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Appeal-Judicial Review - Fairness - Baker Factors - Statutory Scheme

. Abara v. Hall and Lee

In Abara v. Hall and Lee (Div Court, 2022) the Divisional Court considers the 'statutory scheme' Baker factor for administrative fairness, here finding that the LTB had truncated a normally 'high-volume tribunal' hearing to the prejudice of the LL:

[30] In determining whether the standards of procedural fairness had been met, Baker v. Canada (Minister of Citizenship & Immigration).5F[6] enunciated a non-exhaustive list of five factors:

(1) the nature of the decision being made and the process followed in making it;

(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(3) the importance of the decision to the individual or the individuals affected;

(4) the legitimate expectations of the person challenging the decision; and

(5) the choices of procedure made by the agency itself.

[31] As set out above, the statutory scheme is relevant. Section 183 of the RTA requires the LTB to utilize “the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.” The LTB is a high-volume tribunal with limited time allocation for hearings.

[32] In this case, even though these applications are normally done in writing, the LTB directed an oral hearing lasting 15 minutes since the positions of the tenants differed.

[33] The transcript of the hearing shows the Member did not provide the appellant with the opportunity to put forth his full argument specifically dealing with the date of termination, which would have an impact on the request for compensation even though that needed to be addressed in a different process. The hearing lasted no more than 3-5 minutes. The appellant was interrupted numerous times. Without permitting any submissions from the appellant on termination date, the Member determined that the termination date was September 15, 2021. Although no compensation was available in that specific application, the date may have an impact on the entitlement to compensation through other processes.

[34] On review, Member Mulima recognized there was a concern with regard to the issue of the termination date and the appellant’s request for compensation. At paragraph 8, Member Mulima stated:

The Landlord argues that the termination date should have been determined to be July 31, 2021, therefore granting him an “overholding penalty” for rent after that date to the date the Tenants vacated the rental unit. As set out below, the Residential Tenancies Act, 2006 (‘Act’) does not permit such a penalty and as a result, there is no prejudice to the Landlord, and no material impact on the outcome of the case, in the Member determining the tenancy terminated on the date the Tenants granted vacant possession of the rental unit to the Landlord.

[35] The difficulty I have with this conclusion by Member Mulima is that it does not recognize that there could be other consequences to the date of termination. The transcript is clear that the appellant was not given any opportunity to make any submissions on the date of termination. Though there was written material put forth at the hearing, the Member determined that there was no jurisdiction for the compensation claim and ended the hearing on that issue, yet still made a finding about the date of termination.

[36] The compensation claims of the appellant encompassed various claims including overholding from July 2021 and costs for the tenant not returning the key. The characterization by Member Mulima that the claim was for an “overholding penalty” highlights that there was no opportunity for submissions on the substance of the appellant’s claim and no hearing on the date of termination. The conclusion that the appellant did not suffer “prejudice” is not borne out by the record.

[37] The appellant, in my view, was entitled to a fair opportunity to make submissions about the date of termination and was not provided that opportunity. I do recognize that the LTB is a high-volume tribunal. But for the LTB to conclude on a significant finding—the termination date of the lease—without providing the appellant with the opportunity to address that issue, was, in the circumstances of this case, a breach of procedural fairness.