior Court.
Justice Edward Morgan ruled it was an “infringement” of the Charter of Rights and Freedoms to deny public access to tribunal records.
The judge gave the province one year to make the tribunal system more accessible to journalists and the public. Morgan declared as “invalid” provisions of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) that delay or block open access to tribunal records.
“In fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around,” Morgan ruled. “Emphasizing privacy over openness not only has a negative impact on the press … Problematic landlords, police, and other actors, including repeat human rights offenders, vexatious litigants and the like cannot be discovered by members of the public who have to engage with them.”
Thus, beginning in 2020, the LTB started to post the names of the people involved in the hearing. Still, there were problems. When other tribunals released their decisions soon after they had been completed, the LTB held back information for months. At time of writing the board is three months behind.
If you thought that all decisions rendered by the LTB end up on the CanLII database, you would be wrong. A landlord recently evicted a “professional tenant” (a term used often to describe tenants who abuse the system to avoid paying lawful rent) and learned she had been evicted by several landlords in the past. This particular landlord, through a Freedom of Information Request, learned he was the sixth victim of the fraudster. He was able to get the case numbers of the previous five eviction decisions against her. When he tried to search for those cases in CanLII, he found none of the eviction decisions against her were in the databank. Finally, after long delays the landlord got his case heard and he won. But once again the decision was not posted on CanLII. The reason was that the LTB had withheld it. Angry and determined, the landlord sent the decision copy he had to CanLII and they promptly published it.
How many other decisions has the LTB decided, for reasons unknown, to withhold? The LTB is the judicial body responsible for enforcing the rule of law of the Residential Tenancy Act in Ontario. And yet, when it comes to disclosing public information that the Superior Court Judge ruled they must, they seem to follow their own rules. The LTB is making a mockery of Canada’s Open Court tradition.
By by Maria Watson
Follow this series of articles by clicking the links:
Surprising information which a Landlord can find on CanLII
CanLII: a valuable, yet imperfect tool for Ontario Landlords
CanLII, the media and the Ontario Landlord
The opinion expressed does not reflect the official position of Small Ownership Landlords Ontario Inc. They are to be construed as the opinion of the author only.
