Negotiations, Mediation, and Hearings

• Author: John Dickie/David Lyman
• Pages: 157-176

157

12

Negotiations,

Mediation, and

Hearings

Learning Outcomes

After reading this chapter, you will be able to:

• Explain what can be negotiated and how to

negotiate

• Identify when a negotiation is likely to be successful

or unsuccessful

• List the options for implementing a negotiated

settlement

• Explain mediation

• Explain how to force a witness to attend a hearing

and how to manage witnesses correctly

• Explain how hearings are conducted

• Explain how to put in the applicant’s case

• Describe how to cross-examine a witness and to

object to questions

• Describe the submissions phase of a hearing

Negotiations ........................... 158

Implementing a Negotiated Settlement ... 161

Mediation ............................. 162

Who Is to Take Certain Actions ........... 163

Disclosing Information .................. 163

Forcing Witnesses to Attend a Hearing:

The Summons ...................... 165

The Hearing ........................... 166

Human Rights Accommodation ......... 168

Exclusion of the Public ................ 168

Informal Hearings .................... 168

Disputed Claims and Formal Hearings ..... 169

Key Terms ............................. 176

Review Questions ...................... 176

© [2022] Emond Montgomery Publications. All Rights Reserved.

158 WORKING WITH THE RESIDENTIAL TENANCIES ACT

The greatest number of applications under the Residential Tenancies Act, 20061 are for

termination and eviction because of non-payment of rent. If a tenant can pay the

current rent and can pay off the arrears over time, negotiation or mediation can be a

useful way of resolving a landlord’s claim. Applications for termination on other

grounds and applications for remedies other than termination can also be successfully

settled to the benefit of both parties.

Negotiations

Parties can sometimes resolve disputes and applications through negotiations that lead

to settlement. As a party’s representative, you should be alert to the possibility of

settlement. Settlements allow each party to retain control and gain some certainty over

the outcome. The range of matters that can be settled include:

• the amount of rent in arrears,

• the payment schedule for arrears,

• the amount of rent abatement for maintenance problems, and

• the amount of a rent reduction for reduced or discontinued services and

facilities.

Cases about issues other than rent arrears can also sometimes be settled. For example,

if a repair dragged out but has now been completed, a tenant might want compensation

for the period of time when the unit was not in a good state of repair, and the amount

of such compensation could potentially be settled by negotiation. Or a tenant might

want repairs or renovations to a kitchen or bathroom, alleging that they are not in a

good state of repair. A landlord might agree to do renovations but want to be sure that

the tenant’s claim for a rent abatement will be withdrawn or be settled at a fixed

amount. Or a tenant might be willing to pay a small amount of additional rent in

exchange for having renovations rather than the minimum repair required.

The key to successful negotiation is to know the strengths and weaknesses of your

client’s case and the range of possible and likely outcomes from a hearing. Pay attention

to what is being discussed in other people’s hearings when you are waiting for your

1 SO 2006, c 17 [RTA].

Changes in Board Practice Because of COVID-19

Because of COVID-19, at the time of writing, the Landlord and Tenant Board is not

holding in-person hearings. Instead, the Board is holding hearings online using

Zoom. A number of cases are scheduled for the same time as part of a “hearing

block.” As part of an attempt to increase the efficiency of the adjudicators, the

hearing block begins with meetings with a hearing officer rather than the adjudi-

cator. The hearing officer attempts to help the parties reach a settlement. This is in

keeping with the Board’s wish to encourage more settlements.

For the latest word on which hearing process the Board is following, see the

updates to this textbook on Emond’s website: <https://www.emond.ca/wrta5>. The

timing of the end of the impact of COVID-19 is unclear, as is the degree to which

the use of remote technology will continue after COVID-19 is over.

© [2022] Emond Montgomery Publications. All Rights Reserved.