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Appeal-Judicial Review - Fairness - Jurisdictional Limits. Zarei v. Afsharian
In Zarei v. Afsharian (Div Court, 2023) the Divisional Court considered (and dismissed) an RTA landlord's appeal, here where the court dismissed a procedural fairness argument solely on the grounds that it involved a pure fact issue. The court reasoned that under RTA s.210 the Divisional Court only had appellate jurisdiction over 'questions of law' - even though it expressly acknowledged that the SOR for fairness was 'correctness'.
The case raises what I think are novel issues as - prior to it - the court did not defer to the tribunal below at all, taking the view that procedural fairness issues are themselves legal issues, not being entitled to any deference on an appeal [Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022), para 9; Lengyel v. The Licence Appeal Tribunal et al. (Div Court, 2023), para 16; Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021), para 18]:[2] An appeal to this court from a decision of the LTB is available but only in respect to questions of law: Residential Tenancies Act, 2006, SO 2006, c. 17, s.210. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Issues of procedural fairness – where they are matters of legal standards – are likewise decided on a standard of correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.
[3] The primary issue raised by the appellants is a question of procedural fairness – they say that they did not receive notice and thus did not have an opportunity to participate in the hearing. A question of procedural fairness is reviewed in this court on a standard of correctness. However, in this case the issue of procedural fairness raised by the appellants turns solely on a finding of fact by the Board: the Board found that the appellants received notice of the hearing. Given that finding, which is not subject to appeal in this court, no issue of procedural fairness arises, and for this reason the appeal must be dismissed.
[4] Procedural fairness, and the LTB’s own practices and procedures, require that parties be given notice of a hearing. In this instance, notice was sent to Mr Zarei’s email address. In the request for reconsideration, the appellants argued that Mr Zarei did not receive the email until after the hearing had taken place. In its reconsideration decision, the LTB rejected Mr Zarei’s argument and found that he did receive the notice in a timely manner. This was a finding of fact, available to the LTB on the record before it on reconsideration, and this court has no jurisdiction to interfere with it.
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