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RTA - Fairness. Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court considered the Baker 'importance of decision' issue, here in an LTD context:[19] This court has found that procedural fairness before the LTB is at the higher end of the spectrum of procedural fairness because of the high stakes for all parties, among other things: Shapiro v. Swingler, 2021 ONSC 6191, [2021] O.J. No. 4832 (Div. Ct.), at para. 39. While the Respondent submits that an unauthorized occupant does not have the same entitlement to procedural fairness as a tenant, s. 183 of the RTA states that “all persons directly affected by the proceeding [are to be given] an adequate opportunity to know the issues and be heard on the matter” (emphasis added). Moreover, the very issue of whether the Appellant was an unauthorized occupant or tenant was one of the issues to be determined in the proceeding. . Carr v. Brown
In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but excluding the tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting the tenant's to cross-examine on direct examination that they had been excluded from hearing [para 32].
The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals. The entire case is an example of how far administrative law has generally degraded justice in Ontario.
. Schram v. Thompson
In Schram v. Thompson (Div Court, 2022) the Divisional Court held that the Baker 'fairness' importance standard for RTA matters was high:[33] The adjudication of residential tenancy disputes requires a level of procedural fairness "at the higher end of the spectrum": Baker v Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), at paras 28, 30, 4547; Shapiro v Swingler, 2021 ONSC 6191 (Div. Ct.), at paras. 39-42. The right to be heard is a “fundamental precept of our system of justice": See, Duncan v. Toronto Community Housing Corp, 2015 ONSC 4728 (CanLII) at para 2.
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