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RTA - Notice of Hearing. Smith v. Japra
In Smith v. Japra (Div Ct, 2026) the Divisional Court allowed a tenants' RTA s.210 appeal, here brought against "a decision of the Landlord and Tenant Board ("LTB") dismissing their request for review of an order issued on the respondents' L10 application" ['Application to Collect Money a Former Tenant Owes'].
The court considers the relative burden on parties to an LTB proceeding to both give and receive notice, and here also considers the SPPA s.6(1) ['Notice of hearing'] provision:[12] Did the review member commit an error of law by concluding that the appellants were reasonably able to participate in the proceeding notwithstanding the absence of notice of the hearing?
Analysis
A. Procedural Fairness and the Right to Notice
[13] Whether a party has been denied procedural fairness is a question of law and is therefore within this court's jurisdiction on appeal: Shapiro v. Swingler, 2021 ONSC 6191, at para. 25. The correctness standard applies on a question of law: Reid v. Shewen, 2025 ONSC 4196 (Div. Ct.) at para. 43.
[14] This court is tasked with evaluating whether the rules of procedural fairness were adhered to by assessing the circumstances giving rise to the allegation they were not, and by determining what procedures and safeguards were required to comply with the duty to act fairly: Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658 (Div. Ct.) at para. 15, quoting London (City) v. Ayerswood Development Corp. 2002 Can LII 3225 (ON CA) at para. 10.
[15] Section 6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 ("SPPA") provides that a party to a proceeding shall be given reasonable notice of the hearing. Section 6(3) requires that the notice specify the time, place, and purpose of the hearing. The statutory obligation is fundamental to the right to be heard.
[16] Equally, Rule 5.1 of the LTB's Rules contemplates that a notice of hearing will be served on parties by the LTB via email. While Rule 5.2 allows the LTB to direct that service be effected by another party in certain circumstances, there is no evidence that any such direction was made in the present case, and the Rules do not require that the parties access the LTB’s online portal to obtain the notice of hearing.
[17] It is common ground that the LTB did not email a notice of hearing to the appellants. The review member expressly acknowledged that fact. The review member further accepted that it was possible the notice was not enclosed within the package served by the respondents.
[18] Significantly, the review member did not find that the notice of hearing had in fact been received by the appellants and there is no evidence supporting the conclusion that the tenants knew the hearing was scheduled by checking the online portal. The review member noted the LTB’s file confirmed they logged into the portal on June 24, 2024, but there was no indication they logged on again after the notice was posted, prior to the hearing.
B. The Applicable Jurisprudence
[19] The governing legal principles are well established. Section 209(2) of the RTA provides the LTB with the power to review a decision or order “if a party to the proceeding was not reasonably able to participate”.
[20] In Abdalla et al. v. Koirala, 2023 ONSC 7106 (Div. Ct.) at para. 17 this court held that the phrase "not reasonably able to participate" in s. 209(2) of the RTA must be interpreted broadly to ensure natural justice. Where a party demonstrates an intention to participate in a hearing but is prevented from doing so, the party should ordinarily be afforded relief through the review process.
[21] The court in Abdalla (at paras. 18 and 19) further distinguished those circumstances from cases involving a genuine lack of diligence. A party who simply ignores a proceeding cannot invoke procedural fairness to obtain a second hearing. However, where participation is prevented by circumstances beyond the party's control, the review provisions exist to protect the integrity of the process.
[22] The appellants rely on King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ON SCDC), at para. 3, wherein the three-member panel of the Divisional Court emphasized that natural justice requires that a party who intended to participate but was prevented from doing so be afforded a meaningful opportunity to be heard. As noted by the panel, “natural justice requires no less”. In that case, the court held that even when a tenant received proper notice of the hearing, but made a mistake about the hearing date, a new hearing should be ordered.
[23] In Timbercreek Asset Management Inc. v. Soufi, 2024 ONSC 4041 (Div. Ct.) the appellant tenant failed to attend two hearings and an eviction order was made in his absence. There was no dispute that the notice was sent. This court set aside the reconsideration order and remitted the matter back to the LTB before a different panel, and held the tenant provided a reasonable explanation for not attending – he didn’t understand it. His disability and the impact an eviction would have on him warranted the application of a broad interpretation of the “not reasonably able to participate” test. Timbercreek emphasizes that a party has a fundamental right to participate in a hearing.
[24] In Zalzman v. Kim, 2022 ONSC 1842 (Div. Ct.) the tenant attended a hearing which was adjourned. The court held that while notice of the next hearing was mailed to the tenant by the LTB, there was “no positive evidence” it was received other than the mail was not returned. The tenant was not faulted for failing to contact the LTB to determine the new date.
[25] This court’s decision in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) is oft cited in cases involving orders made where the opposing party did not appear. That case involved a landlord against whom a rent abatement order was made. The LTB’s file indicated that the notice was sent to the landlord’s head office, but the landlord claimed it did not receive notice. The review member found the evidence was more consistent with a lack of due diligence on the part of the landlord’s staff. Although the appeal was dismissed, the court did not suggest it was incumbent upon the landlord to search the portal, or contact the LTB, to ascertain the hearing date.
[26] These authorities’ direct attention to a practical question: was the party reasonably able to participate in the hearing that occurred? The inquiry is not whether, in hindsight, additional investigative steps by a party might have been taken.
C. The Review Member's Error of Law
[27] In the present case, the review member accepted that the appellants' evidence regarding non-receipt of the notice of hearing was credible. The review member also accepted that the LTB itself had not emailed the notice and that it was possible the notice had never been enclosed with the respondents' service package. Those findings should have directed the analysis toward whether the appellants were reasonably able to participate in the hearing.
[28] Instead, the review member concluded that the appellants should have monitored the LTB portal or contacted the LTB to determine whether a hearing had been scheduled.
[29] In my view, that conclusion cannot be reconciled with the statutory scheme or the jurisprudence. Neither the SPPA, the RTA, nor the LTB's Rules impose a legal obligation on parties to continuously monitor the LTB portal in anticipation of a possible failure of notice. Nothing in the governing legislation shifts responsibility for notice from the LTB to the recipient. No supporting jurisprudence for the decision was cited in the decision; the review member effectively transformed a statutory entitlement to receive notice into an obligation to search for notice.
[30] That approach improperly conflates notice of the existence of a proceeding with notice of the hearing itself. A party may know that an application was commenced without knowing when, where, or how that application will be adjudicated.
[31] The distinction is critical. Section 6 of the SPPA guarantees reasonable notice of the hearing, not merely awareness that litigation exists.
[32] The review member's reasoning effectively imposed a form of constructive notice. Under that approach, a party who never receives a notice of hearing may nevertheless be deprived of a hearing because the party failed to discover independently that one had been scheduled. Such an approach undermines the protections guaranteed by the SPPA and is inconsistent with the broad interpretation of participation rights mandated by Abdalla.
[33] Moreover, the review member’s apparent reliance on the fact that one of the appellants is a lawyer is misguided – there is no sliding scale of notice determined by a party’s profession or level of education.
D. The Appellants Demonstrated an Intention to Participate
[34] The evidence before the review member demonstrated a clear intention on the part of the appellants to participate in the proceeding. The appellants uploaded extensive documentary evidence, videos, and written submissions addressing the merits of the respondents' claim.
[35] Like the tenant in Zaltzman, their conduct was wholly inconsistent with a deliberate decision to ignore the proceeding. As the appellants submitted, it makes little sense that parties would expend considerable effort preparing a defence only to intentionally absent themselves from the hearing at which that defence was to be advanced.
[36] The review member's own findings support the conclusion that the appellants intended to participate but were prevented from doing so because they lacked notice of the hearing. In those circumstances, the authorities relied upon by the appellants point strongly toward the conclusion that they were not reasonably able to participate and that procedural fairness requires rehearing.
Disposition
[37] The denial of reasonable notice deprived the appellants of their right to be heard. This was not a mere procedural irregularity -- it constituted a breach of procedural fairness and therefore an error of law. . Ramsay et al. v. Shafiq
In Ramsay et al. v. Shafiq (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 appeal, here regarding "whether or not the Appellants were unable to participate in the eviction hearing because they allegedly did not receive the Notice of Hearing" (the case also refers to SPPA s.7 'Effect of non-attendance at hearing after due notice'):The Statutory Framework As It Relates To Notices Of Hearing And Implications Of Non-Attendance
[14] There is no dispute that parties to a proceeding before the LTB are entitled to receive notice of the hearing. The LTB has a discretion to either serve a notice of hearing on all parties or to order the applicant to serve the notice of hearing on the other parties. See sections 188-189 of the RTA.
[15] Pursuant to s. 191(3) of the RTA where the LTB mails a notice of hearing, it is deemed to have been given on the 5th day after mailing.
[16] Pursuant to s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the SPPA), where a notice of hearing has been given, s. 7 of the SPPA provides that a tribunal may proceed with a hearing in the absence of any party.
[17] Where an order has been made by the LTB that finally determines a party’s rights, the LTB may, pursuant to s. 21.2 of the SPPA and rule 26 of the LTB’s Rules of Procedure (the Rules), review such final order. Section 209(2) of the RTA specifically authorizes the LTB to review a decision if a party was not reasonably able to participate in the proceeding.
[18] In this case, it is argued that the Appellants were not reasonably able to participate in the eviction hearing because they never received notice of that hearing.
[19] In Zarei v. Afsharian, 2023 ONSC 5317, Corbett J., at para 3, succinctly dealt with a similar issue as follows:The primary issue raised by the appellants is a question of procedural fairness – they say that they did not receive notice and thus did not have an opportunity to participate in the hearing. A question of procedural fairness is reviewed in this court on a standard of correctness. However, in this case the issue of procedural fairness raised by the appellants turns solely on a finding of fact by the Board: the Board found that the appellants received notice of the hearing. Given that finding, which is not subject to appeal in this court, no issue of procedural fairness arises, and for this reason the appeal must be dismissed. [20] As the Board member did in Zarei, in the present case, Member Delaney made factual findings concerning the service/receipt of the Notice of Hearing. The RTA and the LTB Rules presume that once a notice is sent by the LTB it is deemed received 5 days later. Member Delaney did not accept the evidence of the Appellants and in doing so accepted the evidence of the Respondent that he had in fact “hand delivered the N12 Notice to the tenants personally on April 10, 2022 and they were both present at the time.”
[21] The factual findings of LTB Member Delaney as it relates to the issue of service or delivery of the Notice of Hearing are findings of fact and are not subject to appeal. As such, the first issue raised by the Appellants is dismissed. . Ramlal Hemchand v. Toronto Community Housing Corporation
In Ramlal Hemchand v. Toronto Community Housing Corporation (Div Court, 2023) the Divisional Court notes a novel LTB facility for parties "who do not have access to technology":[16] There is then the issue of whether it was unfair to proceed on the new date, without the tenant. The LTB has put forward a document indicating that the notice of hearing (for the new date) was mailed to the tenant along with information permitting the tenant to use the Public Access Terminals (“PATs”) that the LTB makes available to parties who do not have access to technology. . Zarei v. Afsharian
In Zarei v. Afsharian (Div Court, 2023) the Divisional Court notes LTB practice regarding service of documents and availability of hearing dates, here where the appellant landlord argued that they did not receive a notice of hearing:[7] We note that this was an “open file” with the LTB and that parties have an obligation to ensure that their email service address is accurate. The Board has a high volume of cases before it and cannot discharge its function to provide timely adjudication of residential tenancy disputes if parties can avoid and delay their hearings by their own failure to maintain their email addresses. Further, the status of Board matters – including hearing dates – may be viewed on the Board’s web site – so, if a party was unable to access their email, they could still follow the progress of their file by checking the web site. In this context, in the circumstances of this case, I see no error in the Board’s conclusion that notice was given to the landlords.
[8] Ms Afsharian [SS: co-landlord] also argued that there is no evidence that Mr Zarei [SS: co-landlord] opened the email on delivery of it, or that notice was given to her of the hearing. These arguments do not avail the appellants. The LTB is entitled to deem that a delivered email is proper service and that service on one residential landlord is service on all landlords. There was no evidence before the LTB that would render these inferences unavailable in the circumstances of this case.
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