Section 184 of the Residential Tenancies Act, 2006 (the RTA) provides that the Statutory Powers Procedure Act (the SPPA) applies to all proceedings before the Board; and the authority to adjourn hearings is found in section 21 of the SPPA which provides that:
A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.
This guideline addresses requests to reschedule or adjourn a Board hearing.
For the purposes of the Guideline, rescheduling and adjourning are defined in the following way:
Rescheduling involves staff setting a new date for the hearing in advance of the date originally set for it, usually confirmed by a new Notice of Hearing;
Adjourning involves the Board's decision regarding when the hearing of an application scheduled for a specific day will actually proceed and/or be completed.
Section 183 of the RTA directs the Board to "adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter."
Parties should assume that the hearing will proceed on the date stated in the Notice of Hearing. This means that the parties should be prepared to present their evidence, call and question witnesses and make their submissions.
Section 7 of the SPPA provides that a tribunal may proceed with a hearing in the absence of any party.
Where an applicant fails to appear, a notice of hearing has been sent to the parties and the matter has not been adjourned or rescheduled, the Member will proceed with the hearing, which means the applicant's case will be dismissed as abandoned, whether or not the respondent has attended.
Where the respondent fails to appear, a notice of hearing has been sent to the parties and the matter has not been adjourned or rescheduled, the Member will proceed with the hearing, and will make a decision based on the evidence provided by the applicant at the hearing.
Not preparing for a hearing based on the expectation that it will be rescheduled or adjourned has substantial risk. If the Member decides to proceed with the hearing on the date set, only the evidence presented at the hearing will be considered.
If a party cannot attend a hearing, will not be prepared to proceed on the date set out in the Notice of Hearing or believes that applications scheduled on different dates should be heard together they may ask the other parties if they consent to rescheduling the hearing to a different date. They should request rescheduling as soon as possible after they realize it is necessary.
The Board will reschedule a hearing if the party seeking the rescheduling is able to obtain the agreement of the other party or parties (Rule 21.1). The request must be provided to the Board as soon as reasonably possible and not less than five full business days before the scheduled hearing.
If a tenant requests rescheduling, they should deal with the landlord's representative, if there is one, or with the landlord directly. If there are multiple landlords, the agreement of each must be obtained.
When a landlord requests rescheduling, they should deal with the tenant's representative, if one exists, or with the tenant directly. If there is more than one tenant, the agreement of each must be obtained.
Parties should respond promptly and reasonably to requests from another party to reschedule. If a party is found to be unreasonable in their response to a rescheduling request a Member may order the party to pay costs to the other party.
The party seeking the hearing's rescheduling should submit a written request to the Board at least five business days before the schedule hearing, preferably in the form provided by the Board. The written request must include:
A copy of the request should also be sent to the other party(ies), or, their representatives.
The parties must contact the Board to learn whether the request has been granted.
If the request is granted, Board staff will reschedule the hearing and the parties, or their representatives, will be advised of the rescheduled hearing date by way of a new notice of hearing.
If the Board does not grant the request, the hearing will proceed on the originally scheduled date and the parties or their representatives must attend.
As discussed below, the party or their agent may request an adjournment at the beginning of the hearing which may be granted or denied.
On occasion, circumstances may arise which prevent a party from following the Board’s requirements for rescheduling a hearing. For example, a party has repeatedly attempted to contact the other parties to request their consent to reschedule a hearing and has not received a response, or a party has an important medical procedure scheduled at the same time as the hearing and the other parties have unreasonably refused to consent to the request to reschedule the hearing.
In such circumstances a party may submit a request to reschedule the hearing as soon as reasonably possible. The party should explain why they failed to obtain the consent of the other parties or why the request was made less than 5 business days before the hearing. The party should include with their request any documents which may tend to support the explanation provided in the request.
The request will be considered by a Member or Hearing Officer. The request may be granted if the Member or Hearing Officer is satisfied that it was not reasonably possible for the party making the request to comply with Rule 21.1. If the Board does not grant the request, the hearing will proceed on the originally scheduled date and the parties or their representatives must attend.
On rare occasion last minute unforeseen events such as bad weather or a sudden serious illness may prevent a party from attending a hearing. In such circumstances the party should notify the Board by telephone as soon as they become aware of this, and inform the other party or their representative, as well. The application will remain on the list of hearings for the scheduled time, but the Member will be advised of the telephone message, where possible. If the Member is satisfied that the circumstances are exceptional, the Member may adjourn the hearing without the party being present.
It may be necessary from time to time for the Board to reschedule a hearing on its own initiative. For example, the Board may determine that it is necessary to reschedule a hearing to a different date in order to ensure that a sign-language interpreter is available, or because a seized Member must hold the hearing. In such cases, the original hearing will be cancelled, and the parties and their representatives will be notified.
Parties are expected to make any necessary arrangement to proceed with a case management or merits hearing on the date set out in the Notice of Hearing. The granting of adjournments is at the discretion of the Member hearing the application or the Hearing Office conducting the case management. Pursuant to s. 21 of the SPPA, an adjournment will only be granted by the Board if it is required to permit an adequate hearing to be held.
Where the Member is satisfied that the party has received sufficient notice of the hearing and has been provided with an adequate opportunity to prepare their evidence and submissions, summons witnesses and obtain counsel ahead of the hearing date, an adjournment is not usually granted unless there are exceptional circumstances.
The specific factors the Member may consider in deciding whether to grant an adjournment include:
The Member may consider the conduct of the party opposing the adjournment. For example, if the party opposing the request has shown bad faith or refused to provide information about their case to the other party which would allow them to prepare quickly for the hearing, this may affect the Member’s decision.
A request for an adjournment should be made at the beginning of the hearing.
If the Member grants the request, the hearing will be adjourned to a date set by the Board, although the parties will usually have an opportunity to offer some preferred dates.
If the matter is adjourned before evidence is heard on the merits of the application, the Member is not "seized" with the application, thus the same Member is not required to conduct the hearing on the adjourned date. However, if the request is made part way through a hearing, the Member may be seized because they heard evidence. In such a situation, the hearing will be adjourned to a time when the same Member can continue the hearing.
Section 10 of the SPPA states that a party may be represented by a representative at a hearing. However, the right to representation is not absolute and an adjournment is not automatically granted when it is requested on this ground. The onus is on the party wishing to be represented to make all reasonable efforts to find a lawyer or paralegal able to represent them at the hearing once they become aware of the hearing date.
A short adjournment may be allowed where a representative has been retained but is unavailable on the date set for the hearing, or where the party can demonstrate that they have made reasonable efforts to retain a lawyer or paralegal before the hearing but have not yet been able to do so.
If a respondent has filed their own application against the applicant and it has been scheduled to be heard on a different date, the respondent should ask to have both applications heard together before the hearing using the Board’s rescheduling procedures discussed above.
If the respondent asks for adjournment for this reason at the beginning of the hearing this request will generally only be granted if the respondent's application will affect the outcome of the application being considered. The Board does not generally grant an adjournment on the ground that the respondent intends to file an application against the applicant.
Both parties are expected to be prepared with their evidence, witnesses, and submissions on the scheduled hearing date, and adjournments are not generally granted because a party is not prepared to proceed.
If a party requests an adjournment to acquire necessary evidence or secure the attendance of a witness, the Member may consider whether the party attempted to acquire the evidence or witness as soon as they became aware it would be required. The Member may also consider whether options other than adjournment are sufficient, such as taking a short recess, proceeding with the hearing and reconvening the hearing at a later date to consider the additional evidence or witness’s testimony, or accepting the evidence on a post-hearing basis.
If the applicant's claims are unclear or not detailed enough to allow the respondent to know what evidence they must present at the hearing, the Member may consider whether the application should be dismissed or adjourned to permit the applicant to provide further details. In deciding whether the claim is sufficiently complete and clear, the Member will evaluate the application, documents filed with it and any information the respondent already has.
During a hearing for a landlord application for rent arrears (section 87 of the RTA) or for termination of the tenancy for rent arrears (section 69 of RTA), a tenant may raise any issue that could be raised in a tenant application under the RTA if they follow the requirements contained in Rule 19.4 (sections 82(1) and 87(2) of the RTA). That Rule states that the tenant must provide the landlord and the Board with a detailed description of each issue the tenant intends to raise and a copy of all documents, pictures and other evidence that the tenant intends to rely upon at least seven days before the hearing, unless the Board orders or directs otherwise.
If the tenant has complied with the disclosure requirements in Rule 19.4, the tenant should be prepared to proceed with their claims under section 82 on the scheduled hearing date. The Board does not generally grant adjournments to allow a tenant to obtain evidence or prepare their claims under section 82.
If a tenant has complied with the disclosure requirements in Rule 19.4, the Board will not generally grant a landlord an adjournment to allow the landlord to prepare a response to the issues raised by tenant.
If the Board permits a tenant to raise issues under section 82 at the hearing without having complied with disclosure requirements in Rule 19.4 and the landlord could not reasonably have anticipated that the tenant would raise these issues and cannot address them at the hearing with a short recess, the landlord may request an adjournment for the purpose of responding to the tenant's claims and obtaining relevant evidence.
A party who requires accommodation under the Human Rights Code or requires French Language Services should contact the LTB as soon as possible so that the necessary arrangements can be made for the hearing.
At the beginning of a hearing a party may request an adjournment on the ground that the Board is unable to accommodate their needs or their request for French Language Services. If the Member determines that it is not possible to accommodate the needs of the party at the hearing, an adjournment may be granted.
Further information respecting the Board's accommodation practices can be found in the Board's Human Rights Interpretation Guideline.
Further information respecting the Board's French Language Services can be found in the Tribunals Ontario French Language Services Policy.
The Board may impose conditions if an adjournment is granted. Examples of conditions that may imposed: