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Proof of your case at the Ontario Landlord and Tenant Board

THE Burden OF PROOF AT THE LANDLORD AND TENANT BOARD

Most people are familiar with the concept of the “burden of proof” largely because you hear it referred to in movies and on television.  The phrase “beyond a reasonable doubt” sounds familiar to most people and most people when they hear “beyond a reasonable doubt” will think about the concept of being “innocent until proven guilty”.  These two phrases are grounded in criminal law and are the foundation of a presumption of innocence.   For cases involving criminal acts or even quasi-criminal acts, the law presumes that it is better to let some guilty people go free than it is to convict some innocent people of crimes that they did not commit.  Hence, the burden of proof can be difficult to meet.
The burden of proof or the “standard of proof” that people may not be so familiar with is the civil standard of proof.  The civil standard is the standard that applies in Landlord and Tenant Board matters.  This standard requires the applicant (either the landlord or tenant depending on who filed the application), to prove the allegations on a “balance of probabilities”.  You can understand the “balance of probabilities” as meaning “more likely than not” or “50% plus 1".  Relatively recent appellate caselaw has determined that there are only two standard’s of proof and that there is no sliding scale in the civil standard.  To meet the civil standard of proof the evidence in support of that burden needs to be “clear, cogent, and convincing”.
To be clear, the standard of proof at the Landlord and Tenant Board is the civil standard.  This should be noted even though the Landlord and Tenant Board will hear allegations against tenants that constitute an illegal and even criminal act.  Where a landlord is seeking to terminate a tenancy and evict a tenant because of an illegal act there is no need for a criminal charge or conviction of the tenant.  The landlord can win the application by proving that the illegal act or criminal activity occurred on the civil standard (more likely than not) as opposed to “beyond a reasonable doubt”.   The effect of the different standard is that it is possible to win at the LTB but possible for the Crown to lose in criminal court simply because the burden of proof in the criminal matter is higher.
Shifting burdens.  A shifting burden of proof is when one of the parties is required to offer a certain minimum level of evidence/proof (and once that’s done) the burden shifts to the other side to disprove the minimum level of evidence/proof that caused the shift in burden.   The prime example of this at the LTB is in non-payment of rent applications.
In an application for termination for non-payment of rent and eviction, the landlord has the first obligation to “prove” that the tenant did not pay the rent.  That burden is very easily met because all that the landlord has to do is say “the tenant did not pay the rent”.  That is enough to establish that the tenant did not pay the rent.  The landlord is not required to show anything more to establish with clear, cogent, and convincing evidence that the tenant did not pay the rent.
Once the landlord says “the rent remains unpaid” the burden shifts to the tenant to prove that the rent was paid.  Hence, the burden shifts to the tenant to prove that the rent the landlord claims is unpaid was in fact paid.   Normally this is not such a big deal.  A cancelled cheque, an e-transfer, money order, a signed receipt, an admission from a rental officer, are all effective ways to prove that rent was indeed paid.
What is unfortunate, for tenants, is when rent is paid in “cash” and the tenant is not given a receipt.  How then does a tenant discharge the burden of proof when cash has been paid and they have no receipt?  Sometimes, the landlords refusal to acknowledge receipt of cash is just pure evil.  Other times, it is just an honest mistake.  And other times, it is the system that breaks down and the tenant is just stuck.  For instance, what if the standard way of paying is in cash with the cash dropped in a drop box outside the landlord’s office.  What happens if one night a clever thief figures out how to fish a cash loaded envelope out of the drop box leaving no trace of what they’ve done.  The tenant knows they paid but the landlord has no envelope and nothing seems to be wrong with the drop box.   Who will win that application at the LTB for terminating for non-payment of rent?  Based on the “shifting burden of proof”, in this case the advantage lies with the landlord.  
WHEN TO ARGUE THE BURDEN OF PROOF
The burden of proof is not to be ignored.  At the conclusion of the evidence the adjudicator is likely to ask the parties to make submissions.  The applicant (person who brought the application) goes first.   The applicant, having the burden of proof should be comparing the important evidence that the adjudicator heard and suggesting through argument what evidence the adjudicator should accept and why.  The applicant should suggest that the burden of proof has been discharged and that the case is proven.
The respondent on the other hand, will want to say that the burden of proof has not been met.  For example.  Where two people testify and each say the exact opposite of what the other person says (and presuming this is crucial evidence), the adjudicator will have to decide who to believe.  The respondent will likely suggest that the favourable evidence should be accepted and perhaps even argue that the evidence is contradictory and can not be resolved in favour of one side or the other.  If there is an unresolvable conflict in the evidence then the adjudicator would turn to the burden of proof and say “sorry applicant, you did not prove 50% plus 1 and therefore, because of the burden, you lose”.    Accordingly, it is possible for an adjudicator to say that she believes both sides equally and that because the applicant can’t tip the evidence in their favour it is a “tie”.  When there is a tie, the respondent wins.
Michael K. E. Thiele
www.ottawalawyers.com


This post first appeared on Ontario Landlord And Tenant Law, please read the originial post: here

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