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Fairness - Limiting Hearing Time. Espenes v. Vadhvana
In Espenes v. Vadhvana (Div Ct, 2026) the Divisional Court dismissed the tenant's RTA appeal, this brought against an LTB "decision denying consolidation" and landlord-successful L2 [SS: 'personal possession' (N12)] and L1 [SS: 'non-payment of rent'] orders (the tenant sought consolidation of these and a tenant's right application as well). At the LTB, the tenant moved to consolidate all three of these LTB matters but was refused, because (as quoted in the court's reasons) the ruling LTB member felt that "the issues on the applications were distinct and not sufficiently connected to raise a risk of inconsistent findings" and because "the time allotted for each application was not sufficient to allow a full hearing of all three matters". Both of the landlord's applications were granted before the tenant's application was heard, and the tenant appealed both.
When supporting the denial of the consolidation request the court reasoned:[6] With respect to the consolidation issue, deciding whether applications should be heard together is a procedural matter within the LTB’s jurisdiction and not reviewable absent an error of law: Sterling v. Guillaume, 2021 ONSC 1160 (Div. Ct.), at para. 35.
[7] The fact that the tenant’s application alleging harassment and other misconduct by the landlord would not be heard at the same time as the L2 and L1 applications did not preclude the appellant from raising these issues if they were relevant on the other applications. During the L2 application, the tenant did in fact take the position that the landlord had no good faith intention to occupy the premises and that he was only bringing the application because of the dispute respecting the third parties occupying the basement. She gave the following evidence during the hearing:Just that it’s in bad faith, and then when I told him that under no condition would I allow him to re-rent out the basement until he fixes, remedies the issue to make it a legal unit, he then threatened to sue me, and that he had a lawyer that was going to come after me, and at this time I have never met his lawyer, and I filed my harassment with the LTB, and it was after that time that he started this retaliatory campaign to have me evicted, because he’s not, because I disagreed, because I wouldn’t allow him to do it again. The appellant could also have raised issues of alleged retaliation at the L1 hearing, provided that they were relevant, but did not attend that hearing.
[8] The decision not to consolidate the three applications does not reflect any error, nor was it procedurally unfair. The appeal against the consolidation decision is accordingly dismissed.
....
[12] .... The LTB hears a large number of cases and is entitled to make decisions that have the effect of streamlining proceedings and ensuring that tribunal time is not wasted: MacMillan v. Martin, 2025 ONSC 561 (Div. Ct.), at para. 46; Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 39-40. .... . Jones-Whyte v. Intact Insurance Company
In Jones-Whyte v. Intact Insurance Company (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a joint appeal-JR, this brought against a LAT finding "that the appellant had failed to establish catastrophic impairment under Criterion 8 of the Statutory Accident Benefits Schedule (SABS)".
The court considered 'procrustes' procedural fairness issues, here time limits on hearing and witness examination:[5] Beginning with procedural fairness, there is no issue that the LAT has the authority to control its process and that its procedural choices are relevant to the determination of whether the process was fair: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. s. 25.0.1; Licence Appeal Tribunal Rules, r. 3.2; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 27.
[6] As this Court has said in another decision regarding the LAT: “Tribunals are owed considerable deference on their procedural decisions. This is because administrative tribunals have the experience and expertise to balance handling the need to ensure fair participation for all parties with the prompt determination of proceedings on their merits”: Jendrika v. Intact Insurance Company, 2025 ONSC 652 (Div. Ct.), at paras. 26-27.
[7] In this matter, there was a LAT case conference in May 2024 regarding the hearing. The issues were identified, witness lists were discussed, and a schedule was set for the exchange of documents and other materials. A five-day hearing was set for the hearing based on that information. As noted in the Case Conference report and order, the parties were encouraged to agree on a timetable for an efficient hearing, while noting that the timetable for testimony was subject to the hearing adjudicator’s discretion.
[8] At the outset of the hearing in October 2024, most of the issues were withdrawn and the appellant’s counsel indicated that he would be calling fewer witnesses because some of them were redundant. The parties put forward an agreed timetable for the remaining witnesses.
[9] After discussion, the Adjudicator reduced the time requested for the appellant’s examination in chief from 5 hours to 1½ hours, with 1½ hours for cross-examination and ¼ hour for redirect examination. The Adjudicator also set the time for the appellant’s sister’s evidence (totaling 2¼ hours) and set time limits for the expert witnesses for both sides. During the hearing, the Adjudicator also increased the time allocated to experts for their testimony.
[10] The transcript shows that when setting the time limits for the witnesses at the outset of the hearing, the Adjudicator had regard for the case conference directions, the length of time set for the hearing, the reduction of the matters at issue, the nature of the remaining issues, the reduction in the witness list, her view of the length of time that was needed for each witness, and the submissions of counsel for the parties. For the experts, the Adjudicator also took into account the agreement that the lengthy expert reports were being admitted as evidence. The Adjudicator was entitled to apply her expertise regarding what time should be needed and did so.
[11] The Adjudicator did apply the time limits very precisely as the examinations progressed, but the hearing transcript of the appellants’ evidence does not show an unfairness in doing so. Further, the Adjudicator’s extension of time for the experts shows that she was reflecting on the time limits as the evidence unfolded. This case is unlike Plante v. Economical Insurance Company, 2024 ONSC 7171 (Div. Ct.), where the hearing was drastically reduced from 20 days to 5 without any change in the nature of the case, and the applicant in that case was unable to call several of her witnesses. In contrast, the Adjudicator here heard from everyone and extended the time for certain witnesses. Further, the initial hearing length of five days was set when there were several more issues and witnesses. We conclude that the time limits were not procedurally unfair.
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