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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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SPPA - Disclosure

. Jocko v Criminal Injuries Compensation Board

In the case of Jocko v Criminal Injuries Compensation Board (Ont Div Ct, 2009) the court held that s.5.4 did not authorize the Criminal Injuries Compensation Board to order pre-hearing documentary disclosure from non-parties (in that case police officers), be they witnesses or not. The Board's only authority to compel documentation from non-parties lay in it's general authority to issue summons to witnesses [SPPA s.12], which could specify the documents that non-party witnesses should bring with them to the hearing.

. Faruk v. The Landlord and Tenant Board

In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.

In this quote the court considers the SPPA s.5.4's disclosure provisions, where the LTB has recently elected to introduce disclosure duties by passing appropriate rules:
[6] In its determinations made as a result of the case management hearing, the Landlord and Tenant Board considered requests made by the tenants that the landlord be ordered to produce emails which contained the words “union” or “group of tenants”, statements of its profits from the residential complex for the current and immediately previous year and copies of payment plans other tenants had entered into with the landlord, as well as the outcomes of those agreements. Had those agreements resulted in missed payments and ended with eviction? As with the issue of which witnesses would be permitted to testify, the Landlord and Tenant Board was careful in the analysis it undertook. With respect to the emails, it reviewed its authority to make such an order under s. 5.4 of the Statutory Powers Procedure:
(1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure.
[7] The Board reviewed a case that it felt informed the situation it confronted (Ontario (Human Rights Commission) v. Dofasco [2001 CanLII 2554 (ON CA)] The Board ordered a word search of the emails be undertaken with an eye to producing emails that were relevant to the issues at hand.[11]

[8] Since the landlord was not relying on financial hardship as part of its rationale for seeking the eviction orders, the Landlord and Tenant Board refused to order the production of any financial statements. Similarly, the Board refused to order production of any of the payment plans that may have been entered into. The fact that a payment was missed or the tenant vacated the premises would not assist in understanding why, and therefore, would not further an argument that the landlord did not meaningfully or reasonably negotiate.[12]


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