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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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RTA - Landlord and Tenant Board

. Shearer v. Oz

In Shearer v. Oz (Div Court, 2024) the Divisional Court dismissed an appeal in an extended RTA struggle that continued years after the tenant had "moved out of the house about eighteen months later [SS: after the tenants taking possession], on July 26, 2019".

Here the court gives a reality check on the limited services that parties should expect from the LTB, as a high-volume administrative tribunal:
II. Sufficiency of Reasons

[56] The Board is a high-volume tribunal which must manage its resources carefully. The Tenants complain bitterly about delays they experienced in their own case. If every LTB file consumed the resources dedicated to the disputes between these parties, the process before the Board would grind to a standstill. The Board provided extensive reasons for its decision and thereby reasonably explained why it decided as it did.

[57] In particular, the Board was not required to wrestle minutely with all aspects of the evidence on the issue of heat loss and insulation. It accepted the evidence of the only “neutral third party”, and the conclusions it reached based on this evidence are supported by evidence before the Board.
. Stenka v. Garten

In Stenka v. Garten (Div Court, 2023) the Divisional Court considered the 'balancing' of RTA 183 ['Expeditious procedures'] with the need for procedural fairness:
[42] I note that while the LTB Rules and case law recognize the need for discretion and flexibility for the Board to conduct hearings in an expeditious manner, efficiency is not to be divorced from the requirement to conduct hearings fairly. As this court held in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083, [2019] O.J. No. 1620 (Div. Ct.), at para. 41:
[41] Section 183 of the Act requires the Board to adopt the “most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter” (emphasis added). Thus, the Act requires the Board to balance the need for expedition with the need for procedural fairness.
. Sutton v. Patterson and Morrow

In Sutton v. Patterson and Morrow (Div Ct, 2021) the Divisional Court decided that the LTB has jurisdiction to decide whether occupants owned land lease cottages in order to decide their treatment under the RTA, but that such a finding did prejudice the ownership issue for non-RTA purposes (ie. issue estoppel did not apply):
[23] Thereafter, the Board issued an Interim Order in which it rejected the argument that it lacked jurisdiction to determine ownership. The Board found it necessary to determine whether the rental units consisted of just the land, or the land and the cottages, in order to dispense with the applications. More specifically, because the Appellant asserted that he required the cottages for his children’s use, the Board found it could only evict if the “rental units” at issue were the cottages. Alternatively, if, as the Respondents asserted, they owned the cottages, then the Board could not order eviction because the “rental unit” was the land or site on which the cottages were situated.

[24] As a result, the Board gave the parties the opportunity to make additional written submissions and present evidence on the issue of ownership. In their submissions, none of the parties asserted that the Board lacked jurisdiction to determine ownership because it had already made a decision that it did not have jurisdiction to decide this issue, nor did anyone object to the Board’s direction that the second part of the hearing on the issue of ownership be conducted in writing as opposed to orally. [25] After considering all of the evidence, the Board, in preferring the Respondents’ view on the subject of ownership, found it more likely than not that the cottages were each a “land lease home”, which the Board was entitled to do.

[26] The RTA gives the Board exclusive jurisdiction to determine all applications under the Act and gives it the authority to hear and determine all questions of fact and law with respect to all matters within its jurisdiction, specifically:
168(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

174 The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act.
[27] The Appellant filed an application under s. 48(1) of the RTA. It is uncontested that the Board had exclusive jurisdiction to determine it. By virtue of ss. 168(2) and 174, in so determining, the Board had authority to hear and determine all questions of fact and law with respect to the application.


[33] In Warraich v. Choudhry, 2018 ONSC 1267 (Div. Ct.), at paras. 41 and 57 (“Warraich 2”), the Court rejected the argument that the Board erred in law or exceeded its jurisdiction in determining that the Appellant was not a co-owner of the property. Rather, the Court found that the Board made its determination for the purpose of deciding whether the Appellant was a “tenant” within the meaning of the RTA and not to address any rights or obligations flowing from an ownership interest. Determinations made for such a limited purpose are not binding on a court and a party is not prejudiced.

[34] As of the date of this hearing, there was no extant application initiated in the Superior Court to determine the ownership issue. Rather, the Appellant chose not to seek court determination of ownership for reasons that were not explained in the record. In any event, in my view, the Appellant is not prejudiced from prosecuting the ownership issue in other contexts because the finding of the Board was made solely for the purpose of determining what constituted the “rental unit” within the meaning of the RTA.
. Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa

In Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa (Div Ct, 2022) the Divisional Court reviews the RTA and SPPA relationship regarding hearings:
[22] All proceedings before the Board are governed by the Statutory Powers Procedure Act, [5] (“SPPA”). Section 25.01 empowers the Board to determine its own procedures and practices. When the Board determines the hearing format, it must comply with s.52(2) [sic: 5.2(1)] of the SPPA and ss.2 and 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020.[6]

[23] The RTA directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter”.

[24] The Board has issued Interpretation Guidelines, one of which provides that “[w]here the member is satisfied that the party has received sufficient notice of the hearing and has been provided with an adequate opportunity to prepare their evidence and submissions, summons witnesses and obtain counsel ahead of the hearing date, an adjournment is not usually granted unless there are exceptional circumstances”.
. Reisher v. Westdale Properties [for numbered case cites see main link]

In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court reviews the legislative role of the LTB and reinforces it's high-volume procedures:
The Landlord and Tenant Board

[11] Before entering into the analysis of the issues in this appeal, it is worthwhile to consider the role the Landlord and Tenant Board plays within the legislative scheme that addresses the relationship of tenants and landlords. The legislation recognizes that relative power within this relationship favours the landlord. The legislation is designed to bring that foundational aspect of the relationship closer to balance:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.[9]
[12] This is accomplished in part through substantively favouring tenants, as in s. 83 where the Board is required to refuse an order of eviction unless, having regard to all the circumstances, it determines that it would be unfair to refuse to do so. But as already noted and as the Act also prescribes, the adjudication of disputes is to be provided within the framework of regulation that attempts to balance the rights of tenants and landlords. Absent this prescription the position of landlords would be superior to that of most tenants. As a general rule, landlords are more likely to have the resources and ability to retain counsel and whatever other experts are required. Many tenants cannot. A loosening or broadening of the rules generally applicable in court, applicable to both sides, serves to bring increased balance to the way in which these disputes are adjudicated and resolved. It is the Landlord and Tenant Board that sets the rules that govern the procedures and practice applicable to the hearings it conducts.[10]

[13] The need for a broader, less structured approach, is underscored by the nature of the task. The Landlord and Tenant Board, appropriately describes itself as a high-volume tribunal. It received 61,586 applications and 2,452 requests for review in the 2021-2022 fiscal year. These numbers require it to adopt procedures that, while providing an adequate opportunity to understand the issues and for both parties to be heard, allows for expedition. Vavilov notes that not all Boards can be expected to produce reasons with the degree of exactness required of the courts:
Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice,” and reviewing courts must remain acutely aware of that fact.[11]


The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.[12]
. Daly v. Ontario (Landlord and Tenant Board)

In Daly v. Ontario (Landlord and Tenant Board) (Ont CA, 2023) the Court of Appeal considered the 'sue-ability' of the LTB (an administration tribunal) and the Crown itself, both in the context of an lawsuit by a aggrieved tenant:
[6] In her submissions, the appellant does not directly address either of the grounds upon which the motion judge reached his decision. In any event, there is no error in the motion judge’s conclusion on either of those grounds. The LTB is not a suable entity. Moreover, s. 232(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 makes clear that no proceeding for damages can be commenced against members of the LTB who have exercised their duties in good faith. These principles have been confirmed by this court: Raba v. Landlord and Tenant Board, 2014 ONSC 2599, at paras. 5-10, aff’d 2014 ONCA 864, at para. 1. The appellant’s attempt to distinguish Raba does not succeed. While we note that the appellant raised the constitutionality of s. 232(1) of the Residential Tenancies Act in her fresh as amended statement of claim, that challenge was not properly brought, it was not dealt with by the motion judge, and it is not the subject of this appeal.

[7] Similarly, the Crown is not liable for anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 9(2)(b). The relationship between the Crown and members of quasi-judicial boards and tribunals exercising an adjudicatory authority derived from statute is outside the ambit of vicarious liability: see Speckling v. Kearney, 2007 BCCA 145, at para. 4.
. Zhao v. Chao

In Zhao v. Chao (Div Court, 2022) the Divisional Court (Corbett J, who hears a lot of these appeals), hearing a landlord's appeal, characterized the nature of the LTB and compared it to the Small Claims Court as being suited for people who must either learn it's procedures and self-represent, or otherwise hire representation:
[4] All parties attending the Landlord and Tenant Board are expected to become familiar with the process at the Board and the hearing process, to obtain representation if they feel that they are unable to participate in the process without that assistance. In this case, we have the landlord, who owns the unit, and chose to be self-represented rather than to engage a paralegal or lawyer or to obtain advice prior to the hearing, and who then chose to make her own decisions about what evidence to tender at the hearing. This is not a basis to permit the landlord to adduce fresh evidence after the Board’s decision.

[5] The Landlord and Tenant Board is very much like the Small Claims Court in that it has a great many people who are self-represented or are represented by agents who are inexperienced. The process before the Board will be defeated in large part if a party can avoid its failure to bring all of its evidence to the hearing by simply saying that he/she was self-represented, and did not know any better, and so should have a re-hearing on fresh evidence in this court after receiving adverse decision from the Board. In my view, through the exercise of due diligence, this evidence could have been available at the hearing and that in of itself is a complete answer to the application for fresh evidence.


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Last modified: 02-04-24
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