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Administrative - Non-Participation. Gusain v Arnold
In Gusain v Arnold (Div Court, 2023) the Divisional Court considered non-attendence at a tribunal proceeding, here in an LTB context:[45] The Board has the authority to determine its own procedure and practices and to establish rules and make orders for that purpose, including rules relating to the review of its own decisions: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 21.2, 25.0.1 and 25.1. The Board’s power to review its own decision or order may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding: RTA, s. 209(1).
[46] The Board’s procedures relating to requests to review a Board decision are set out in Rule 26 of the Board’s Rules of Procedure, with additional guidance being provided by the Board’s Interpretation Guideline 8.
[47] As described in Interpretation Guideline 8, the Board’s review process has two stages. The first stage is a preliminary review, which may result in the request being dismissed without a hearing or being sent to the second stage, a review hearing. At the preliminary stage, the reviewing adjudicator decides if the order may contain a serious error or whether the requestor may not have been reasonably able to participate. In either case, the Board may direct a review hearing on some or all the issues raised in the review request and may make interim orders: see rule 26.9(d).
[48] Interpretation Guideline 8 provides specific guidance for determining whether a party was not reasonably able to participate in the proceeding, based on previous Board decisions. Among other things, it states that the Board will refuse review requests where the party’s failure to attend was the result of negligence or it finds no reasonable explanation for the failure to attend.
[49] In this case, Board Member Lang conducted a preliminary review of appellants’ request. As set out in her interim order dated June 3, 2021, she directed the request to a review hearing to determine whether the appellants were reasonably able to participate in the proceedings.
[50] As indicated previously, the first review hearing proceeded virtually before Board Member Macchione, with the appellant Mr. Gusain and the respondents in attendance. Mr. Gusain, who was represented by a paralegal, testified at the hearing. In the review decision, the adjudicator denied the review request. She did not accept Mr. Gusain’s explanation that he was confused by the two notices of hearing for different dates, noting that he did not contact the Board to obtain clarification and provided no reasonable explanation for his negligence. The adjudicator found that the appellants were aware of the hearing and had adequate opportunity to participate in the proceedings.
[51] In support of her decision, the adjudicator relied on this court’s decision in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541(Div. Ct.). In that case, the landlord requested that the Board review its decision granting a rent abatement to the tenant after a hearing at which the landlord failed to appear. The Board refused the review request, finding that the landlord’s failure to attend the hearing was due to a lack of diligence on the part of the landlord’s office staff. On appeal, the landlord argued that the Board erred in law since there was no evidentiary basis for its finding of lack of diligence. The Divisional Court disagreed and dismissed the appeal. At para. 8, the court stated as follows:Lack of diligence in dealing with court proceedings is a reason for refusing to set aside an order where a party has failed to appear. In other words, it was not an error in law for the Review Board to find that lack of diligence constituted a reason not to grant the landlord a rehearing. If parties are not diligent in dealing with legal proceedings then they cannot demand that a Tribunal waste its resources by rehearing matters a second time. To allow this would undermine the ability of the administration of justice to deliver timely, cost-effective and final orders. . Creglia v. Mathews
In Creglia v. Mathews (Div Court, 2023) the Divisional Court considered a straightforward SPPA [7(1)] issue about service and subsequent non-participation:[22] Service is provided for by virtue of s. 191 of the RTA. The Board did not err in finding that Mr. Creglia was deemed to have been served by May 8, 2022. This meant that the Board had jurisdiction to proceed in Mr. Creglia’s absence on June 6, 2022, by virtue of the Statutory Powers Procedure Act, R.S.O. 1990, c S.22, as amended, s. 7(1).
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