Simon's Megalomaniacal Legal Resources

RTA - Appeals - Questions of Law [s.210]

. O’Shanter Development Company Ltd. v. Adai et al

In O’Shanter Development Company Ltd. v. Adai et al (Div Court, 2023) the Divisional Court considers the remedial jurisdiction of the court under RTA s.210:

[15] Under subs. 210 (4) and (5) of the RTA, I may affirm, rescind, or replace the Order of the Board; remit the matter to the Board with the Divisional Court’s opinion; or make any other order, including with respect to costs, that I consider proper.

. Sapershteyn et al v. 1821317 Ontario Limited et al

In Sapershteyn et al v. 1821317 Ontario Limited et al (Div Court, 2023) the Divisional Court [at para 31] highlights a feature of LTB appeal law [RTA 210] - ie. "the Board has the legal opportunity to be wrong in its application of the facts to the law". This point can be supplemented with the new 'Yatar' judicial review (JR) law, which provides the reviewing party with a 'reasonableness' SOR - if the party goes to the trouble a filing an additional JR:

[27] The crux of the appeal is the issue of the Board’s application of s. 135.1 to the circumstances presented. This raises the question of whether the issue raised by the appellant is a question of law or a question of mixed fact and law.

[28] The appellant framed the issue as whether the Board erred on the facts in deciding that the May 26, 2020 endorsement was a final determination per s. 135.1.

[29] To determine that issue, this Court would have to delve into the facts and determine whether the Board’s application of s. 135.1 to the facts was an error. I am of the view that such a determination is a question of mixed fact and law.[19] The appellant is asking this Court to substitute its decision of the application of the facts to s. 135.1 to that of the Board.

[30] It is undisputed that the Board has special knowledge and expertise as it concerns residential tenancies and its processes for addressing disputes. Deference must be given to the Board’s assessment of the factual matrix of issues and the application of the facts to the law. It is a clear intention of the legislature per s. 210 of the RTA that this Court is only to interfere with a Board’s decision on questions of law.

[31] Whether this Court would have come to the same conclusions as the Board on its application of the facts in this matter is not the issue. The Board has the legal opportunity to be wrong in its application of the facts to the law. As long as the Board utilized the right test, which the Board did in this circumstance, of whether there was a final determination of the issue of the validity of the rent increases before July 21, 2020, this Court has must not interfere with the Board’s assessment.

. Pelletier v. Bloorston Farms Ltd.

In Pelletier v. Bloorston Farms Ltd. (Div Court, 2023) the Divisional Court held that the LTB's 'failure to consider facts' that it should have constituted an 'error of law', not only on error of fact:

[11] In applying this section on a motion for relief from eviction, the Board is required to examine the facts and circumstances surrounding the making of the agreement and the broad context of the dispute between the parties: Pinto v. Regan and White v. Regan, 2021 ONSC 5502 at paras. 28-29. Failure to consider facts it was bound to consider under these provisions will constitute an error in law by the Board.

. Delic v. Enrietti-Zoppo

In Delic v. Enrietti-Zoppo (Div Ct, 2022) the Divisional Court considered (the answer was 'no') whether RTA s.210 allows for the appeal of an interlocutory order [s.210 doesn't specify 'final' orders]:

[2] The first question requires us to decide whether s.210 of the Act gives a right of appeal from an interlocutory order.

[3] The tenants filed a notice of appeal on April 23, 2021 from two interlocutory orders of the Landlord and Tenant Board. They filed a notice of appeal on June 25, 2021 from the review on May 12, 2021 of an eviction order of February 13, 2020 and the review of the review, which was released on May 26, 2021. It is agreed that the eviction order of February 13, 2020 has been stayed by the appeal of June 25, 2021.

The notice of appeal of April 23, 2021 was an appeal with respect to two interlocutory orders and did not stay the proceedings.

[4] This notice of appeal purported to appeal the Board’s order of March 3, 2021 and the decision on review of March 18, 2021, which upheld the order of March 3.

[5] In the decision of March 3, 2021, the Board ruled that an order in a previous proceeding, refusing eviction as required by s.83 of the Act because the heat had been turned off, did not decide issues related to rent and did not give rise to res judicata and issue estoppel in a subsequent proceeding to collect rent.

[6] The decision of March 3 was not a decision to evict the tenants or terminate the tenancy, so the automatic stay provided by Rule 63.01 did not apply.

[7] It is not the form of the order, but its effect that governs. An interlocutory decision can contain final orders. An order is final if it disposes finally of a claim. An order is not final just because it is one of substance. Where the effect of an order is to continue the inquiry, it is not final.

[8] The order of March 3, 2021 was an interlocutory order, in name and in effect. It did not finally dispose of the issues between the parties. All the Board decided on March 3 was

a. that the landlord was not estopped from applying to recover rent; and

b. that the application could continue.

[9] The stay pending appeal from the order of a statutory decision-maker provided by s.25 of the Statutory Powers Procedure Act did not apply because the notice of appeal of April 23, 2021 was a nullity. The Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order.

[10] The Act provides:

210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

[11] Jurisprudence in this court with respect to similar provisions for statutory appeals from other tribunals has consistently held that in the absence of an explicit right of appeal from an interlocutory decision, only a final order of a tribunal can be appealed.[1] Tribunals and boards are designed to provide expeditious access to justice. That intention is evidenced in section 2 of the Statutory Powers Procedure Act and, with respect to the Landlord and Tenant Board in particular, in section 183 of the Residential Tenancies Act, 2006, which provides:

183 The Board shall 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.

. Lacroix v. Central-McKinlay International Ltd.

In Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022) the Divisional Court affirmed that RTA s.210's limitation on appeals includes procedural fairness issues, and that procedural fairness is assessed on an objective standard:

[9] This court has jurisdiction over this appeal by virtue of s.210 of the Residential Tenancies Act, 2006, SO 2006, c.17, which provides for an appeal to this court from an LTB order solely on a question of law. Procedural unfairness is considered a question of law for the purposes of s.210.

[10] The standard of review for questions of procedural fairness is “fairness”, sometimes understood as “correctness”. The court determines whether fairness has been accorded to the appellant based on the events as they unfolded, basic principles of fairness as developed in the jurisprudence, and the tribunal’s own rules and procedures: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817; Peel Housing Cooperative o/a Peel Living v. Sharpe, 2017 ONSC 6303, per F.B. Fitzpatrick J. (Div. Ct.).

Fresh Evidence

[11] The tenant seeks to adduce as fresh evidence an affidavit setting out his internal thought processes at the hearing. We would not admit this fresh evidence for three reasons:

(a) the proposed fresh evidence does not shed light on events at the hearing in a manner bearing on procedural fairness.

(b) the tenant’s internal thought processes are not relevant to an issue before this court. Procedural fairness is assessed on an objective standard. ...

. Capreit v. Veiga

In Capreit v. Veiga (Div Ct, 2022) the Divisional Court makes clear that RTA s.210 'questions of law' do not include ones of 'mixed fact and law':

[46] Section 210 of the Residential Tenancies Act, 2006 provides that appeals from the LTB may be brought “only on a question of law”. A question of law is a question about what the correct legal test is. A question of fact is about what actually took place between the parties. A question of mixed fact and law is a question about whether the facts satisfy the legal tests. Only questions about whether or not the LTB applied the correct legal test can be appealed to this court. Questions about whether the facts determined by the LTB satisfy the applicable legal tests are questions of mixed fact and law, and cannot be appealed: Solomon at paras. 31-33; Lafontaine v. Grant, 2019 ONCA 552 at paras. 6-7; Regan v. Ennis, 2016 ONSC 7143 at para. 23.

. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal considered the issue of whether, when a statute-limited appeal to 'questions of law' exists [here in LATA 11(6), but the same occurs in RTA 210 and the ODSPA 31(1)], that a party still has judicial review (JR) recourse when there were alleged errors with findings of matters of fact, or matters of fact and law. The Court of Appeal held that the 'questions of law' limitations - as they were a matter of statutory intention, something that Vavilov has re-affirmed respect for - were an intentional restriction in court review. While judicial review is still available where such a limited appeal existed, it was only available as a matter of JR discretion - which the doctrine of Strickland's 'adequate alternative remedy'(AAR) was an central aspect of. In finding AAR, the limited appeal and reconsideration were key 'remedial' factors:

[37] The Divisional Court was correct in concluding that the existence of an adequate alternative remedy was a valid reason not to exercise its discretion to hear and determine a judicial review application. In reaching that conclusion, the Divisional Court properly considered the various factors from Strickland. Those factors directed that result. I mention only a couple of those factors to reinforce the Divisional Court’s conclusion.

[38] First, it is evident from the amendments that the legislature made to the resolution of disputes over SABS that it intended to greatly restrict resort to the courts for the determination of those disputes. One can draw that conclusion from the fact that the legislature limited the statutory right of appeal to questions of law only. The result is that issues of fact or mixed fact and law are presumptively left to the Tribunal to determine, subject to the right to request a reconsideration. In this case, as the Divisional Court pointed out, there were no questions of law raised.

[39] Having said that, I recognize that the appellant still has the remedy of an application for judicial review available to her. That availability is clear from a number of sources, not the least of which is s. 280(3) of the Insurance Act. The section reads:

No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.

[40] Nothing turns on the decision of the legislature to include a reference to judicial review in this section. The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, already provides, in s. 2(1), that a “court may, despite any right of appeal, by order grant any relief” by way of judicial review. Further, the case law also makes it clear that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 24. Similarly, “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or aspects of decisions, to which the appeal mechanism does not apply”: Vavilov, at para. 52.

[41] The reference in s. 280(3) does not change the analysis nor does it change the fact that judicial review is a discretionary remedy. As Cromwell J. said in Strickland, at para. 37:

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief. [Citation omitted.]

[42] In my view, when the Divisional Court said that it would only exercise its discretion to hear and determine an application for judicial review in exceptional circumstances, what it was attempting to communicate is that it would only be in rare cases that the remedy of judicial review would be exercised, given the legislated scheme for the resolution of disputes over SABS. Put another way, the Divisional Court was recognizing that there would have to be something unusual about the case to warrant resort to the discretionary remedy of judicial review, given the legislative scheme. That legislative scheme includes the right to reconsideration of the Tribunal’s preliminary decision and the statutory right of appeal from decisions of the Tribunal on questions of law.

[43] The decision of the Divisional Court recognizes the legislative intent to limit access to the courts regarding these disputes. This analysis is consistent with the principles regarding the centrality of legislative intent expressed in Vavilov. It also recognizes certain realities regarding the remedy of judicial review. One is the fact that judicial review is a discretionary remedy. Another is that a court is entitled to “refuse to grant any relief on an application for judicial review”: Judicial Review Procedure Act, s. 2(5). Yet another is that the existence of an adequate alternative remedy is, itself, a reason that justifies the exercise of the discretion to refuse to hear a judicial review application: Strickland, at para. 42.

[44] On that point, I do not accept the argument put forward by the appellant that the Divisional Court conflated its discretion to refuse relief with its standard of review analysis and erred by refusing relief without first considering the merits of the application for judicial review. The court’s discretion with respect to judicial review applies both to its decision to undertake review and to grant relief: see, e.g., Strickland, at para. 42; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30.

[45] I also do not accept the argument advanced by the intervener, the Income Security Advocacy Centre, that the Divisional Court’s analysis of the legislative intent was “narrow and incomplete”. To the contrary, the Divisional Court correctly interpreted the legislative scheme as evincing an intention to limit recourse to the courts. It is inconsistent with the legislature’s decision to limit the right of appeal to questions of law alone to then hold that the remedy of judicial review is all‑encompassing. Rather, I agree with the Divisional Court’s approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis.

[46] Finally, I do not accept the thrust of the arguments advanced by the interveners, the Income Security Advocacy Centre and the Advocacy Centre for Tenants Ontario, that there must be a wide-ranging right to judicial review in cases such as this, or in cases involving tenants or social assistance recipients. That argument ignores the fact that the legislature has the right, through legislation, to restrict appeal rights. As the intervener, the Attorney General of Ontario, pointed out in its factum, “more checks on decision makers does not necessarily mean more justice.” It also ignores the salient fact that the remedy of judicial review is a discretionary one.

[47] Removing the requirement for exceptional circumstances does not change the rationale or result of the Divisional Court’s decision. It remains true that it will only be a rare case where the remedy of judicial review will be properly resorted to, given the alternative remedies that are available to an unsuccessful party. Those alternative remedies will be, in the vast majority of cases, “adequate in all the circumstances to address the applicant’s grievance”: Strickland, at para. 42.

[48] On this point, I accept that the Divisional Court’s statement, in the penultimate paragraph of its reasons, that judicial review is only available “if at all” in exceptional circumstances, was also unfortunate and unnecessary. It is clear, both from the legislative sources and from case law to which I have referred above, that judicial review is always available. The pertinent question is whether it is appropriate, in any given case, to exercise the discretion to hear and determine that judicial review.

. Bailey v. Capreit Limited Partnership

In Bailey v. Capreit Limited Partnership (Div Court, 2022) the Divisional Court heard a simple LTB appeal of a public housing tenant which the landlord did not oppose, and the court granted as a new LTB hearing. The appellant-tenant wanted the matter resolved to 'clear his name' but the court said that, as RTA s.210 only allowed appeals on 'questions of law', it could only order a new LTB hearing:

[8] Justice Lederer explained to Mr. Bailey that the Divisional Court can only hear appeals from the Landlord and Tenant Board that deal with questions of law: Residential Tenancies Act, 2006, S.O. 2006, c.17, s. 210. Justice Lederer explained that the Court cannot reconsider factual findings made by the Board or substitute its decision for the Board on factual matters. Justice Lederer explained that all the Court can do is decide whether a legal error was made at the hearing before the Board. If an error was made by the Board, all this Court can do is order that the Board conduct a new hearing. Justice Lederer explained to Mr. Bailey that he can put the evidence he has before the Board at his new hearing and can make arguments at the new hearing about the authenticity and veracity of the landlord’s evidence.

RTA appeal remedies turn on RTA 210(4-5) [and conceivably CJA 134 which is not considered here], which reads:

RTA s.210(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Board with the opinion of the Divisional Court.

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.

My concern is that the court has conflated the grounds of appeal - which they seemed to disregard analysis of, treating the landlord's position as a essentially a consent to allow the appeal, and the remedies - which, if you're going to consent to the appeal - should sensibly allow for a full rescission of the LTB order below, not just a re-hearing order. The court makes no mention of RTA 210(4) or (5) - and 210(5) seems tailor-made for the situation.

Am I missing something? Was the court acceding to the appellant's insistent of 'clearing his name' to the extent of him risking the outcome of a new LTB hearing? If so, did the self-repper appellant realize this risk?