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Residential Landlord and Tenant Law (Ontario)
(15 August 2015)

Chapter 15 - Reviews and Court Appeals

    Note Re Amending Orders
  1. Overview
  2. Reviews
    (a) Source Law
    . Overview
    . SPPA
    . RTA
    . Board Rules
    (b) WHAT Can be Reviewed?
    (c) WHEN: Limitations
    (d) WHY: Grounds of Review
    (e) WHO: Standing
    (f) HOW: Procedures for a Review
  3. Court Appeals
    (a) Overview
    (b) WHAT can be Appealed?
    (c) WHEN: Limitations
    (d) WHY: Grounds of Appeal
    (e) WHO: Standing
    (f) HOW: Appeal Procedures
    (g) Appeal to Court of Appeal
  4. When To Choose a Review, an Appeal - or Both?
  5. Judicial Reviews
  6. Reasons, Board File and Record of Proceedings
    (a) Request Board Reasons
    (b) Board File
    (c) Recordings and Transcripts of Evidence

Note Re Amending Orders

The procedures discussed in this chapter are distinct from those available to "amend" Orders to correct minor and uncontentious clerical or arithmetic errors. For these "amendment" procedures, see Ch.14, s.6(f): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Amending Orders".

1. Overview

After receiving an unsatisfactory Notice of Decision, a party's mind may immediately turn to thoughts of "an appeal". While a court appeal is available in some circumstances, the RTA - like most modern administrative tribunal procedural regimes these days - also has a "review" procedure which normally should be considered and explored fully along with any consideration of court appeal proceedings.

Readers are cautioned that the court appeal deadline is not delayed for the time that it takes to resolve a review. As will be seen below, the Board's "Notice of Decision - which will contain (variously) the Board's Decision, Order/s (which includes Orders of "dismissal") - and Reasons (if requested or otherwise required) - is considered "final and binding" for appeal purposes as well as for Review purposes [Act s.209(1)].

Unfortunately - from the point of view of procedural certainty - the choice of whether to review or appeal (or to do both at the same time), is not always immediately clear. Parties may find themselves in the situation of having to both review and appeal the Board's ruling in order to fully protect their rights [this contrasts unfavourably with the similar situation before the Social Benefits Tribunal where the running of time for the court appeal deadline is delayed until any "reconsideration" (the equivalent of a review) is resolved].

Making these sometimes complex choices properly requires a comparison of the two procedures in light of five issues (each of which is discussed in turn in s.2: "Reviews" and s.3: "Appeals", below). These issues [which roughly correspond to the questions: what, when, why, who and how] are:
  • WHAT Can I Review/Appeal? (Reasons, Decisions or Orders)

    This issue follows on from the discussion in s.14, s.6: "Hearings, Orders and Enforcement: Decisions, Reasons and Orders" and involves the question of "what exactly is it that a party can ask to be reviewed/appealed"'? Is it the "Decision", the "Reasons" or the "Orders"? - or some combination of them?

    In most cases this problem will not arise, because favourable Decisions are normally supported by favourable Reasons, which in turn result in favourable Orders - so reviewing or appealing any one of them necessarily entails reviewing or appealing all of them. However, take the example where a landlord receives a favourable "Decision" (eg. that the tenant 'substantially interfered with the reasonable enjoyment of the premises') but no favourable "Order" for termination and eviction because the Board further decided to exercise it's "relief from forfeiture" jurisdiction in favour of the tenant [under Act s.83] to allow them to stay in possession.

    As will be seen below, the landlord can seek Review or Appeal of the "Order" of dismissal, but the tenant - still unhappy with the Decision against them on the main "substantial interference" issue - cannot themselves appeal because they received a "favourable" Order. While the tenant may be able to argue the Decision against made against them in the course of the landlord's appeal, otherwise the tenant may have to "live with" those negative findings, and even have them raised against them in a later application, without having the oppourtunity to review or appeal them.

    In short, you can Review/Appeal Orders - but not Decisions or Reasons.

  • WHEN Can I Review/Appeal? (Limitation periods)

    Review and appeal "deadlines" are invariably triggered when a party "receives" a "final" (as opposed to an interim) Order. This involves issues of what constitutes being "final" and of the filing deadlines for both reviews and appeals.

  • WHY is the Original Order Wrong? (Grounds)

    The choice between a Review and an Appeal may turn on the grounds on which a party alleges the Board made an error. These can include errors of jurisdiction, fact-finding, law, and findings of "mixed law and fact".

  • WHO Can Review/Appeal? (Standing)

    Usually - but not always - the right to review or appeal is restricted to parties to the original application.

  • HOW do I Review/Appeal?

    This involves the procedural aspects of both processes.

    As already stated above - the two procedures of review and appeal do not have a happy co-existence under the RTA regime. A party wishing to challenge a Board Decision is faced with an uncertain choice between review or appeal, or even the necessity to proceed with both simultaneously to ensure that their rights are fully preserved.

    Also of concern in any situation where a Review, appeal or similar procedure is being contemplated is the issue of "staying" (suspending) the original Order while the Review is being resolved [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement: Stays"]. Without the issuance (and filing with the sheriff's office) of a 'stay' then the original Order is still enforceable.

2. Reviews

(a) Source Law

. Overview

Several sources of law must be considered when exploring the Board's Review jurisdiction, including: the SPPA, the RTA, the Board's Rules and (discussed below) case law. The most detailed of these is the Board Rule on the issue, which is linked below along with a Commentary.

. Statutory Powers Procedures Act (SPPA)

The primary source of the Board's Review jurisdiction is the SPPA, which provides that the Board may, "if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order" [SPPA s.21.2(1)]. The SPPA requires that reviews must "take place within a reasonable time after the decision or order is made". [SPPA s.21.2(2)].

Further, "(i)n the event of a conflict between this section and any other Act, the other Act prevails" - that is, any conflicting RTA provisions are paramount over the SPPA provisions [SPPA s.21.2(3)].

Taken by themselves these provisions seem clear enough: the Board has jurisdiction to make Rules to: review both Decisions and Orders, and confirm or alter them as justice requires.

. Residential Tenancies Act

The RTA only slightly supplements this SPPA authority by adding a specific (and uncontroversial) ground justifying review: "the Board's power to review a decision or order under that section [SPPA s.21.2] may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding" [Act s.209(2)]. This ground supplements any other grounds of Review that may be set out in the Board Rules. So basically, if you miss your hearing with good reason, can argue that fact on a Review to seek a new hearing.

. Board Rules

The Board has exercised their SPPA authority in creating Rule 29, linked here:

Rule 29: Review of Orders

Rule 29 sets out the bulk of the law that applies to Reviews. While it will be considered in more detail below, it can be argued that this Rule is responsible for the awkward situation faced by a party after a negative ruling. By virtue of s.209(1), "finality" of the ruling (which triggers court appeal rights) could have been delayed until the Review process was completed:
RTA 209(1)
Except where this Act provides otherwise, and subject to section 21.2 of the Statutory Powers Procedure Act, [which authorizes the Board to make rules governing Reviews], an order of the Board is final and binding.
(b) WHAT Can be Reviewed?

While in the vast majority of cases a Review will be sought of the "Order" issued, there are some complexities and variations, discussed following. Some readers may want to avoid these complexities as they will rarely apply in practice.

As noted above, the Board may make Rules allowing it to review its 'Decisions or Orders' [SPPA s.21.2(1)]. Further, RTA s.209(2) re-affirms that the Board's review jurisdiction extends to both "decisions and orders". Both of these provisions are consistent with conventional civil litigation doctrine that a party 'cannot appeal reasons'.

That said, the actual Rule [Rule 29, linked above] - on a full reading - fails to make the distinction between "Orders" and "Decisions" clearly, seeming at times to use the terms interchangeably. Within the ambiguity there is even a strong suggestion that parties may request Reviews of Orders, but that the Board additionally may Review "Decisions":
Rule 29.1
A party to an order or any person directly affected by it may request a review and any Vice-Chair of the Board may initiate a review of any order or any decision which finally disposes of an application. [author's emphasis]
The implications of this unfortunate ambiguity are unclear and will not likely be clarified unless pressed to higher court appeal in a specific case. In my opinion the confusion will likely result in all concerned "defaulting" back to traditional common law principles of appeal - where only aspects of a ruling which have a significant practical effect on the interests of the parties will support legal standing for a review. This would tend to favour standing for Orders either granting an applicant some of their requested remedies, or dismissing the Application. "Decisions" alone - which only make negative findings of mixed law and fact against a party but do not result in any other change or loss of legal rights - are unlikely to attract Review jurisdiction.
While writing this I found a temptation to think that this whole debate is 'much ado about nothing', and that the recurring phrase "decisions" can be read meaningfully to refer to 'decisions to dismiss' which - it can be argued - are not strictly speaking "Orders". However that reading has no support, either expressly or implicitly in any of the texts considered above - least of all in the all-important Rule 29.
(c) WHEN: Limitations

While a Board Order is "final and binding" [Act s.209(1)] when made, if it is subject of an amendment [as per Ch.14, s.6(f)] the review deadline only starts to count from the date of the amended Order being issued.

Further, while normally any review (or appeal) deadline will commence from when the Notice of Decision is "served" on the party, this is not the case under Rule 29. Rule 29.3 states that the Review deadline is 30 days "after the order is issued" [author's emphasis].

However, this deadline may be subject to requests to extend time [see Ch.13, s.9(f): General Board Procedures: Calculation of Time: Where Board May Extend and Shorten Time"] which may be used to accomodate for any late service of the Notice of Decision.

Note that a Review initiated by a Vice-Chair is not subject to this deadline.

(d) WHY: Grounds of Review

Board Rule 29 sets out the grounds for a Review as follows:
A person affected by an order may request a review if they believe the Member made a serious error, such as an error of procedure or fact or an unreasonable application of discretion.
"Serious error" is a very broad and vague ground of review. The passage quoted here does however suggest (only suggest) that a Review is appropriate for fact-finding, procedural or discretionary decision errors - thus distinguishing the Review process from the Appeal process (s.3 below), which limits itself to "questions of law". However, the Board has also created Interpretation Guideline 8 (linked below), which sets out in some detail the Board's view as to what constitutes "serious error. The Guideline (unlike the Rule 29 quote) expressly includes errors of jurisdiction and law amongst "serious errors" - thus contradicting the otherwise coherent line-drawing distinction between grounds for Review versus grounds for Appeal.

The upshot of these provisions is apparently that any ruling of substance may be taken to Review. This conclusion (driven by the ambiguity noted above) does much to muddy the procedural waters for parties facing an adverse ruling as it drives them further towards pursuing both Review and Appeal remedies simultaneously, in order to ensure that limitation deadlines are not missed.

Interpretation Guideline 8: Review of an Order

As noted above, the RTA adds a specific ground justifying review: "the Board's power to review a decision or order under that section [SPPA s.21.2] may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding" [Act s.209(2)].

(e) WHO: Standing

Normally in administrative proceedings, the right to appeal or review is limited to "parties" to the original case. However Act s.187(1) sets out a broad definition of "parties" (accepted in Rule 29), which extends standing to request a Review to other affected persons [R29.1]:
As well, any other person directly affected by the outcome of that particular order (but not merely a similar fact situation) may request a review and thereby seek to be added as a party to the proceedings. For example, if two persons own a residential complex, but only one was named as the landlord and participated in the proceedings, the other landlord may seek a review of the order if the order affects his or her interests.
As well (and as alluded to above re Review of "Decisions"), the Board itself (through a Vice-Chair) has standing to commence a review of a Decision [R29.1.1].

(f) HOW: Procedures for a Review

Requests for Reviews should be on the Board-approved form (though clear letters may be accepted), signed, be accompanied by the required fee [Act s.181,182] (which may be refunded if successful)]:

Request to Review an Order

Landlord and Tenant Board Fees

They should - minimally - include the following information:
  • the Board order number;

  • the rent unit address;

  • the name, address and telephone number of the requester;

  • detailed reasons for the request;

  • the remedies requested;

  • where a Court Appeal has also been filed, "an explanation as to why the stay resulting from the appeal should be lifted for the purpose of resolving the review request";

  • where required, a request "for an extension of time to file the request ... and/or a stay of the order during the review process";

  • where "the person requesting the review was not a party to the original proceedings, they should explain their interest in the matter, or if they were a party who did not attend the hearing, they should explain why".

  • where appropriate, it should be noted that a Court Appeal, judicial review application or request for an amendment of the Order is also being undertaken.
The procedure on a Review is for a Board member (other than the one making the original Order) to first conduct a "preliminary review" for merit on the face of the request (ie. whether it "may contain a serious error or that a serious error may have occurred in the proceedings.") Then the member will either dismiss the Review - or alternatively, define the issues to be heard (they may add others not set out by the requester) and (themself) proceed to a hearing to determine them.

Such a hearing may be conducted by oral, written or electronic hearing, as dictated by the circumstances of the case as are normally assessed (eg. evictions are almost always oral hearings while AGI applications are usually in writing) [see Ch.14, s.4: "Hearings, Orders and Enforcement: Hearings"].

On a Review, the Board may "confirm, vary, suspend or cancel" the original ruling. On any dismissal of the Review, any Board stay granted on the Review (not a Court stay) will be lifted by the Board.

No "re-Reviews" by a requester are allowed, though other parties raising new issues may request an additional Review. As well, a Vice-Chair of the Board may re-Review a case.

Reviews may be withdraw by the requester anytime prior to hearing or the issuance of any interim orders, and after that time only with the Board's consent.

3. Court Appeals

(a) Overview

A brief discussion of the general law relating to appeals of SPPA-governed tribunals (such as the Board) is located at this Administrative Law (Ontario)(SPPA) Legal Guide:

Ch.9: Appeals and Judicial Reviews

Court appeals are available to the Divisional Court, which is a branch of the Ontario Superior Court of Justice - and then further (with leave) to the Ontario Court of Appeal. In very rare cases additional appeal is available (with leave) to the Supreme Court of Canada.

At the higher court levels the courts openly weigh the broad legal significance of the case in making their determination as to whether to grant "leave" (permission) to hear cases.

Also of concern in any situation where a court appeal is being contemplated is the issue of "staying" (suspending) the original Order while the appeal is being resolved [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement: Stays"].

(b) WHAT can be Appealed?

The RTA provides that "any person affected by an Order of the Board may appeal the order to the Divisional Court" [Act s.210(1)]. Thus the complexities respecting reviewing "Decisions" of the Board do not arise with respect to Court Appeals. It can be assumed that "Orders" includes dismissals.

An appeal to a court is not a chance to argue your case all over again from scratch. Courts will typically only grant appeals where there is an error of law, while other aspects of a tribunal's decision-making process are commonly afforded a great deal of 'deference' or lenience by a reviewing court. Following are some cases that give a flavour for this 'standard of review' issue.
Case Note: Caputo v Newberg (Div Ct, 2009)

On an application to evict for personal possession and where the tenant had health problems and required assistance from her sister, also a tenant of the same complex, the Board granted 'relief from forfeiture' under RTA 83(1)(a). On appeal the court viewed the decision as one of discretion central to the expertise of the Board, and as such under Dunsmuir v New Brunswick (SCC, 2008) applied a standard of 'reasonableness' with a high level of deference. On this standard the appeal was dismissed, the Board having appropriately considered respective unfairness to both the tenant and the landlord in assessing all of the circumstances.

The Dunsmuir case is the Supreme Court of Canada's most recent recent definitive statement on the standard of review that will be applied in court appeals and judicial reviews. Generally, decisions requiring the discretion of the decision-maker, the making of fact-findings, findings of mixed fact and law, and those lying at the core of a tribunal's specialized expertise will be accorded high levels of 'deference' or lenience by a reviewing court (also called 'reasonableness'), while questions of law and jurisdiction will be reviewed on a more stringent standard of 'correctness'.

Case Note: Martinyiuk v Otavnik (Div Ct, 2010)

A landlord appeal regarding deemed assignment was dismissed where presence of unauthorized new occupant unchallenged by the landlord for 60 days. None of issues raised by the landlord were questions of law, but rather of unappealable findings of fact or mixed fact and law. 'Mixed fact and law' generally refers to the locating of found facts into legal tests to reach a legal conclusion.

Case Note: TCHC v Vlahovich (Div Ct, 2010)

At the Board a tenant countered an application to evict for non-payment of rent with a rent rebate application based on non-repair by the landlord (re flooding). The Board order, upheld on review, that a large rebate be granted to the tenant for periods reaching back more than one year prior to the tenant's application. The court set aside those orders, finding that RTA s.29(2) clearly operated to limit such awards to conduct occuring within one year prior to the making of the tenant's application.

On the issue of standard of review, the court cited Caputo (above) for the proposition that the normal standard of review on a question of law alone (which was the case here) in RTA matters was correctness, except where an exercise of discretion was being reviewed (in which case the standard was reasonableness).

Case Note: First Ontario Realty Corp Ltd v Deng (Ont CA, 2011)

In this case, the Court of Appeal considered an appeal from a Divisional Court judgment which reversed an earlier Board order granting a tenant request for a rent reduction based on a reduction in "common recreational facilities". The Divisional Court decided, applying a standard of correctness, that an external area of land around the buildings only fit that definition if it was specifically landscaped for recreational purpose.

The Court of Appeal however, applying the case of Dunsmuir v New Brunswick (SCC, 2008), held that the proper manner of proceeding in such appeal cases was to consider each issue separately as to it's applicable standard of review - and not to apply one global standard [appeals under the old TPA, like under the present RTA s.210(1) are on a question of law alone]. Dunsmuir holds that pure questions of law and jurisdiction should be subjected to a standard of correctness, while issues of fact-finding and mixed facts and law - particularly where they are close to the specialized expertise of the tribunal, should be subjected to the more deferential standard of 'reasonableness'.

Applying those principles to the case the court held that the Divisional Court erred in applying a standard of correctness to the determination of whether the land in question met the definition of "common recreational facilites". As a question of mixed fact and law close to the expertise of the tribunal this issue should have been considered on the standard of reasonableness. On this standard the Court of Appeal found that the Board's conclusion respecting the status of the subject land was reasonable.

However, the court did find that the Board's approach to the degree of loss of services and the resultant rent reduction amount was not reasonable, and on that basis upheld the result at the Divisional Court against the tenants.

The case appears to terminate a long-standing line of case law that held review of Board decisions to be subject to an undifferentiated standard of correctness in the appeal courts. Now differential standards apply to each separate issues raised on appeal or judicial review:
[18] Although the Divisional Court relied upon the fact that previous courts had consistently applied the standard of correctness to decisions of the Board on questions of law, decisions prior to Dunsmuir may be of limited assistance. .....

[19] It is important to identify the category of question under review. A tribunal may attract different standards of review, depending on the issue involved.
Deng has been interpreted by subsequent cases [Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Secord Ave. (Div Ct, 2012), Avcan Management Inc. v. David O’Laughlin (Div Ct, 2012) and Khokhlov v. Metcap Living Management Inc. (Div Ct, 2013)] as supporting a standard of review of 'reasonableness' for questions of law under the reasoning that legal issues at the heart of the Board's mandate should be given deference as well. However in Deng itself this deference was extended only to an issue of mixed fact and law. In my view, extending deference to legal issues abandons the necessary supervisory role of the courts, and - if it persists - will result in the intolerable development of 'different' law.
(c) WHEN: Limitations

The appeal timeline is "within 30 days after being given the order" [Act s.210(1)].

This starting date will be when service of the "Notice of Decision" is made [see Ch.13, s.8: "General Board Procedure: Service and Filing of Documents", and Ch.14, s.6(e): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Service of Notice of Decision"]. Typically this will be the fifth day after it is mailed by the Board, or the date that it is received by the party - whichever is first.

Note that appeal deadline 'counting' is different from the review deadline. The review deadline starts to count from when the ruling is "issued" [s.2(c) above].

While there is no express provision for the court to extend the time for commencing a court appeal, the court in Fernando v Medallion Corporation (Div Ct, 2010) did so, apparently relying it's general authority under RTA s.210(5) to "make any other order in relation to the matter that it considers proper". In that case, despite the fact that the tenant had already been evicted, the court extended the time for filing a late Notice of Appeal and ordered the tenant back in possession of the premises under strict terms re maintaining current rent, paying arrears and prompt perfection of the appeal and scheduling of the appeal hearing.

(d) WHY: Grounds of Appeal
Compare this discussion with s.2(d) ["WHY: Grounds of Review?"], above regarding grounds for a Board Review. Both discussions are relevant to make the choice as to which procedure to pursue - or whether to pursue both of them.
Appeal to the Divisional Court is available "only on a question of law" [Act s.210(1)]. Such "questions of law" are distinct from challenges to fact-findings and conclusions on witness credibility - which are considered "fact" issues. As well, 'questions of mixed law and fact' which amount to whether a particular legal test is satisfied by facts as found, are not appealable.

Despite s.210(1), it is common for appeals to be launched (but less commonly won) on what amount to 'fact grounds' only. This is because case law has held that extreme mistakes in fact-finding (commonly described as "palpable and overriding" errors) themselves constitute "legal error". However most of these cases are unsuccessful, and the results are highly dependent on the demeanour and inclinations of the particular judges sitting on the (typically three-judge) panel hearing the case.

Before being launched, such appeals to the Divisional Court call for critical review of an experienced lawyer who can plainly and objectively parse out the issues involved in a case. In all such situations however be aware of the short appeal timelines that may apply to your situation - another reason to consult a lawyer right away.

In my experience it is common for laypersons to have a high opinion of their chances on a court appeal, due either to a lack of comprehension of the law, being too close to the facts - or plain wishful thinking. Much time, money and effort can be wasted by parties pursuing these illusions.
Case Note: Seibert v. Juhasz (Div Ct, 2012)
In this case the Divisional Court stated that it's function on an RTA statutory appeal (which is on "questions of law" alone) does not entitle it to consider fresh evidence on appeal, since it's function is limited to assessing the correctness of the Board's decisions below:
[3] The appellant has brought a motion for fresh evidence. The evidence regarding the number of units in the building would not likely have affected the outcome of the hearing, as that evidence was already before the Board. The evidence of conduct after the hearing going to the landlord’s motivation is not admissible, as this Court is only empowered to determine if the Board made an error of law. It is not our function to make findings of fact based on new evidence (see Township of Scugog v. Fletcher (1993), 1993 CanLII 8570 (ON CA), 13 O.R. (3d) 387 (C.A.) at p. 2 of the QuickLaw version). Therefore, the motion to admit fresh evidence is dismissed.
Case Note: Avcan Management Inc. v. David O’Laughlin (Div Ct, 2012)
In this case the court reversed a non-repair and 'substantial interference with reasonable enjoyment' abatement of rent order issued with respect to multiple tenants where:
  • the Board's reasons lacked adequate detail for appellate review,

  • the only evidence of non-repair were deficiencies noted in a city work order [SS: seems fine to me]

  • there was no analysis of how the non-repair substantially interfered with the tenant's ability to occupy the unit
. This is primarily a successful 'inadequate reasons' appeal.
(e) WHO: Standing

While it is worth noting that the right to file an appeal extends beyond "parties" alone ["any person affected by an order: s.210(1)], it is hard to imagine circumstances in which this might be applied. Presumably this could cover the rare situation where a Board makes an Order imposing duties or liabilities on a non-party - which would almost certainly be beyond its jurisdiction.

The Board has the right to make legal submissions on the appeal [Act s.210(3)]. Any documents filed with the Court on the appeal must also be copied to the Board [Act s.210(2)].

(f) HOW: Appeal Procedures

Procedures for an appeal to the Divisional Court are complex and beyond the scope of this program. Parties may wish to have regard to the Rules of Civil Procedure [R61-63]. As well, the Divisional Court has posted a useful Appeal Information Package on its website, explaining some of its procedures to the public.

That said, in resolving an appeal the Court may, with respect to the Board Order [Act s.210(4)(5)]:
  • affirm,

  • rescind,

  • amend,

  • replace the decision or order;

  • remit the matter to the Board with the opinion of the Divisional Court;

  • "may make any order with respect to costs that it considers proper"; and

  • "make any other order in relation to the matter that it considers proper".
This broad remedial authority (esp. to "replace the decision or order") should be enough to allow a just decision and remedy in any given case.

Any court legal "costs" will be assessed under the court's Rules of Civil Procedure, not under Board Rules.
Case Note: Goble v Vranjes (Div Ct, 2010)

Despite quashing a tenant's appeal for being frivolous and vexatious, the court held hat it had no jurisdiction to order eviction of the tenants and/or to assess the final rent arrears:
[24] I do not possess the jurisdiction to order the appellants to vacate the premises as requested nor do I have the jurisdiction to order them to forthwith pay any arrears of rent. Those are matters that will have to be dealt with by the Landlord and Tenant Board.
In so doing the court failed to consider it's RTA s.210(4) and (5) appeal jurisdiction to do just those things.

Case Note: Falconer v. Manufacturers Life Insurance Company (Div Ct, 2008)

The decision in Goble v Vranjes (Div Ct, 2010) (above) can be contrasted with that in Falconer v Manufacturer's Life Insurance Company (Div Ct, 2008) on a similar landlord motion and with similar facts (ie. extensive adjournment requests, large arrears and avoidance of service). On a finding that the tenant's behaviour was frivolous and an abuse of process, the court in Falconer quashed the tenant's appeal to the Divisional Court. In quashing the appeal and vacating the stay the court also ordered the sheriff to evict the tenant in accordance with the Board's earlier order, expressly relying on its RTA s.210(5) jurisdiction to do so.

Case Note: Levine v Jack Aaron and Company (Div Ct, 2003)

In the case of Levine v Jack Aaron and Company (Div Ct, 2003) the court was faced with a tenant's appeal of a Board consent order for termination and eviction, which the court dismissed as lacking merit, then re-ordering termination and eviction. However the consent order contained catch-up payment provisions, one of which the tenant purported to have satisfied, thus putting the original Board order terms at odds with the court's order in the appeal dismissal. When the tenant did not move in compliance with the court order the landlord sought a contempt order, which the tenant countered with the argument that jurisdiction to order termination and eviction was solely the prerogative of the RTA statutory scheme [citing Fraser v Beach (Ont CA, 2005)]. The court, even assuming that the tenant had complied with the catch-up payment terms, defended it's ruling by citing RTA 210(5) as authority for it's making the termination and eviction order in the context of disposing of an appeal. The principle established in Fraser was not offended since the court drew it's authority from the RTA itself.

Case Note: Belcourt Manor Inc v Collard (Div Ct, 2010)

Court reverses refusal of eviction order by Board where Board erroneously considered application on issue of demolition where application was based on renovation. Court does not send back down, but due to full record from below substitutes its own decision under Act s.210(4).

Case Note: Jung v Toronto Community Housing Corporation (Div Ct, 2008)

Board Orders may also be appealed on general grounds of what is called 'natural justice', which is a large common law category of principles dealing with basic procedural fairness. The leading Supreme Court of Canada case on natural justice is Baker v Minister (Citizenship and Immigration) (SCC, 1999). That case was applied here to grant an appeal and sent the matter back to be re-heard where the Board member showed an extremely scattered and prejudicial attitude to both the case and the tenant party's counsel. It's worth a read (try the Canlii online databases) to see just how bad such things can get in some cases.

Case Note: Decosse v. Isles of Innisfree Non Profit Homes (Div Ct, 2012)
In this case the tenant was asserting a tenant's rights violation set-off defence against a non-payment of rent application. The Divisional Court found breaches of natural justice where:
  • the Board failed to address it's RTA s.83(2) duty to 'review the circumstances' and to consider whether to grant relief from forfeiture, and

  • the Board made an adverse credibility finding as to why the tenant was late for the original hearing despite there being no conflicting evidence on the point and despite the tenant having demonstrated a clear intention on other occasions to dispute the landlord's termination application.
Of similar effect on the s.83(2) point was the case of Ansari, et al v. JIHC Crescent Village (Div Ct, 2012).
(g) Appeal to Court of Appeal

A party may further appeal the decision of the Divisional Court to the Ontario Court of Appeal, with leave (permission) of that court [Courts of Justice Act, s.6(1)]. Applying for leave to appeal is a lot of paperwork, must be done quickly, and there is no guarantee of success.

The Board as well has the right to appeal a Divisional Court decision to the Court of Appeal, as though it were a party [Act s.211].

The procedures for such appeals are beyond the scope of this program.

4. When To Choose a Review, an Appeal - or Both?

As per the discussion of "grounds" for both Review [s.2(d) and Court Appeals [s.3(d)] above, there is overlap in the grounds for a Review and for an Appeal.

Further, there is no provision in the legislation extending the time for filing an Appeal until any Reviews are resolved - so anyone waiting for their Review to be decided before they file an Appeal will certainly be past the court Appeal deadline by the time that a Review is decided. As well, the rules governing "stays" clearly anticipate situations where both a Review and a Court Appeal will be conducted simultaneously [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement: Stays"].

What then is an aggrieved person to do in these awkward (and IMHO unreasonable) circumstances?

Note from the above discussions [which must be reviewed carefully] that "questions of law" (which are grounds of Appeal) seem (I have discussed the ambiguity above) to be fully included within the grounds for Review ("serious errors"). Prudence would then dictate that when the issues are legal in nature [as per s.3(d) above] then they should be both "Reviewed" and "Appealed" (in order to preserve the right to appeal) at the same time - but otherwise they should only be "Reviewed". If the Review is successful the Appeal can be withdrawn as per court rules. The exception to this, would be where a fact-error is (arguably) so "palpable and overriding" that it also constitutes a legal error which should be pursued in court.

The net procedural result and burden for the typical tenant of limited means is a legal embarrassment to us all.

5. Judicial Reviews

A brief discussion of the general law relating to judicial reviews of SPPA-governed tribunals (such as the Board) is linked at this Legal Guide:

Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial Reviews

Also of concern in any situation where a judicial review is being contemplated is the issue of "staying" (suspending) the original Order while the judicial review is being resolved [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement: Stays"].

6. Reasons, Board File and Record of Proceedings

(a) Request Board Reasons

To facilitate any Review, Court Appeal or judicial review, a party should always request "written reasons" from the Board [see Ch.14, s.6(c): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Reasons"].

(b) Board File

All SPPA-governed tribunals (including the Board) shall keep a "record" (ie. file) of all proceedings in which a hearing has been held, including [SPPA s.20]:
  • the document by which the proceeding was commenced;

  • notice of hearing;

  • any interlocutory orders, decisions and reasons for decision (where reasons are given);

  • all documentary evidence filed with the tribunal, except as use of such evidence is limited by statute (in which case presumably it should not have been admitted into evidence and should be returned as appropriate);

  • the transcript, if any, of the oral evidence given at the hearing.

    It is not Board practice to prepare transcripts.
Copies of materials in the file are available to the parties (only), and are thus available for purposes of Review, Court Appeal or judicial review.

(c) Recordings and Transcripts of Evidence

The Board's policies with respect to recordings and transcripts of evidence at hearings is set out in Rule 25, linked here:

Rule 25: Recording of Proceedings

Note that while the SPPA has no mandatory requirement for a transcript of evidence at hearings, the Board's policy is to record "most" hearings [Rule 25.2] and to make copies of the recording (not transcripts) available for a fee [Landlord and Tenant Board Fees]. Parties will have to have it transcribed privately for use.

Request for Hearing Recording

Recording copies must be requested within a year of their making.

All other persons (including parties) require the Board's prior consent (which may be conditional) before making any audio-visual recordings of the proceedings. However, parties may - at their own expense and on prior notice to the Board - bring a court reporter to the hearing for purposes of making a verbatim transcript [R25.5].

On these issues see also Ch.14, s.4(c): "Hearings, Orders and Enforcement: Hearings: Hearing Conduct and Public Access Issues".
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