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RTA - Time Extensions and Shortenings. Jedadiah Drummond v. Ridgeford Charitable Foundation
In Jedadiah Drummond v. Ridgeford Charitable Foundation (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal against a decision dismissing "his request to extend the time to review an eviction order".
Here the court considers the appellant's non-participation at an administrative hearing:[19] The Tenant does not argue that the Board made an error of law in the eviction order. The Tenant submits that he is appealing the eviction order due to a lack of procedural fairness, in that the hearing proceeded even though he was not present.
[20] On February 26, 2023, two days before the hearing of the application, the Tenant submits that he sent an email to the Board advising that he was not available on February 28, 2023. He did not provide any reason for not being available.
[21] The hearing proceeded on February 28, 2023, in accordance with s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which provides that where notice of a hearing has been given to a party in accordance with the SPPA, if a party does not attend, they may proceed in the absence of the party. The Board found that the Tenant had received proper notice of the hearing and they proceeded with the hearing in his absence.
[22] Further, the Landlord and Tenant Board’s Rules of Procedure (the “Rules”) govern all matters before the Board. Rule 21.1 provides that requests for rescheduling can only be made with the consent of all the parties, and not less than five days before the scheduled hearing date. The appellant did not meet this requirement.
[23] Rule 21.2 of the Rules states that notwithstanding the requirements of r. 21.1, a request to reschedule a hearing may be granted if the Board is satisfied that it was not reasonably possible for the party making the rescheduling request to comply with r. 21.1. Rule 21.8 provides relevant factors that the Board should consider in a request to reschedule a hearing, including reasons for the adjournment.
[24] As set out in Kalin v. College of Teachers (2005), 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.), at paras. 30-31 (adopted in Thomson v. Sisters of St. Joseph, 2010 ONSC 2337, at para. 13):[30] Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. Generally speaking, decisions made in the exercise of discretion are entitled to considerable deference, provided the discretion is exercised judicially and in accordance with principles of fairness and natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560 at para 18; Baker, supra, at para 53.
[31] A Tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party: Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON SC), 99 D.L.R. (3d) 165 (Ont. Div. Ct.). However, in exercising its discretion as to whether to grant an adjournment, a Tribunal is not permitted to act arbitrarily. The tribunal may take into account the public interest and the interest of the tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means: Re Flamboro Downs, supra; Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134 (1993), 1993 CanLII 9380 (ON SCDC), 103 D.L.R. (4th) 437 (Div. Ct.); Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 5198 (Div. Ct.) , aff’d [2003] O.J. No. 4233 (C.A.).
See also Wei, at para. 9. [25] However, the Tenant provided no reason to the Board for his request to adjourn the hearing, other than stating in an email that he wanted time to prepare. As set out in the Board’s reasons, “There was no record of a request to adjourn the hearing.” The Board followed its own procedure and exercised its discretion based on the information (or lack of information) before it. I see no reason to interfere with the Board’s exercise of its discretion. I do not find there was a lack of procedural fairness. . 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 canvassed RTA and LTB Rules regarding procedural time extensions and abridgements:[21] Section 190(1) of the RTA allows the Board to extend or shorten time requirements related to making an Application for a rent increase beyond the guidelines under section 126 of the Act, in accordance with the Landlord and Tenant Board Rules of Procedure.
[22] The Rules of Procedure govern all matters before the Board. Rule 21.1 requires that requests for rescheduling can only be made with the consent of all the parties, and not less than five days before the scheduled hearing date.
[23] Rule 21.2 of the Rules of Procedure states that notwithstanding the requirements of Rule 21.1, a request to reschedule a hearing may be granted if the Board is satisfied that it was not reasonably possible for the party making the rescheduling request to comply with Rule 21.1.
[24] Rule 16 of the Rules of Procedure addresses requests to extend or shorten time related to the hearing. Rule 16.4 indicates that the following factors may be considered in deciding whether to grant a request to extend time:(a) The length of the delay, and the reason for it;
(b) Any prejudice a party may experience;
(c) Whether any potential prejudice may be remedied;
(d) Whether the request is made in good faith; and
(e) Any other relevant factors. [25] Rule 16.6 of the Rules of Procedure states that if a request to extend time has already been denied, the party making the request may not make a second request to extend time unless there has been a significant change in circumstances.
[26] Rule 201(1)(a) of the RTA sets out the powers of the Board to “conduct any inquiry it considers necessary” before, during or after a hearing. Rule 201(2) further states:In making its determination, the Board may consider any relevant information obtained by the Board in addition to the evidence given at the hearing, provided that it first informs the parties of the additional information and gives them an opportunity to explain or refute it. . 6150 Yonge GP Inc. v Boxma
In 6150 Yonge GP Inc. v Boxma (Div Court, 2023) the Divisional Court applied a time limit extension [under RTA s.190(2)] to allow for a new cheque (after a bounced cheque earlier) written for a s.52(2)/55.1 ['Compensation under ss. 48.1, 49.1, 52, 54 or 55'] payment:[8] We are not persuaded that the Board committed any error of law in this matter. With respect to the extension of time to compensate Ms. Boxma, s. 190(2) of the Act authorizes the Board to extend time requirements with respect to any matter in its proceedings, other than the prescribed time requirements. “Prescribed” in this context means prescribed by Regulation. The time stipulated in s. 55.1 is not a “prescribed time requirement” under s. 56 of the General regulation under the Act, O. Reg. 516/06s.
[9] The Board member exercised his discretion to extend the time requirement in this case taking into account that the landlord clearly attempted to provide compensation prior to the termination date but Ms. Boxma delayed several months in cashing the cheque. He also took into account that Ms. Boxma was still in possession of the rental unit at the time of the hearing. It was open to the Board member and entirely understandable that he extended the time requirements in this case in the exercise of his discretion. . Jones v. Matthews
In Jones v. Matthews (Div Ct, 2012) considered (and declined to resolve) the interesting issue of what, if any, time extension law applied to a motion to extend time to commence an RTA s.210 appeal (which establishes a statutory time limit). Sadly avoiding this issue, the court considered whether the standard RCP R3.02 ['Extension or Abridgment'] test (which only applies to time limits established under the Rules of Civil Procedure) applied on a sort-of 'let's assume that it does' basis, but ultimately denied the request - so the issue didn't have to be resolved.
It's an interesting issue. The RTA has s.190 provisions which allow for the Board to extend or shorten time, which reads in part:190(1) The Board may extend or shorten the time requirements related to making an application under section 126, subsection 159 (2) or section 226 in accordance with the Rules.
190(2) The Board may extend or shorten the time requirements with respect to any matter in its proceedings, other than the prescribed time requirements, in accordance with the Rules. There is no corresponding mention of the RTA s.210 time limit prescribed in the General Reg 516/06, s.56, so that may create the argument that the LTB has jurisdiction to extend time under RTA 190(2) - after all the LTB has "exclusive jurisdiction" [RTA 168(2)]: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. Alas, the court concluded on this point:[9] Section 190 of the RTA gives the Board permission to extend time requirements in proceedings before it. Is the failure to confer a right to extend time on the Divisional Court in the RTA an indication no such power exists? The answer to that question should await another day.[1]
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