Consent Order and its binding between parties.

When you are dealing with the matter at the Landlord and Tenant Board, sometimes you will hear about "an order on consent". Here is some useful information that helps you understand more about what the order on consent is, and its consequences if breached.

An order on consent (“consent order”) is an agreement between the parties to settle an application that is turned into a formal Landlord and Tenant Board (Board) order. The Board will mail a copy of the consent order to each party after it has been issued. The Landlord and Tenant Board only has jurisdiction in matters covered by the Residential Tenancies Act, therefore the terms of the consent order must comply with the Act. However, only settlements mediated by the Board may contain terms that contravene the Act and the parties may also agree to something that is outside the Board’s jurisdiction in a written side agreement. Once an order has consented, it cannot usually be changed or reviewed.

How to obtain an order on consent at the hearing?

The consent order can be negotiated on the day of the hearing:

• Through formal mediation at the Board,
• By the parties representatives, or
• By the parties themselves.

Once the parties have reached a settlement, the terms should be presented to the Member in the hearing. Consent orders are very hard to review if something goes wrong.

Consequences would arise from breach of a consent order. A consent order may contain a “section 78 clause” allowing the landlord to apply for an ex-parte order for eviction without notice to the tenant for a breach of a term of the order. However, any term of the order which is a condition for eviction without notice must meet two tests:

1. It must be the same reason that was raised in the eviction application that was settled, and
2. The reason must be one recognized by the Act.

A Tenant may bring a motion to set aside the ex-parte order within 10 days from the date the order is issued if the tenant feels there was no breach or they wish to dispute the ex parte order. If the tenant misses this 10-day deadline, they will need to request an extension of time to file the motion. The Board has discretion to grant relief from eviction under section 78(11) (b), by setting aside the ex parte order, notwithstanding the fact that the tenant breached a term of the consent order, if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so. Sometimes, a consent order will contain a standard termination order and then the landlord will agree to a separate “side agreement” allowing for a longer payment plan. The landlord may agree not to enforce the order as long as the tenant makes the payments in accordance with the agreement. The Board has no jurisdiction to consider side agreements.

How to obtain the consent order without the hearing?

The Board may issue an order on consent without holding a hearing if:

• The parties reach a written agreement resolving the application;
• The agreement is signed by all parties;
• A copy of the agreement is filed with the Board before the hearing begins.

Inadvertence with obtaining a consent order at the hearing, when the parties obtain the consent order without the hearing, there are some restrictions on its binding content and consequences, such as:

• The consent order may only require payment of arrears, NSF cheque charges or related administration charges that are owing, the landlord’s application fee to the Board, and any rent that becomes due during the period in which the arrears are required to be paid.
• The consent order cannot include a provision for eviction or an application under section 78 for failure to comply with the order.

If the tenant fails to comply with a term of the order, the landlord has 30 days from the date the tenant breaches the order to file a request to reopen the application with the Board. A tenant may also request to reopen the application within 30 days if they believe that the landlord coerced or deliberately provided false or misleading information when they signed the agreement.