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This Practice Direction addresses how parties to a Landlord and Tenant Board (LTB) proceeding are to format and serve the LTB and the other parties with copies of the materials they wish to rely upon at the hearing, and how the LTB deals with this anticipated evidence.
If you do not follow the requirements set out in this Practice Direction and/or under the LTB Rules of Procedure, your materials may not be considered at your hearing.
Anything a party wishes to rely upon at a hearing to support their case may be considered evidence. This includes documents, pictures, and physical objects, and electronic items such as audio or video recordings, pictures stored in electronic format, emails, text messages, social media posts. Only relevant evidence should be provided.
Caselaw and written submissions containing legal argument may be accepted by the Member during the hearing but are not considered evidence.
The rules governing by when a party must disclose their anticipated evidence to the other parties and the LTB are contained in Rule 19 of the LTB Rules of Procedure.
Rule 19.7 states that a party who fails to comply with the disclosure rules or an order or direction made by the LTB for disclosure may not be permitted to rely on the evidence at the hearing.
An item does not automatically become evidence once it has been given to the LTB or the other parties. It is up to the LTB Member hearing the application to decide whether to accept an item as evidence during the hearing.
Reasons an LTB Member may not to accept an item as evidence include, but are not limited to, the following:
Any item that has not been accepted by the Member as evidence during the hearing will not be considered by the Member in making their decision.
The Member may also tell the parties how and when to present their evidence during the hearing.
All documents, photographs and other items provided to the other parties and the LTB as evidence must:
Depending on how you submit your anticipated evidence to the LTB, only specific electronic formats may be accepted so be sure you have reviewed the requirements below and provide your materials in accordance with this Practice Direction.
Each document and attachment should only be filed once. Parties should not submit the same item more than once, should not send emails to multiple LTB email addresses, or submit the same materials in different formats, unless the LTB directs this.
The LTB may refuse to accept materials that are unduly lengthy or repetitive.
Documents or attachments which do not comply with this Practice Direction may be returned and the party will be instructed to refile according to this Practice Direction and the Rules.
Communications and materials which relate to more than one application cannot be submitted together. A separate submission must be sent to the LTB for each application and materials relating to each application must be filed separately. The exception to this are combined applications e.g., an L1/L2 or T2/T6 filed at the same time, or where applications have been ordered to be heard together by the LTB.
In accordance with Rule 19, all parties must provide the other parties and the LTB with a complete copy of the evidence they intend to rely upon at least 7 days before the hearing or 5 days in the case of responding evidence, unless the LTB orders or directs otherwise. Responding evidence is something that addresses an issue raised by the other party's evidence. This rule also applies to Case Management Hearings (CMH).
A tenant who intends to raise issues under sections 82(1) or 87(2) of the Residential Tenancies Act, 2006 during a hearing for a landlord's application about rent arrears must provide the other parties and the LTB with the following at least 7 days before the hearing:
Tenants may use the "Issues a Tenant Intends to Raise at a Rent Arrears Hearing form" to disclose their issues.
The landlord must file any evidence intended to respond to the tenant's section 82 issues at least 5 days before the hearing.
Uploading materials to the Tribunals Ontario Portal (TOP) does not mean materials have been provided to the other parties unless you have entered into a written consent agreement that specifically provides for this, as discussed below.
In accordance with Rule 10, a landlord who has filed an application about rent arrears must provide the LTB and each tenant with a completed copy of the "L1/L9 Application - Information Update" at least 5 days before a hearing being held by videoconference, telephone or in writing. If the hearing is being held in person, the landlord must bring 3 copies of the "L1/L9 Application - Information Update" to the hearing.
It is up to the LTB Member hearing the application to decide whether to accept anticipated evidence provided by a party after the deadlines set out above. In making the decision, the Member may consider any submissions from the parties. Factors the Member may consider include, but are not limited to:
A Member may also decide to permit a party to submit evidence or submissions in writing by a specified deadline after the hearing.
If a tenant wants to raise issues under sections 82(1) or 87(2) of the Residential Tenancies Act, 2006 during a hearing for a landlord's application about rent arrears but has not provided the required disclosure by the deadlines set out above, the tenant must provide an explanation satisfactory to the LTB Member explaining why the tenant could not comply with the requirements.
To help ensure your anticipated evidence is placed in the correct file in a timely manner you should submit your materials to the LTB as follows:
Unless you and the other parties have agreed in writing to accept service through TOP, you must also serve the other parties with a copy of all the materials you upload into TOP by the deadlines set out above. The parties can use the Consent to Disclosure through Tribunals Ontario Portal form for such an agreement. To upload the form, login into TOP, choose your file number and select "Documents, Evidence and Requests," and pick "Consent to Disclosure through TOP" in the dropdown menu.
If you are trying to send the LTB evidence by email that meets the technical requirements set out above, but it cannot be successfully sent, the issue may be limitations or restrictions imposed by your email provider.
If you are unable to upload your materials to TOP or send your anticipated evidence to the LTB by email due to size of the file, you may ask the LTB for permission to provide the evidence using the Ontario Sensitive Content Management (SCM). You should email the request to the LTB email address identified in the Notice of Hearing. If your request is granted, you will receive an email from the LTB with instructions on how to send your file to the LTB using SCM.
Evidence cannot be sent to the LTB using cloud-based delivery document platforms, such as iCloud or Dropbox.
If you are unable to upload your materials to TOP, or email your anticipated evidence to the LTB or use SCM, you may mail your anticipated evidence to the LTB. You can also file your documents in-person at a ServiceOntario location that accepts documents on behalf of LTB. If your anticipated evidence can be made available in hard copy, such as documents or printed photos, you may mail the hard copy to the LTB. You should keep the originals and mail a copy. Documents sent to the LTB will not be returned. Electronic evidence should be contained on a USB stick in one of the formats set out above. The USB stick will not be returned to you. It is the parties' responsibility to ensure that the evidence is received by the LTB by the deadlines contained in Rule 19.
The LTB encourages parties to discuss how to exchange their anticipated evidence to ensure that it is received on time and in a format that all parties can access. In many cases email may be the best way for the parties to exchange their materials. However, if a party does not agree to receive disclosure by email, the other parties must provide that party with a hard copy of all the evidence on which they intend to rely by the deadlines in Rule 19. Anticipated electronic evidence that is not emailed should be given to the other party using a USB stick in one of the formats set out above, unless the parties agree on another method or format.
A party wishing to rely upon electronic evidence, such as an audio or video recording, must be able play the recording during the hearing in a manner that will allow all the participants and the LTB Member to hear or view the recording. The LTB will not provide any hardware or software necessary for a recording to be played. This is the responsibility of the party intending to rely on the electronic evidence.