Request to Re-Open an Application
- 1 Statutory Basis
- 2 Material Misrepresentations
- 3 Medial Problems
- 4 Evidence Not Available
194 (1) The Board may attempt to mediate a settlement of any matter that is the subject of an application or agreed upon by the parties if the parties consent to the mediation. 2006, c. 17, s. 194 (1).
- (2) Despite subsection 3 (1) and subject to subsection (3), a settlement mediated under this section may contain provisions that contravene any provision under this Act. 2006, c. 17, s. 194 (2).
- (3) The largest rent increase that can be mediated under this section for a rental unit that is not a mobile home or a land lease home or a site for either is equal to the sum of the guideline and 3 per cent of the previous year’s lawful rent. 2006, c. 17, s. 194 (3).
- (4) If some or all of the issues with respect to an application are successfully mediated under this section, the Board shall dispose of the application in accordance with the Rules. 2006, c. 17, s. 194 (4).
206 (1) Where a landlord has made an application under section 69 for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 59 or an application for payment of arrears of rent, or both, the Board may make an order including terms of payment without holding a hearing if,
- (a) the parties have reached a written agreement resolving the subject-matter of the application;
- (b) the agreement has been signed by all parties; and
- (c) the agreement is filed with the Board before the hearing has commenced. 2006, c. 17, s. 206 (1).
- (2) In an order under subsection (1), the Board may, based on the agreement reached by the parties, order,
- (a) payment of any arrears and NSF cheque charges or related administration charges that are owing;
- (b) payment of the fee paid by the landlord for the application to the Board; and
- (c) payment of any rent that becomes due during the period in which the arrears are required to be paid. 2006, c. 17, s. 206 (2).
- (3) In an order under subsection (1), the Board shall not order that the tenancy be terminated or include a provision allowing for an application under section 78. 2006, c. 17, s. 206 (3).
1. On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.
5. This allegation in the request to re-open means the relevant test to be met is that set out in Rule 13.14 of the Board’s Rules. It says:
- Either party to an agreement resulting from mediation by the LTB may request in writing that the application be re-opened on the basis that, during the mediation, the other party coerced them or deliberately made false or misleading representations which had a material effect on the agreement.
6. The commentary to this Rule helps explain this test and says in part:
- If a party claims that the mediation which resolved the application was affected by another party's coercion or misrepresentation of material facts, the application may be re-opened to review that issue. The first issue at the hearing will be whether there was any coercion, misrepresentation or the furnishing of misleading information.
7. So the issue before the Board on the hearing of the Tenant’s request to re-open was whether or not the Landlord lied to the Tenant or otherwise misled her or coerced her into signing the mediated agreement.
2. For the reasons stated below I am satisfied that with respect to the Tenants’ request to re-open it is not appropriate for the Landlord’s Representative to act as both witness and advocate. The request is adjourned so the Landlord may retain alternative legal representation. The Tenants may speak to costs of the adjournment at the hearing of the request for review. I am not seized of the request to re-open.
4. The Tenants’ request to re-open alleges that during the course of the mediation the Landlord’s Representative said to the Tenants that the Landlord had a buyer for the residential complex.
5. The Tenants allege that this statement was a material misrepresentation. The reason they allege the statement is material is because paragraph 5 of the mediated agreement says that if the residential complex is sold by July 31, 2014, the Landlord will pay the Tenants $2,000.00. In other words the Tenants are alleging they signed the agreement because they were led to believe they would be receiving an additional $2,000.00 as a result of the Landlord’s Representative falsely telling them a sale was assured and imminent.
6. What this means is that the Landlord’s Representative will be a key witness with respect to whether or not the alleged misrepresentation was actually made.
7. In addition to being a licensed paralegal under the Law Society Act the Landlord’s Representative is also a licensed real estate agent and acts for the Landlord in that capacity with respect to the Landlord’s attempts to sell the residential complex.
17. I say this because an advocate’s primary obligation is to promote the interests of his or her client, but a witness’s sole obligation is to tell the truth, the whole truth and nothing but the truth to the trier of fact. Where the truth might arguably not assist his client, the advocate witness will be conflicted and presumably feel pressure to tell less than the whole truth. In such a situation not only is the evidence potentially tainted but the giving of it brings the administration of justice into disrepute.
18. Here, the possibility of a financial interest on the part of the Landlord’s Representative in the outcome is yet one more reason why the credibility of his testimony will no doubt be hotly contested. Given the allegations in the request to re-open his credibility as a witness will be a central issue in the proceeding.
1. The Tenant testified that on the date of the mediated agreement, she had suffered a recent death in her family and was heavily medicated for pneumonia. She did not speak with Duty Counsel prior to entering into the mediated settlement on that date. She stated that she simply wanted to leave the hearing site and agreed to the agreement in haste. Only when she arrived home did she realize that the figures in the agreement appeared incorrect.
2. I do not find that the Tenant’s voluntary choice not to properly review the terms of the agreement constitutes grounds to re-open the application. If the Tenant was confused by some aspect of the proceedings, I find that she could have and should have brought these issues to the hearing member’s attention at the hearing. Similarly, she could have requested an adjournment. She did neither and instead consented to the terms of the order. As a more practical matter, if the Tenant was uncertain over the implications of the proposed consent order, she could have simply refused to agree to the terms as stated by the mediator. As a matter of process, the application would have then proceeded to a contested hearing on its merits.
3. An order issued on the consent of the parties is a binding contract and represents a final determination on the issues. In Mohammed v. York Fire and Casualty Insurance Co., the Ontario Court of Appeal explained the public policy for restricting the possible avenues for setting aside such orders:
- Minutes of settlement are a contract. A consent judgment is binding. Both are final, subject to reasons to set them aside. Finality is important in litigation. This is so for the sake of the parties who reached their bargain on the premise of an allocation of risk, and with an implicit understanding that they will accept the consequences of their settlement. Finality is also important for society at large, which recognizes the need to limit the burden placed on justice resources by relitigation, a limitation reflected in the doctrine of res judicata.
4. In Joshi v. Joshi, the Ontario Superior Court specifically examined the limited grounds for setting aside a consent order:
- Based on the jurisprudence, in order to set aside a consent order, there must be proven grounds of common mistake, misrepresentation, fraud, or any other ground which would invalidate contract or, alternatively, a material change in circumstance occurring after the consent order: Gibson v Gibson (2002) O.J. No. 174 paras. 15-16; Masters v MIS International Inc.,  O.J. No. 3524 and see Rosen v Rosen 1994 CanLII 2769 (ON CA), (1994) O. J. No. 1160 (O.C.A.).
2. The Tenant’s review request says in part:
- On the day of the proceeding, I did not have my glasses and was told to sign the document that I had to pay the amount owing by March 15th. When I went home, I asked the Landlord to provide me with a breakdown for the last year. Upon reviewing the ledger, and receipts that the father of my child had… there is a serious error in the amounts that were agreed upon.
10. It may be that after the Tenant consented to the order she regretted doing so and came to be of the opinion that the amount ordered is wrong. That is not a valid reason for review. The Board has not made an error; rather, the Tenant is claiming she did.
11. The Tenant had an obligation to come to the hearing prepared so if the Landlord’s numbers were wrong she should have come to that conclusion before the hearing and argued it at a contested hearing. But she did not. She consented to the amount owing and to the order that issued. She explicitly gave up her right to a contested hearing.
12. Generally speaking a consent order will not be set aside on review except in a limited number of circumstances: common mistake, fraud, duress, misrepresentation, lack of capacity or unconscionability.
13. The Tenant’s review does not actually allege any of these circumstances although it does state that the Tenant approached the Landlord to tell it that in her view the amount ordered is incorrect. The review request explicitly states the Landlord disagrees with the Tenant concerning her belief that the amount owing is incorrect, so it cannot be said the review request alleges a common mistake of fact.
15. Given all of the above, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.
14. On a request to re-open, a party can allege that an illness or disability rendered them incapable of consenting and ask that the mediated agreement be set aside. Such a basis for re-opening a mediated agreement is not explicitly articulated in the Board’s Rules but it can be done and it has been done.
15. The Tenant here did not allege in the request to re-open that the depression and anxiety she was experiencing made her mentally incapable of agreeing to the mediated agreement; nor does she actually allege that in the request for review. If the Tenant wished to make such an argument it should have been done at first instance and not on review and she should have come to the hearing prepared to present medical evidence in support of the allegation of incapacity. The review request does not include any medical evidence.
16. In other words, the Tenant’s statement in the review request that at the time the mediated agreement was signed she was suffering from depression and anxiety does not support the conclusion that the Board made a serious error in denying the request to re-open.
17. A similar analysis applies to the statement in the review request with respect to the Tenant’s apparently mistaken belief that she needed to enter into mediation and accept the agreement or face eviction.
18. A party to a mediated agreement can request re-opening if the agreement was entered into as a result of coercion. The Tenant’s belief that she was at risk of eviction when it is more likely than not the application for eviction would have been dismissed following a hearing, does not constitute coercion by the Landlord.
23. A mediated agreement is a form of contract. At common law if a contract is clearly unfair or oppressive and the circumstances are such that it suggests abuses occurred during its formation, a court may find it unconscionable and refuse to enforce it. In other words there is both unfair bargaining and an unfair result.
24. The problem with this argument in the circumstances here is that no matter how unfair the Tenant feels the result to be, the Tenant had meaningful choices and she was not taken advantage of by the Landlord. The Tenant knew or ought to have known free legal advice was available to her. Duty counsel was at the Board on the day she signed the mediated agreement. She could have accessed it if she wanted to. She simply chose not to.
25. As the Board correctly observes in the order that is the subject of this request for review:
- The Tenant now regrets the agreement she signed since she was unable to make the agreed upon payments. However, that regret is not a permitted basis to re-open an application.
Evidence Not Available
1. By way of background, order TET-80756-17 is a consent order that was issued after the parties had been assisted by a mediator.
2. In her request, the Landlord says that there is a serious error in order TET-80756-17 because the mediator prevented the Landlord from going home to gather her evidence and the mediator pressured her into agreeing to the terms in the consent order. The Landlord would like the Tenant’s application re-opened so that it can be scheduled for a hearing.
3. On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings. I say this for the following reasons.
5. The Board file indicates that a notice of hearing was mailed to the Landlord on May 29, 2017. The notice of hearing contains detailed instructions regarding what documents the parties should bring with them. In particular, the notice instructs parties that they “should be ready to present any evidence you need to support your case. Make sure to bring 3 copies of any evidence you with to use (for example: receipts or pictures) and any people you want to use as witnesses.”[Emphasis added.]
6. The Landlord had these instructions almost two months in advance of the hearing on July 24, 2017, and had ample time to gather and prepare any evidence she wished to present and then bring those documents with her to the hearing. I understand that the Landlord may now regret not bringing that evidence with her, but a review is not an opportunity for the Landlord to re-argue her case in order to change the outcome of events. As a result, this portion of the Landlord’s request to review must be denied.