An adjudicator at the Landlord and Tenant Board who admitted to being in a conflict of interest issued an order advocates say weakened the legal position of a tenant facing eviction after losing his job during the first wave of the COVID-19 pandemic.
On Nov. 25, adjudicator Shannon Kiekens was presiding over a virtual hearing between Pinedale Properties and a member of a largely immigrant, working-class tenants’ union, the East York 50.
The lawyer for Pinedale Properties, Kristin Ley, works for the prominent pro-landlord law firm Cohen Highley, where Kiekens worked as a paralegal for 20 years until earlier this year.
In a video of the hearing shared by People’s Defence Toronto, which describes itself as an organization fighting to build political power for poor and working-class people, Kiekens said she was in a possible conflict of interest and would recuse herself and adjourn the hearing until another adjudicator was available.
“That should’ve been the end of the hearing,” said Raj Anand, a lawyer with expertise in administrative law and member of Tribunal Watch Ontario, a recently formed watchdog of Ontario’s various administrative tribunals, including the Landlord and Tenant Board.
“If you have a potential conflict … you can’t make any decision of any kind.”
Despite raising the possible conflict, Kiekens asked the lawyers whether they wanted her to issue an interim order, which is a temporary order usually put in place until a case can be fully heard.
When asked for comment, the Landlord and Tenant Board said in an emailed statement that “all members (adjudicators) at the LTB, including Ms. Kiekens, are appointed using an open, merit-based recruitment process. … Once appointed, adjudicators are subject to conflict of interest rules and are trained on how to address any actual or perceived conflict of interest issues.”
A spokesperson for Pinedale Properties said in an email “as this is a legal matter related to board operations, (Pinedale) believes this is a matter best addressed by the Landlord and Tenant Board itself.”
Kiekens, Ley and Cohen Highley did not respond to requests for comment.
At the hearing, Ley, the lawyer for Pinedale, requested that the tenant be ordered to pay his rent in full and on time going forward.
Aliah El-houni, the lawyer for the tenant, counter-argued that such an order was unnecessary: since October, the tenant has been paying his rent and instalments of the money he owes for the rent he did not pay after being furloughed during the first wave of COVID-19.
“I understand again that I do have a conflict,” Kiekens responded, before asking El-houni why she and her client would not consent to the interim order Ley was seeking — which would require the tenant to pay his rent in full and on time going forward.
El-houni argued that, with Toronto in a second lockdown, it was hard to forecast the tenant’s financial future, in addition to the fact that the order was unnecessary.
Kiekens imposed the interim order that the tenant continue to pay his full rent anyway, reasoning that neither the tenant nor Pinedale Properties would be unfairly disadvantaged if the tenant could not pay his rent due to the second lockdown and breached the order, since a new adjudicator would be presiding over the next hearing.
But Anand of Tribunal Watch Ontario counters that the tenant would be unfairly disadvantaged. Kiekens’s decision to make an interim order while in a conflict of interest is glaringly procedurally unfair, he said, and “I don’t think there’s any doubt that it’s a disadvantage to the tenant.”
“The landlord’s one step ahead,” Anand said. If the tenant doesn’t pay his rent going forward, and asks for more time when he comes before the next adjudicator, the landlord will have an extra argument: the tenant has breached the board’s order. So he’s “behind the eight ball.”
“It increases his chances of being evicted,” said Kenn Hale, legal director of the Advocacy Centre for Tenants Ontario and another member of Tribunal Watch Ontario. If the tenant misses his upcoming payments and breaches the order, it “adds a bit of weight” to the landlord’s position that he should be evicted. It is not guaranteed that the tenant would be evicted, but in those cases where tenants find themselves struggling to pay all their rent, “it could make a difference,” Hale said.
El-houni says some of her clients are in that very situation because they have not worked since losing their minimum-wage jobs in March. All her clients are paying rent, but some are paying it in full while others are doing so “within their means,” she said. Twenty of her clients are under interim orders to pay their rent in full and on time, which she considers to be reflective of how widespread and standard these orders are.
“These orders are very common,” Hale said. While he and El-houni say that this sort of order can be appropriate and reasonable, “its overuse suggests that the LTB (Landlord and Tenant Board) sees itself less as a protection for tenants from unfair eviction and more as the enforcer of timely rent payment,” Hale said.
Even if Kiekens had not placed this interim order, the fact that she presided over this hearing at all points to larger problems at the Landlord and Tenant Board, according to Ron Ellis, one of the foremost experts of administrative tribunals in Ontario and a member of the steering committee of Tribunal Watch Ontario.
“It is some evidence of institutional disarray since the assignment of the case to this adjudicator is so obvious a mistake that it is surprising that the assignment to this adjudicator was made by the board’s registrar in the first place,” he said.
El-houni and her colleagues are now taking steps to have the interim order reviewed. “But we don’t know what the outcome of that review will be, and we certainly don’t anticipate that we’ll get it before it will already be too late.”