In 2020, the Ontario Landlord and Tenant Board switched from in-person to online-only hearings. This has had grave consequences for tenants, many of whom do not have access to the necessary technology, resources or privacy to participate meaningfully – or sometimes participate at all – in remote hearings. In this episode, Nav Persaud (MAP scientist and Canada Research Chair in Health Justice) speaks with Douglas Kwan (Director of Advocacy and Legal Services at Advocacy Centre for Tenants Ontario) about the impact that this change has had on tenants' lives and abilities to access eviction prevention services. Expansion of access to eviction prevention interventions, including access to legal services, is a recommendation in MAP's Equity Roadmap Report.
MAPmaking brings you Canada’s leading voices on the health equity issues that affect us all. Together, we will discuss and explore the scientific evidence and real-world solutions that we believe have the potential to transform our country. Our vision is a Canada where everyone has the opportunity to thrive. MAPmaking is brought to you by the scientists, community, and research partners of MAP Centre for Urban Health Solutions, a research centre at St. Michael’s Hospital, Unity Health Toronto.
Stephen Hwang, MAP 0:04
Welcome to MAPmaking, a podcast series that brings you Canada's leading voices on the health equity issues that affect us all. I'm Steven Hwang, director of the MAP research centre at St. Michael's Hospital, Unity Health Toronto. In this first season of MAPmaking, we're exploring the recommendations from our Equity Roadmap Report, a set of 13 recommendations for a more equitable COVID-19 pandemic recovery in Canada.
Douglas Kwan, ACTO 0:41
Ask yourself whether or not this is truly access to justice, whether or not your grandparents - if they were asked to appear at the Landlord and Tenant Board - if they could manage and overcome the hurdles that are presented by the digital wall that that has been created.
Nav Persaud, MAP 0:57
Hi, I'm Nav Persaud. I'm a family doctor, scientist at MAP, Canada Research Chair in Health Justice and co-author of the Equity Roadmap Report. Today I'm speaking with Douglas Kwan, the Director of Advocacy and Legal Services at Advocacy Centre for Tenants Ontario, a specialty legal community clinic, funded by Legal Aid Ontario to serve low income tenants. In this episode, we'll explore one of our recommendations from the Equity Roadmap Report related to expanding access to eviction prevention interventions. Hello, Douglas, and welcome to MAPmaking
Douglas Kwan, ACTO 1:28
Hi, Nav. Thank you. Pleasure to be here.
Nav Persaud, MAP 1:31
Great. Can you tell us a little bit about why tenants need legal representation?
Douglas Kwan, ACTO 1:36
Absolutely. Tenants need legal advice because the Residential Tenancies Act is quite complicated. That's the legislation that covers most tenancies in Ontario. And when it comes to preserving one's home, we find that it's important that people know what their rights are and what their responsibilities are. And so legal advice and representation plays a large part of that.
Nav Persaud, MAP 2:01
Can you tell us what happens at Landlord and Tenant Board hearings?
Douglas Kwan, ACTO 2:06
The Landlord and Tenant Board is the tribunal that hears disputes between landlords and tenants. For the most part, landlords and tenants get along, there's usually very few disputes that occurr during the course of a tenancy. But that's not always the case. And that's why there's a tribunal there to hear the disputes. And prior to the pandemic, what would happen would be tenants would have a notice of hearing that indicates that their matter is going to be heard at the Landlord and Tenant Board. And they would be informed that they would have an opportunity to assert their rights and speak to what's been happening. And they would go to one of 44 Landlord and Tenant Board sites across Ontario. They would walk in and they would find helpful Landlord and Tenant Board staff that would guide them through the process, where where they should be sitting, what the process would be involved. They would also offer access to tenant duty counsel, which is free legal advice for tenants who wanted to discuss their issues with a lawyer confidentially. They would also be able to submit evidence in person, pictures, you can just imagine, you know, for example, a basement apartment that might have mold issues, or other maintenance concerns, there could be lots of pictures involved, as well as landlords would also have an opportunity to provide their evidence in person and this would all be conducted in front of an adjudicator. There would also be mediators who would be talking to parties before their matter's heard to ask them if they wanted to discuss a resolution. Really, you know, it was a quite efficient process. I used to work in Mississauga and would serve Mississauga residents and there were days where you would see 140 applications heard in a day, but they would all be well run and efficiently resolved because there was a great working relationship between tenant duty counsel, Landlord and Tenant Board staff, adjudicators and mediators.
Nav Persaud, MAP 4:03
And how did things change during the pandemic?
Douglas Kwan, ACTO 4:06
Well, like many things, having in person hearings were a challenge. Those in person hearings changed to digital hearings. And with that, there were challenges with respect to logging in to your Zoom hearings, they would have to type some ubiquitous series of numbers and digits to log into their hearing. Once they're logged in, they would often find that individuals wouldn't be easily identified, for example, tenant duty counsel or landlord or the adjudicators wouldn't easily identify themselves so it was very difficult in terms of navigating the process at the start. And also participating during the course of the hearing was quite challenging because oftentimes, these hearings would be three hours, four hours where you need to wait so you would have to have enough time on your on your cell phone plan, or data on your cell phone plan, to fully participate. And as a result, we would find that people who have technological challenges, numeracy challenges, literacy challenges, they would have difficulty accessing their hearings and participating. And at hearings, we would often find landlords who would be appearing by video, and many tenants, mostly tenants, participating by phone in their hearing. So as a neutral adjudicator, you wouldn't see that two parties would be sitting at an equal level. It's sort of putting the tenant in another room and hearing the matter when the landlord is before you. So when you're trying to persuade your position to a neutral adjudicator, tenants would find themselves at a disadvantage. You know, the Landlord Tenant Board and Tribunals Ontario that runs this tribunal has made a statement that, early on the pandemic, that virtual hearings would be their standard practice, even after the pandemic ends.
Nav Persaud, MAP 5:55
Can you talk about the stakes for tenants and the stakes for landlords at these hearings?
Douglas Kwan, ACTO 6:00
So 90% of the hearings that take place at the board are eviction related. When tenants are before the board, the question is whether or not you'll have a home the next day, a community that you can call home, a local school where you know, that your children will go to. And what we've seen during the pandemic is a rise in rent arrears. Cases, because people have lost their jobs, they've had their hours reduced, and so they would no longer be able to make the rent that they could formerly afford. Many people have found themselves having rent arrears accrue, even though let's just say they've been able to return back to work, they still have a significant amount of debt to pay to their landlord. Residential tenants and landlords have been treated differently than commercial tenants and landlords by the provincial and federal government that had offered grants and loans to support them during the pandemic. There hasn't been a similar program for residential tenants and landlords. What we've seen in other jurisdictions like British Columbia in the United States that did offer supports for tenants and landlords is that there were fewer evictions. And that's a good thing for society. Because when people are homeless, then that's further cost to the shelter system, further costs to municipal homelessness prevention programs, and also the significant disruptions on the individuals themselves. What we're seeing is a lot of sustainable tendencies that would have been sustained in the in person hearing process are finding themselves or households find themselves without a home at a much faster rate. And that's quite concerning.
Nav Persaud, MAP 7:43
Sounds like it would be incredibly stressful to be involved in such a high stakes hearing. And then in addition to have to fiddle with technology, and sometimes be at a disadvantage calling in while another party is participating by videoconference. Thanks again, for accommodating this rescheduling. Actually, the first recording session had to be rescheduled, because I couldn't get in due to some sort of firewall issue at the hospital. And I can't imagine what it would be like if you had trouble logging into a meeting where whether or not your house the next day was about to be decided.
Douglas Kwan, ACTO 8:19
We've seen people really struggling with the technology. It's a situation where people are highly emotional because it has significant ramifications for their families. And so little things such as not having consistent data or not finding a room where you can speak privately about your personal matters. If things go wrong or unexpected technological barriers happen. It can be extremely frustrating. So what we've seen is situations where people are their calls are dropped, their internet connection drops and trying to get in had been difficult because it requires someone at the LTB at the Landlord Tenant Board staff to admit people in the room and that doesn't always happen. At least they're not checking always consistently. So tenants sometimes find themselves missing their entire hearing and not being able to get back in time. Tenants have had very challenging experiences on the phone in terms of managing, how do I mute myself and those concepts that really they didn't have to be concerned about when the hearings were in person. And we've seen adjudicators become extremely upset because people cannot mute themselves. And we've seen situations where where this happened to a senior who was yelled at by the adjudicator, because they were unable to mute themselves. And so not only did that individual have technological issues managing the the hearing, they were also hard of hearing it was extremely frustrating for those observing what was going on. Other issues have been just finding a place where tenants can have Wi Fi free Wi Fi. I know a story where one person called in through a payphone to try to participate in their hearing. And that was very challenging because their calls have been were dropped during the course of their hearing.
Nav Persaud, MAP 10:11
What you're describing, I think would sound unreasonable to a lot of people, that there's no option to participate in a hearing in person when a tenant may lose their housing. Why do you think these hearings have not been offered in person and the sorts of supports that you've just discussed have not been offered so far?
Douglas Kwan, ACTO 10:33
Well, I want to be clear that that they have said that they want to offer in person hearings for those who need accommodation, there is a form that's called a request for accommodation that says, if you feel that a video hearing would result in undue prejudice, then we will consider changing a format. Actually doesn't even say we'll consider changing the format. It says if you feel that there's be undue prejudice at a video hearing, speak to it. So one of the key challenges is that there is no form that says, if you'd like an in person hearing, just check off this box. Other tribunals have offered a much more simpler plain language way for participants to say 'I want an in person hearing,' and other tribunals have had in person hearings throughout the pandemic. So that's one of the largest hurdles, the fact that there is no such form. As I understand the Landlord and Tenant Board has not offered any in person hearings over the last 18 months, and they're a board that hears about 80,000, or receives 80,000 applications for hearings every year. And it's quite troubling to hear that they haven't granted any in person hearings. So that says to me that the bar is probably too high. One other example I'd like to share is one of the community legal clinics, over in southwestern Ontario, they were working with their municipality social worker, supporting a tenant with mental health challenges, and they specifically asked for an accommodation for an in person hearing. And the response was that, well, why don't you travel to the nearest regional centre, and we'll set you up in front of a computer to participate. That regional centre is approximately an hour and a half one way drive away from that community. The other alternative was, we'll send you a phone, a flip phone to participate. Keep in mind, you know, this person has mental health challenges, that it was expressed in the accommodation form, it was clear that they need a social worker to sit with them to help them participate. And those were the two options that were offered. And so, you know, this is just one example which, you know, it's just plain for most observers that this person clearly can't be accommodated through, simply providing a phone or computer, they need an in person hearing to really assert their rights and tell their story.
Nav Persaud, MAP 12:54
Goodness, thank you for that example. You spoke about how supports can be important to tenants. One of the clinical trials that we cited in the Equity Roadmap Report showed that when tenants have legal representation, landlords can actually benefit and legal costs and administrative burden were actually reduced for landlords when tenants had legal representation. Can you tell me why that might be the case?
Douglas Kwan, ACTO 13:23
We see this all the time at tenant duty counsel at the Landlord and Tenant Board. When the tenants are appearing at the board, like you said, it's an emotional and highly charged situation. And sometimes all they need is someone to provide them with a plain understanding of the law, and someone who's clearly not on the side of the landlord to just give them a fresh perspective as to what their legal rights and responsibilities are. And sometimes that oftentimes, that advice will cause the tenant to be more amicable to options to resolve the matter, they'll have a better understanding of the process. So it would lessen the time it takes to have the matter resolved at the hearing stage. And we often find more positive outcomes when tenants have a better understanding of laws which makes the experiences for landlords and landlords' representatives much, much better and reduces the number of hours that they would need to spend involved in that process.
Nav Persaud, MAP 14:21
I want to shift now toward the pandemic recovery period, when the immediate threats of the virus abate. What needs to change going forward to ensure that tenants have appropriate support and representation?
Douglas Kwan, ACTO 14:37
Well, the Landlord and Tenant Board existed as an in person independent tribunal for the last 20 plus years. You know, the saying goes if it ain't broke, don't fix it. And we have found that digital doesn't always mean better, especially when you consider the challenges that the users and the participants face. And also given that the stakes are so high, that in person hearings are really the better way to go. More hearings are processed, more tenancies are sustained, because they have access, immediate access to tenant duty counsel, they have access to counter staff to help guide them. There's a number of navigators, in-person navigators, at those sites that were able to help people through that process. Because even though tenant duty counsel's present community legal clinics are there, the landlord's self help centre there for smaller, small landlords, by and large parties that appeared before the Landlord and Tenant Board often appear unrepresented or never have had an opportunity to speak to legal advice. So those navigators play a key component in understanding the process and going through the process for the participants. So post pandemic, I would say that in person hearings really should be returned. Because it's fairer for the parties. It's a more efficient process, more hearings are resolved through that process than what we've been seeing right now. And, you know, I invite any of the any people listening to watch an online hearing, and you can see for yourself, the confusion, the inefficiencies that are occurring during the course of the hearing. Much of that really doesn't take place in the in person forum, because people, you know, they see each other, visual cues are there, they're able to feel that they've had a shot, that they participated in the process. And people just aren't feeling that way after their hearing.
Nav Persaud, MAP 16:34
You mentioned that a lot of tenants appear unrepresented. What needs to change so that everyone who wants representation and who would benefit from it has it?
Douglas Kwan, ACTO 16:46
Well, two years ago, the Province of Ontario cut Legal Aid's budget by 30%. It was $133 million. And that played a part in terms of limiting access to justice for people. So a return to the pre-2019 budget would be extremely important to ensure that more people have access. Prior to that cut, the province was increasing Legal Aid's budget so that more and more Ontarians would benefit, would be eligible. So the goal was to meet the low income measure of Ontarians, so that they are eligible for those services. And beyond that, expansion of community legal clinics. Because for tenant duty counsel, for legal clinics, we don't just focus on financial eligibility when someone calls us, we want to give advice to anyone who calls us because we would find it's more beneficial to spend the five to 10 minutes to give you the advice that you need, as opposed to spending that time to just determine, 'Do you own a house? What's your annual income?' Because we're all part of that administration of justice system. And it's so important to ensure that we have a robust Legal Aid program so that people know their rights. Legal Aid is not just representation and advice. There's a lot of publicly available materials, we have a clinic whose only mandate is to provide public legal education on a website, on an app. They're called CLEO, and they perform a tremendous service for Ontarians, who really want to just, you know, maybe they want to just discover for themselves what the process is like. They're a fantastic clinic that's funded by Legal Aid Ontario. So it's important to expand Legal Aid Ontario's budget to ensure more people have access to legal services.
Nav Persaud, MAP 18:39
What can people listening to this do to help?
Douglas Kwan, ACTO 18:44
There are a few things you can do. The changes at the Landlord and Tenant Board, although I said earlier, they intend to make it stable, ongoing after the pandemic, that's not set in stone. The Landlord and Tenant Board ultimately has to be responsible for Ontarians. And the way that they do so is through the elected officials, our provincial government, so people should be engaged with their elected officials. There is a provincial election that's coming up in the next few months. Talk about the concerns, talk about the impact of the pandemic, on on yourself or your neighbors. I invite you to listen to a Landlord and Tenant Board hearing and determine for yourself if this is the way to go. You know, if people being evicted without seeing the the adjudicator during the process is a fair way to be evicted. Ask yourself whether or not this is truly access to justice, whether or not your grandparents - if they were asked to appear at the Landlord and Tenant Board - if they could manage and overcome the hurdles that are presented by the digital wall that that has been created. So I think the key is communicating with your community. Talk to your friends and relatives about the challenges and most importantly, you know, engage in the political process. Talk to your elected official and make them aware that this is important to you.
Nav Persaud, MAP 20:06
Great. Excellent. Before we move to the final three questions, was there anything else you wanted to add?
Douglas Kwan, ACTO 20:12
Yeah, I also want to just expand a little bit about access to justice, and that access to justice is shouldn't be looked at on its own. And that access to justice plays an important part in our affordable housing and the crisis that we're seeing right now. Every level of government is interested, is passionate, wants to solve the affordable housing crisis that we're seeing. And the way the residential tenancies laws in Ontario work is that for every unit that's vacant in the province, a landlord can charge whatever the market will bear, whatever they want to charge for it. And so at the Landlord and Tenant Board, yeah, as I said before, 90% of their applications involve evictions. So if a tenant long term tenant's evicted, and that unit is made vacant, then we're losing another affordable housing unit. So if I give you an example of a basement apartment that where a tenant was paying $1,200, and they're evicted, now it's going for $2,000. Well the neighbors in the community who have a similar basement apartment, well, they're going to be charging a higher rent. And so the Landlord and Tenant Board plays an important part in the affordable housing crisis. Because if sustainable tenancies aren't maintained, then we're seeing the gradual erosion of affordable units. And so that, you know, that is quite a concern.
Nav Persaud, MAP 21:34
Excellent. Thank you so much for emphasizing the importance of access to justice outside of these hearings. So if it's okay with you, we'll move on to the three final questions. So on your very best days at work, days when you come home feeling grateful that you get to do what you do, what do those days look like?
Douglas Kwan, ACTO 21:53
Those days, you know, I'm thankful for having an occupation where I truly enjoy working every day. I mean, I've been working as a community legal clinic lawyer for over a decade. And, you know, it's a job that I love. And the reason why I love it is because of the impact that we have on behalf of individuals and society. And a good day for us, and for me is, is just knowing that you've made a difference, whether it's a change of conversation on a policy level, you know, where staff or elected officials had a certain viewpoint and maybe you've informed them of a different aspect, and that viewpoint is changed. Or whether you're directly able to affect someone's life by preserving their tenancy or ensuring that their relative is sponsored and can come to Canada. You know, those are great days, you know, and I cherish those days. And that's what, for me is a good day.
Nav Persaud, MAP 22:57
On your very worst days at work, what gives you hope and motivates you to continue?
Douglas Kwan, ACTO 23:03
I struggled with this question when it was offered, I just, I think what gets me going, even on a bad day, to keep going is really the hope that I can make a difference tomorrow. And I've seen through my career, that even on a bad day, tomorrow brings a new day. A new person might come in, then you can make a difference. There's always an opportunity to to do good. And so I think really that that drives me, that helps me on those on those really bad days. It helps me keep going for sure.
Nav Persaud, MAP 23:44
Finally, finish this sentence: 'Thriving is'
Douglas Kwan, ACTO 23:46
Thriving is ensuring people don't have to constantly struggle simply to stay adequately housed. Imagine what we could accomplish if this fundamental need was actually met for everyone.
Nav Persaud, MAP 24:02
Perfect. Douglas, thank you very much for exploring these issues around eviction prevention. The examples you provided were very powerful, and you connected them clearly to some big issues that need to be addressed.
Douglas Kwan, ACTO 24:14
Thanks. Thank you for the opportunity to participate in your podcast. I've really had an enjoyable time.
Nav Persaud, MAP 24:20
Douglas Kwan is the Director of Advocacy and Legal Services at Advocacy Centre for Tenants Ontario.
Stephen Hwang, MAP 24:28
You've been listening to MAPmaking. MAP is a St. Michael's Hospital research centre dedicated to creating a healthier future for all. We partner with communities and researchers across Canada to understand inequities from the inside out and from the ground up. Based on what we learn, we develop programs and solutions to address inequities, and help make sure everyone has the opportunity to thrive. We work with government leaders to help improve policies and bring our programs to more people across Canada. Learn more at maphealth.ca. I want to acknowledge the sacred land on which MAP and St. Michael's Hospital operate. This land is the territory of the Huron-Wendat and Petun First Nations, the Seneca and most recently, the Mississauga of the Credit First Nation. We are grateful to have the opportunity to work in the community on this territory. We are also mindful of broken covenants, and the need to strive to make right with all our relations. This podcast is produced by Emily Holton with associate producer Samira Prasad. Technical production is provided by David Grein of the Acme Podcasting Company. I want to acknowledge and thank the St. Michael's Foundation and our incredible donors as well as Staples Canada for their support and commitment to MAP's work. We partnered with the team at Staples to create Even the Odds, an initiative to raise awareness of inequity in Canada and to help build vibrant healthy communities. You can learn more at staples.ca/eventheodds. I'm Stephen Hwang. Thank you for listening. Take good care, and we'll see you next time.