COVID-19, Legal, News

Getting a Fair Tribunal Hearing During COVID-19

Re-posted from ON THE RADAR, a publication of Community Legal Education Ontario (CLEO)

At the beginning of COVID-19, tribunals across Ontario were forced to close. Many have now re-opened using remote or virtual hearings by video or telephone. This includes the Landlord and Tenant Board, the Ontario Labour Relations Board, the Immigration and Refugee Protection Board, and the Social Benefits Tribunal.

This month’s On the Radar looks at what a fair hearing means and what people can do to protect their rights.

Remote Hearings During COVID-19

Most tribunal hearings in Ontario are now done by phone or video. These hearings can be unfair to people who don’t have access to the internet and the technology they need.

The Right to a fair Hearing

Tribunals must hold fair hearings.

If someone thinks that they’re not getting a fair hearing, they should ask the tribunal to stop the hearing until the problem can be fixed.

If the hearing continues anyway, they can ask the tribunal or a court to “review” the decision. If the hearing was unfair, the tribunal might have to hold a new hearing.

There are many ways that a hearing can be unfair. Here are some of the most common problems.

Getting Notice of the Hearing

The right to notice means that people must be told in advance about their hearing. This gives them time to prepare and gather evidence. Normally, people get their notice of a hearing by mail.

Many tribunals are now scheduling as many hearings as possible to catch up with their backlog. This rush means that many people are not even being told that they have a hearing. Others are being told about their hearing after it’s too late to send in their evidence. This goes against their right to get notice of a hearing.

The Right to be Heard

The right to be heard means that people must be allowed to tell the tribunal’s decision-maker what they think happened. This is also referred to as “making their case”. They also need to review and respond to any evidence used at their hearing.

Many people have found it hard to take part fully in their video hearings for reasons like:

  • not having a computer or stable internet connection
  • not being able to understand the interpreter if there is one
  • having problems using or downloading video-conference software
  • not being able to join the hearing because the tribunal is having technical problems

Technical problems like these can interfere with a person’s right to be heard.

Not Showing Bias

A decision-maker cannot be biased or appear to be biased. If the decision-maker favours one side, it’s important that the other person tell the decision-maker during the hearing that they believe this is happening.

Sometimes a court will refuse to consider a claim of bias if it was not raised at the hearing in front of the original decision-maker.

Dealing with Unfair Hearings

If someone’s hearing was not fair, they have several options.

First, they should tell the decision-maker about it. It’s best to do this before the hearing if possible. This could happen, for example, if the person received notice of their hearing but didn’t have enough time to send in their evidence. And it’s important to tell the decision-maker in writing and save a copy of the letter or email.

If the person cannot complain before the hearing, for example, if the problem happens after the hearing has started, they must complain during the hearing. This might happen if the person cannot hear the decision-maker or the decision-maker cannot hear the person.

They should ask the decision-maker to stop the hearing until the fairness problem can be fixed. This puts their concerns “on the record”. It forces the decision-maker to either fix the problem or officially ignore the person’s concerns by continuing with the hearing. The person can then use the fact that they told the decision-maker as evidence in a review of the decision.

If the decision-maker does not fix the problem, the person who was treated unfairly can ask for a “review” or “reconsideration” of the decision. This means that the tribunal will look at the decision and decide if it was done fairly. If it was not fair, the tribunal may order another hearing.

Asking for a decision to be reviewed does not always stop the order from being enforced.

For example, a tenant might ask the Landlord and Tenant Board (LTB) to review an eviction order. It’s possible that the eviction could happen before the LTB even decides whether to review the decision. Sometimes the tenant can solve this by going to court for an emergency order.

Getting Help

The process for asking for a review is different for each tribunal. In some cases, people may have to go to the Divisional Court for review instead of the tribunal. A lawyer can help people know where they should go.

Asking for a review can be a complicated process and it must be done quickly. People who want to apply for a review need to get help from:

News

Notice of Annual General Meeting

The Board & Staff of Kingston Community Legal Clinic invite you to our Annual General Meeting. This year’s AGM will be held virtually through Zoom and by phone on Thursday, November 10, 2020 at 2:00 p.m. For instructions on how to connect and to receive a copy of our annual report prior to the meeting, please contact Rachel Evans at evansr@lao.on.ca or 613-541-0777 x.28 to REGISTER by Wednesday, December 9, 2020.

We hope to see you there!

housing

Rent Repayment Agreements can Pose Risks to Tenants

Re-posted from ON THE RADAR, a publication of Community Legal Education Ontario (CLEO)

The COVID-19 pandemic has caused many tenants to fall behind in their rent. For some, the best choice might be to work out an agreement with their landlord so they have time to pay back what they owe.

This month’s On the Radar describes some key things about repayment agreements. Before signing one, it’s important for a tenant to know where they are in the eviction process.

Before the landlord applies to the Landlord and Tenant Board

To start the eviction process, the landlord must first give the tenant an N4: Notice to End your Tenancy Early for Non-payment of Rent. This notice gives details about what the tenant owes and when they must pay.

When a tenant first falls behind with the rent, the landlord might ask them to agree to a payment schedule. This could be before or after the landlord gives them an N4 notice.

Usually, a landlord will not let a tenant off without paying back all the rent they owe. They’ll just offer the tenant more time to pay it.

In return for the extra time, the landlord agrees that if the tenant makes the payments in full and on time, they won’t take the next step. This next step is filing an eviction application with the Landlord and Tenant Board (LTB).

If tenants have money problems because of the COVID-19 emergency, it might help to talk to their landlord about this. But a tenant does not have to sign a repayment agreement if:

  • they don’t think it’s reasonable, or
  • they’re not sure they can make all the payments.

Tenants can’t be evicted just for refusing to sign an agreement that their landlord wants them to sign.

If the tenant does not sign an agreement and the landlord decides to apply to the LTB for an eviction order, the tenant will still have a chance to avoid eviction by:

  • paying the rent plus the landlord’s LTB filing fee,
  • working out a repayment agreement, or
  • asking the LTB to give them more time to pay.

Signing other documents

Some landlords might also ask the tenant to sign another document agreeing to move out. The landlord will say that they won’t enforce it, as long as the tenant keeps up with their payments.

This document might be an N9: Tenant’s Notice to End the Tenancy or an N11: Agreement to End the Tenancy.

Tenants should never sign anything like this, unless they want to move out.

After the landlord applies to the LTB to evict the tenant

Later, the landlord might apply to the LTB. The tenant should receive:

The landlord, the tenant, or an LTB mediator might suggest a repayment agreement after the landlord files the L1 application.

Signing an agreement at this stage can have serious risks that tenants need to know about.

Risks for tenants

These agreements can include a part that says if the tenant misses a payment, their landlord can get an eviction order from the LTB without giving them a notice or a hearing.

Landlords usually want to include this. But tenants don’t have to agree.

If this part is not in the agreement, the LTB can still make an eviction order if a tenant misses a payment. But they can do this only after both the tenant and landlord have a chance to tell their side at a hearing.

If the landlord insists on including this part, the tenant should not sign unless they’re certain they can make all of the payments. If they’re even one day late or one dollar short, the landlord can get an eviction order from the LTB without a hearing.

The LTB has a form for repayment agreements but landlords and tenants do not have to use it.

If a tenant is thinking about signing a repayment agreement with their landlord, they can use this form instead. CLEO and the Advocacy Centre for Tenants Ontario (ACTO) developed this alternative form, with help from a number of community legal clinics. It’s meant to make it easier for tenants to understand what they’re agreeing to.

The right to a hearing

If the tenant does not sign a repayment agreement at all, they still have the right to have a hearing with the LTB.

At the hearing, they can tell the LTB their side and ask for time to pay off the rent. If their money problems were caused by the COVID-19 pandemic, the tenant can ask the LTB to take that into account.

Even if the LTB makes an eviction order after holding a hearing, the tenant gets one more chance to stop the eviction by paying:

  • all the rent they owe, and
  • the filing fees the landlord paid to the LTB.

Getting legal help

It’s important for tenants to get advice from a lawyer or their local community legal clinic, before they sign any repayment agreement.

COVID-19, housing

COVID-19 TENANT TIP SHEET

Scarborough Community Legal Services has created an information sheet to answer questions about residential tenancies amidst the ongoing COVID-19 pandemic. To access the tip sheet, click this link:

What Tenant Need to Know During the COVID-19 Pandemic

If you are experiencing issues with your tenancy and need legal adivce, please contact Kingston Community Legal Clinic at 613-541-0777 ext.0 or fill out our Online Intake Form.

 

News, Social Assistance

Accessing Income Support in the wake of COVID-19

Re-posted from Income Security Advocacy Centre (ISAC)

This document lists several income support programs that may be available to Ontario residents during the COVID-19 pandemic. This information is changing rapidly and we recommend that you check with the relevant government’s website for updated information.

Table of Contents

Introduction
1. Employment Insurance (EI)
2. NEW: Emergency Care Benefit
3. NEW: Emergency Support Benefit
4. Ontario Works (OW) and Ontario Disability Support Program (ODSP)
5. Emergency Assistance
6. Canada Child Benefit and Ontario Child Benefit
7. Forthcoming: Other Income Support Programs

Introduction
COVID-19 is a respiratory disease pandemic caused by a novel coronavirus. It has caused illnesses and deaths across the world, including in Canada, prompting extraordinary social distancing measures in an effort to contain the virus. The resulting economic disruption and uncertainty has undermined the income security of many in the province of Ontario.

This document lists federal and provincial income security programs that could assist Ontarians in these rapidly changing times. Some of these programs existed before the spread of COVID-19, while others have been modified or introduced as a response to the economic downturn. Nevertheless, many low-income individuals, including individuals with pre-existing disabilities and migrant workers, may still fall through the cracks because of deficiencies in current program design.

This document lays out a description of each income security program and makes, several suggestions for improving each. The pandemic highlights an urgent need for paid sick days, a more inclusive employment insurance program, and a more robust social assistance system. We must ensure that nobody in Ontario is left behind.

  1. Employment Insurance (EI)
    • What is it?
    The Employment Insurance program provides temporary income support to individuals who lose their wages. This may occur if they lose their job, are temporarily laid off, or if they need to take time off work because they are sick or need to care for a family member who is critically ill. Two specific benefits provided under Employment Insurance are described below:

– Employment Insurance Sickness Benefits:
Workers who are sick or quarantined due to COVID-19 can apply for Employment Insurance sickness benefits. In order to qualify, the worker must have worked 600 hours within the 52 weeks before they apply.
Workers who qualify will receive the benefits for up to 15 weeks. Earlier this year, the federal government announced plans to increase the benefits period to 26 weeks, but this change has not yet been implemented.

– What has changed with Employment Insurance Sickness Benefits?
In response to the pandemic, three important changes to Employment Insurance sickness benefits were announced to simplify access:

  1. Workers will not need a doctor’s note to apply for EI sickness benefits.
    2. Normally, there is a waiting period of 1 week before a worker can start to receive EI sickness benefits. This waiting period has been removed. This means workers can now get EI sickness benefits for the week immediately after they stop working as well.
    3. Workers who are under quarantine and are unable to make a prompt claim for EI sickness benefits can have their EI claim backdated to cover the period of delay.

A special hotline is available for applicants for EI sickness benefits related to COVID-19:
Telephone: 1-833-381-2725 (toll-free)
Teletypewriter (TTY): 1-800-529-3742

– Employment Insurance Regular Benefits:
Workers who have lost their job or been temporarily laid off as a result of COVID-19 can apply for Employment Insurance Regular Benefits. In order to qualify, the worker must have worked a specific number of hours within the 52 weeks before they apply. The number of hours required will depend on where the worker lives and is usually between 420 to 700 hours. Workers can find out how many hours they need at this link.

Workers who qualify will receive the benefits from between 14 to a maximum of 45 weeks. Once a worker applies for EI Regular Benefits, there is a 1-week waiting period before they can begin to receive the benefits. The federal government has not removed this waiting period.

–  What has changed with Employment Insurance Regular Benefits?
As of the date of this posting, Employment and Social Development Canada has not announced any changes being made to Employment Insurance regular benefits.

  • What is missing from Employment Insurance?
    First, EI benefits should be increased. EI provides benefits only equal to 55% of a worker’s earnings, up to a maximum of $573 per week. This amount is too low to help low wage workers survive, particularly in expensive urban areas.
    Second, eligibility for EI should be expanded. Many workers do not qualify for Employment Insurance benefits because they cannot meet the required hours to qualify. This impacts low-wage and precarious workers the most, including those who work part-time or temporary jobs, rely on tips as a part of their wages, or have irregular or unpredictable hours.

ISAC and other organizations have long advocated for improvements to EI, to make it accessible to all workers. These improvements, called for in this petition, include reducing the required hours to qualify to 360 hours and increasing the amount of the benefits.
Workers who do not have sufficient hours to qualify for EI benefits may be able to get the federal government’s new Emergency Care Benefit or Emergency Support Benefit, which you can read about further below. These are temporary measures only.

  1. NEW: Emergency Care Benefit
    • What is it?
    The federal government has introduced the Emergency Care Benefit for workers who do not qualify for Employment Insurance sickness benefits and who cannot get paid sick leave from work.
  • What details have been announced?
    This Benefit will provide workers (including self-employed workers) with up to $900 every two weeks, for up to 15 weeks, if they are:
    – quarantined or sick with COVID-19; or
    – caring for a family member who is sick with COVID-19, such as an elderly parent.

In addition, parents who are caring for children because of school closures and who are unable to earn wages can get the Emergency Care Benefit. The Benefit will be available to these parents whether or not they qualify for Employment Insurance.
Applications for the Emergency Care Benefit will be available in April 2020. Further details are not yet known.

  • What is missing?
    While this is a positive step to support workers impacted by COVID-19 who cannot access EI, it is a temporary measure only. Furthermore, it is not clear whether it will be available to all workers regardless of immigration status. ISAC continues to call for permanent improvements to the EI program that would make it accessible to all workers, and provide a meaningful level of wage replacement.
  1. NEW: Emergency Support Benefit
    • What is it?
    The federal government has introduced the new Emergency Support Benefit for workers who do not qualify for Employment Insurance and who lose their job or whose hours are reduced because of the impact of COVID-19.
  • What details have been announced?
    The Emergency Support Benefit will provide workers with 14 weeks of benefits in amounts similar to EI benefits payments. We are awaiting further details from the federal government.
  • What is missing?
    It is not yet known exactly what amount of benefits will be provided through the Emergency Support Benefit or if it would be sufficient to support low-wage workers. It is also not clear whether workers who are self-employed or who have precarious immigration status will be able to access this benefit. ISAC continues to call for permanent improvements to the EI program that would make it accessible to all workers, and provide a meaningful level of wage replacement.
  1. Ontario Works (OW) and Ontario Disability Support Program (ODSP)
    • What is it?
    Ontario’s social assistance system is made up of two programs: the Ontario Disability Support Program (ODSP), which provides income support specifically to persons with disabilities, and Ontario Works (OW), which supports others who need financial assistance. Currently, a single person receives only $733 per month from OW or $1,169 from ODSP. A full, up-to-date rates sheet can be found here.

To be eligible for both OW and ODSP, Ontario residents must be from households in financial need. Many residents stand to lose all or part of their income as a result of the COVID-19 pandemic and may become financially eligible for social assistance. Note, however, that any income received from sources other than employment is generally deducted dollar-for-dollar from OW and ODSP benefits (notable exceptions are the Canada Child Benefit and the Ontario Child Benefit, discussed below). As a result, residents who qualify for other, more generous income support programs such as Employment Insurance may not qualify for either social assistance program.

In addition to proving financial need, ODSP applicants must also show that they have a substantial physical or mental impairment that is expected to last at least one year leading to a substantial restriction in activities of daily living. Long-term effects of COVID-19 are currently unknown, but many otherwise healthy individuals exhibit mild symptoms for a shorter period of time and are therefore unlikely to qualify for ODSP. Others who are more seriously affected by COVID-19 might qualify for ODSP on a case-by-case basis if they meet the above criteria.

Emergency Assistance:

  • What has changed?
    The Ontario government has announced changes to the administration of social assistance in response to COVID-19. Most importantly, payments to recipients will no longer be suspended because of a recipient’s failure to report income. The Eligibility Verification Process reviews are also put on hold. Recipients may also be able to access additional discretionary benefits by contacting their caseworkers.
  • What is missing?
    First, the social assistance benefit rates should be increased. These rates are far below the poverty line, and are less than the cost of food and housing alone. In the past year, the rates were not increased to keep up with inflation, and are insufficient for coping with additional needs during a pandemic.
    Second, earning exemptions for OW and ODSP should be expanded. Any income received from sources other than employment is generally deducted dollar-for-dollar from OW and ODSP benefits. This prevents low income Ontarians to fully benefit from EI or the newly announced emergency benefits at this critical time.
    Third, there should be a hold on collecting and assessing overpayments from recipients. The Ministry has discretion to forgive overpayments that may arise if recipients have difficulty in reporting income during the pandemic. The resulting stress and financial pressure would be detrimental to the health of recipients and the public.
  1. Emergency Assistance
    • What is it?
    In Ontario, low-income families and individuals who are not already receiving OW or ODSP may qualify for Emergency Assistance if they face an emergency situation where they cannot meet basic needs or shelter expenses. The amount of assistance is up to the discretion of an administrator, and it may include an amount for basic needs, shelter, and benefits. Typically, an applicant only receives Emergency Assistance for a period of up to 16 days and cannot apply more than once in a six-month period (with some exceptions).
  • What has changed?
    Ontario has announced that access to Emergency Assistance will be expanded for those who do not qualify for emergency financial support under federal programs. In particular, Ontario will make Emergency Assistance available for up to 48 days at a time (up from 16) and allow families and individuals affected by COVID-19 to apply for Emergency Assistance more often than once every six months. An application for Emergency Assistance can now be made here.
  • What is missing?
    It is not clear exactly how much assistance Ontarians affected by COVID-19 can expect to receive from this program, given its discretionary nature.
  1. Canada Child Benefit and Ontario Child Benefit
    • What is it?
    The Canada child benefit (CCB) is a tax-free federal benefit paid monthly to help with the cost of raising children under 18 years of age. Eligible families receive up to a monthly maximum of $553.25 for each child under 6 years of age or $466.83 for older children. Eligibility for CCB requires filing income taxes and meeting certain immigration status requirements.
    The Ontario Child Benefit (OCB) is an additional payment provided by the Province of Ontario to low and moderate income families who receive the CCB, up to a maximum of $120 per child. For those families who receive social assistance but are ineligible for the CCB or OCB, Ontario provides the Transition Child Benefit (TCB), which is $230 per child each month.
  • What has changed?
    The federal government has announced that the May 2020 payment will be increased by up to $300 per child, for one time only. Each family receiving CCB will get an average of $550 more than other months, depending on their number of children and income level.
    There has been no change to the OCB or TCB as of yet.
  • What is missing?
    Eligibility for the Canada Child Benefit should be expanded to provide a benefit to all children. Some of the most vulnerable children, including some Canadian-born children, are excluded from support under the existing federal CCB and provincial OCB (top-up) programs. Excluded children receive only TCB, an amount that is currently less than 50% of what is available under CCB, before the potential OCB top-up. The Income Tax Act must be amended to provide these benefits to all children, regardless of their parents’ immigration status.
  1. Forthcoming: Other Income Support Programs
    In the following days, ISAC will provide information about additional income support programs that may be available at this time, including Workplace Safety and Insurance Benefits, Canada Pension Plan benefits, and Old Age Security.

Read on the ISAC website »

News

PUBLIC NOTICE

Kingston Community Legal Clinic has been closely monitoring the COVID-19 developments. As a result, we have decided that the doors to the Clinic will be closed until further notice. This decision was not made lightly.

The Clinic is still operating, but in the interest of our clients, as well as our staff, we must limit interactions between people, as advised by public health.

Please call 613-541-0777 Ext. 0, or email mcintost@lao.on.ca, to complete an intake. If you do not have a phone, or access to email, please ring the doorbell and someone will attend to speak to you.

We will continue to follow the situation closely, and will make changes as necessary.