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RTA - Reviews (Reconsiderations) (2). Ainsley v. Proulx
In Ainsley v. Proulx (Div Court, 2023) the Divisional Court cited law stating the administrative interlocutory orders are not appealable - here in the context of an RTA reconsideration order, sending the matter back for a new LTB hearing:[1] The tenant seeks to appeal the interim review order of the Landlord and Tenant Board (“LTB”) dated September 8, 2023 (the “Review Decision”), under which the LTB granted the landlord’s request to review an LTB decision between these parties dated May 26, 2023.
[2] The LTB had dismissed the landlord’s application to terminate the tenancy in order to demolish the unit. However, as set out in the Review Decision, the LTB was persuaded that a serious error had been made and sent the landlord’s application back for a new LTB hearing.
[3] With respect to the tenant’s proposed appeal of the Review Decision, the Registrar was directed to send out a notice under r. 2.1 of the Rules of Civil Procedure because the Review Decision is an interlocutory order. As a result, there is no right of appeal (see this Court’s decision in Delic v. Enrietti-Zoppo, 2022 ONSC 1627). . Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court considered (and allowed) an important appeal by a tenant of an LTB reconsideration ruling that "found (him) to be an unauthorized occupant", and that reversed the original LTB order. These quotes dwell on what can be considered as the 'standard of review' for granting a reconsideration, that set out in the LTB Rules as 'serious error' and the two-step nature of the reconsideration procedure (ie. the initial request and then, if the request is granted, the reconsideration itself). The quotes reveal generally unacknowledged complexities of the LTB reconsideration process, particularly here where both the landlord and the tenant requested reconsiderations:[2] The Appellant argues that the review of the Initial Decision should never have occurred. He submits that the review amounted to an unfair re-hearing of the issues decided in the Initial Decision in breach of the LTB’s duty of procedural fairness. ...
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[4] For the reasons that follow, the appeal is granted. I find that the manner in which the review hearing was conducted was not in accordance with the LTB’s duty of procedural fairness.
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The Review Decision
[12] The review hearing was conducted by Member Cho (the “Member”) over two days on July 19, 2022, and November 23, 2022. The review process will be further detailed in these reasons. On review, the Member found that the Appellant failed to demonstrate that the previous adjudicator made a serious error in finding that he was an unauthorized occupant and not a tenant, as defined under the RTA. Mr. Stenka’s request for review was denied.
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Did the Member Breach the Duty of Procedural Fairness by Reviewing the Initial Decision?
[16] The Appellant submits that the Member breached the duty of procedural fairness and exceeded his jurisdiction by reviewing the Initial Decision without identifying a “serious error” in the decision, contrary to the LTB’s Rules of Procedure (the “LTB Rules”). The Appellant’s position is that the Initial Decision was based on a reasonable exercise of discretion by the first Member, and there was no basis on which to review it. The Appellant submits that the Member conducted the review hearing in a confusing and irregular manner by proceeding with a de novo hearing before first determining whether the threshold of a serious error had been met, resulting in procedural unfairness.
[17] In my view, the manner in which the hearing was conducted was not in accordance with the LTB Rules, resulting in unfairness to the Appellant.
[18] The issue of whether a proceeding was procedurally fair is to be decided in accordance with the five factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (SCC), at paras. 22-23, namely: “(1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself”.
[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.
[20] The LTB’s authority to review a decision is found in s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) and Rule 26 of the LTB Rules. Rule 26.9 states that the LTB “will conduct a preliminary review of the request and may exercise its discretion to” among other things, “dismiss the request or direct a review hearing on some or all of the issues raised.” Rule 26.15 states that if the request to review is granted, the reviewing member will identify the issues to be re-heard. Under Rule 26.16, the re-hearing begins immediately after the request to review is granted. The parties are required to be prepared to proceed with the re-hearing.
[21] In addition, the LTB’s Interpretation Guideline 8 (the “Guideline”), regarding the review of an order, states that the LTB will only exercise its discretion to grant a review when it is satisfied that the order “contains a serious error, a serious error occurred in the proceeding, or the requestor was not reasonably able to participate in the proceeding.” The Guideline further states that when the request for review is not dismissed, the LTB will issue a notice of hearing to all parties. The LTB will determine the scope of the review hearing and depending on the issues, the manner in which it will be conducted.
[22] The LTB Rules and the Guideline thus envisage a two-step process that involves: (i) a determination as to whether to grant review because the order may contain a serious error or because of the inability of a party to participate in the proceeding; and (ii) the review hearing itself.
[23] As noted above, in the Review Decision, the Member found that the Landlord had met the “serious error” threshold for review of the Initial Decision, but that the Appellant had not. The Member thus granted the Landlord’s review request and dismissed the Appellant’s. The Member found that it was unfair to deny the Landlord’s application and substituted the Initial Decision with an eviction order.
[24] However, the process that the Member adopted at the review hearing was far less clear. At the outset of the review hearing, the Member stated that he would begin by hearing the “moving party or the applicant – that is the party that has brought the motion or the application – first.” It is unclear how this applied to the review process, where both parties had made requests for review. The Member then stated that he was “assigned to attend to the tenant’s April 7, 2022 review request.” However, based on the LTB’s interim order dated May 27, 2022 (the “Interim Order”), both the Landlord and the Appellant’s requests for review were to be heard together.
[25] Based on my review of the hearing transcript, at no point did the Member adopt or explain the two-step review process identified in the LTB Rules. To the contrary, the Member stated that he was conducting a de novo hearing. The Member began to hear evidence before any submissions or determination on the threshold question of whether the Initial Decision “may contain a serious error”. Some of the confusion may have arisen because of the Interim Order, which granted both review requests on a “preliminary basis” but also stated that:The Board shall schedule a hearing to consider the Landlords’ requests for review and the Tenant’s request for review together. The parties are directed to attend the hearing and be prepared to proceed on the merits of the original application should the review request(s) be granted. [26] The Interim Order thus required the Member to determine if the review requests should proceed, which necessitated that the Member engage in an analysis of the threshold question of whether there was a serious error in the Initial Decision.
[27] In my view, in the circumstances of this case, the failure to address the threshold question before proceeding with a de novo hearing was problematic from a procedural fairness perspective. The conduct of a de novo hearing on all the issues before a finding of a serious error raises the risk of a perception that the Member reasoned backward. That is, that the Member came to his own conclusion on the evidence adduced before him, and then found a serious error to justify reviewing the Initial Decision. The question of whether the Initial Decision contained a serious error ought to have been determined based on the record before the previous adjudicator.
[28] In this case, the serious error that the Member found was that the Initial Decision did not adequately consider the Landlord’s circumstances, including a contract to renovate the unit. This finding, however, was not based on the evidence before the first adjudicator but was based on evidence that the Member heard during the de novo hearing before him. The only prejudice to the Landlord identified in the Initial Decision was the Landlord’s inability to have vacant possession of the unit, thus allowing them to enter into an agreement with a new tenant. This may in fact have been the only evidence before the first adjudicator. The Initial Decision contains no mention of any contracts for renovation of the unit. If the Landlord had not adduced evidence of contracts for renovation at the first hearing, then there was no failure on the part of the first Member in taking them into consideration when considering the Landlord’s circumstances. In my view, without a finding of a serious error, it was not appropriate to conduct a de novo hearing in the circumstances, where the serious error alleged was in the exercise of the previous adjudicator’s discretion.
[29] Similarly, while the Review Decision states that there was no serious error in the finding in the Initial Decision that Mr. Stenka was an unauthorized occupant, the findings and reasoning in the Review Decision reflect that the Member in fact reheard the issue based on the evidence before him. In respect of that finding, however, he came to the same conclusion as the first Member.
[30] I pause to note that on review, the Member was faced with an especially difficult task because there was no transcript of the first hearing. It would have been challenging, if not impossible, to determine what evidence was before the first Member. However, this makes it more difficult to understand on what basis the Member found a serious error in the Initial Decision. The Member found that the Initial Decision “does not address the circumstances behind the Tenant’s act of vacating the rental unit, or of the Landlords’ contract to renovate the rental unit” without making any reference to the evidence that was before the first Member.
[31] The process adopted by the Member also undermines the principle of finality. As stated in the Guideline, “In making a decision to review, the LTB considers the public interest in preserving the finality of its decisions together with the opportunity correct a serious error without the need to appeal or seek judicial review.” Decisions of the LTB ought not to be disturbed unless there is a specific finding of a serious error. The guideline specifically states that “[o]rders granting relief from eviction (RTA s. 83(1)) or awarding specific remedies involve an exercise of the original hearing Member’s discretion and are entitled to deference. The LTB will not exercise its discretion to review these types of decisions where the result is within the range of reasonable, acceptable outcomes.”
[32] The Member’s approach to the issues on the review hearing was also confusing in other respects. He determined that the “quickest way” to deal with the matter was to deal with the Appellant’s review request first and then proceed to the issue of whether the first Member erred in his application of s. 83 of the RTA. At one point, the Member stated that the outcome of the first issue could negate the need to deal with the second:This is a hearing as far I’m concerned de novo. Effectively we are getting right into – the review request may very well resolve the A2 application.
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What we have done over the last two hearing days is essentially just hear the application de novo, albeit from a reverse perspective with Mr. Stenka giving his evidence first – purpose of the hearing was to allow the parties to introduce evidence and lead submissions to determine whether in fact Mr. Stenka is an occupant or a tenant. Everything will turn on those determinations. [33] However, because relief from eviction under s. 83 did not necessarily require a finding that Mr. Stenka was a tenant, that issue would have to have been addressed, irrespective of whether Mr. Stenka was found to be a tenant. This confusion resurfaced later in the hearing when the Member refused to allow cross-examination on the issue of a contract to renovate the rental unit, finding that the question was not relevant to the issue of whether or not the Appellant was a tenant.
[34] While not directly relevant to the appeal before this court, the confusing nature of the hearing is further reflected in the Member’s statement that he made an error when he instructed that the LTB hold a board-initiated review which related to an interim order, as opposed to the Initial Decision. He then asked if the parties would consent to a finding that he erred “in April of 2022”, to which they consented. It is unclear from the transcript whether the parties were consenting to a finding that the Member erred in ordering a board-initiated review of an interim decision or a finding that the Member erred in ordering a board-initiated review. The ambiguity was worsened when the Member later stated, “So on consent the board initiated review is granted.” If the parties consented to a board-initiated review, then the issue of whether the Initial Decision raised a serious error was not before him and ought not to have been addressed in the Review Decision.
[35] I recognize that the LTB has broad discretion to manage its process to ensure the most expeditious and fair determination of the issues in a proceeding. Section 2 of the SPPA states that the Act and any tribunal rules are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” Rule 1.4 of the LTB Rules provides that the LTB will decide how a matter will proceed and may make procedural directions or orders at any time and may impose any conditions that are appropriate and fair. Under Rule 1.6, the LTB may waive or vary any provision in the Rules, and may direct the order in which issues, including issues the parties consider to be preliminary, will be considered and determined.
[36] In this case, however, the transcript does not reflect that the Member made a specific procedural direction or otherwise exercised his discretion to direct the order in which the issues would be determined. In this case, proceeding as provided under the LTB Rules would have been fairer and more expeditious, not to mention less confusing for the parties. In my view, based on the Baker factors, including the nature of the decision and its importance to the parties, as well as the statutory scheme, and the parties’ legitimate expectations based on the procedure adopted by the LTB, procedural fairness necessitated a determination of the threshold issue of a serious error. If the Member was going to adopt a different process, which might have been necessary because of the lack of a transcript of the previous hearing, procedural fairness required an explanation of that process so that the parties could fully and properly participate. Given that the process adopted by the Member was confusing and unclear to me on my review of the transcript, I find it likely that it was confusing to the parties as well, hindering their ability to properly participate. . Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court addressed the record (here, a transcript) required to consider an RTA reconsideration:[30] I pause to note that on review, the Member was faced with an especially difficult task because there was no transcript of the first hearing. It would have been challenging, if not impossible, to determine what evidence was before the first Member. However, this makes it more difficult to understand on what basis the Member found a serious error in the Initial Decision. The Member found that the Initial Decision “does not address the circumstances behind the Tenant’s act of vacating the rental unit, or of the Landlords’ contract to renovate the rental unit” without making any reference to the evidence that was before the first Member.
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