Request to Review an Order (LTB)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-10-07
CLNP Page ID: 618
Page Categories: [Hearing Process (LTB)], [Appeals], [Category:Request to Review (LTB)]
Citation: Request to Review an Order (LTB), CLNP 618, <3E>, retrieved on 2022-10-07
Editor: Sharvey
Last Updated: 2022/06/29


Residential Tenancies Act, 2006, S.O. 2006, c. 17[1]

209 (1) Except where this Act provides otherwise, and subject to section 21.2 of the Statutory Powers Procedure Act, an order of the Board is final and binding. 2006, c. 17, s. 209 (1).

(2) Without limiting the generality of section 21.2 of the Statutory Powers Procedure Act, the Board’s power to review a decision or order under that section may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding. 2006, c. 17, s. 209 (2).

Landlord and Tenant Board Rules[2]

Powers of the LTB

1.6 In order to provide the most expeditious and fair determination of the questions arising in any proceeding the LTB may:
a. waive or vary any provision in these Rules and may lengthen or extend any time limit except where prohibited by legislation or a specific Rule;
...
u. take any other action the LTB considers appropriate in the circumstances.
...

Rule 26 - Review of Orders

26.1 Any party may request review of any order which makes a final determination of the party's rights. For these purposes an interim order may contain a final determination of rights. A person who is directly affected by a final order may also request a review of an order.
26.2 The parties to the request to review are the parties to the order, the person requesting the review, and any other person added to the proceedings by the LTB.
26.3 The LTB may review an order on its own initiative where it considers appropriate and will issue directions to the parties with respect to the conduct of the review. A party or a directly affected person cannot request an LTB initiated review of an order.
...

Limits on Further Requests for Review

26.18 The LTB will not consider a further request to review the same order or to review the review order from the same requesting party.
26.19 A party or directly affected person may request a review of the same order on different grounds provided the requestor's interests in the proceeding are different from those of the first requestor.

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22[3]

21.2 (1) A tribunal 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. 1997, c. 23, s. 13 (20).

(2) The review shall take place within a reasonable time after the decision or order is made.
(3) In the event of a conflict between this section and any other Act, the other Act prevails. 1994, c. 27, s. 56 (36).

...

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1. 1999, c. 12, Sched. B, s. 16 (8).

[3]

Review of an Order - Interpretation Guideline 8

Introduction

...

A review is not an appeal or an opportunity to change the way a case was presented.

The purpose of the review process is not to provide parties with an opportunity of presenting a better or different case than they did at first instance. There is nothing in the record or in the request for review to support a determination that the Member applied improper principles in assessing the evidence introduced or that there was insufficient evidence before the Board to support its conclusions. I would not interfere with the assessment of the evidence by the Member of first instance, who had the opportunity of observing the witnesses and of hearing the evidence in its totality. (TSL-51694-14-IN-RV (Re), 2015 CanLII 23959 (ON LTB) at para 10.)

Grounds for Review:
Serious Error Serious error includes:

  • An error of jurisdiction. For example the order relies on the wrong section of the RTA or exceeds the LTB's powers. This issue need not have been raised in the original hearing;
  • A procedural error which raises issues of natural justice;
  • An unreasonable finding of fact on a material issue which would potentially change the result of the order;
  • New evidence which was unavailable at the time of the hearing and which is potentially determinative of one or more central issues in dispute;
  • An error in law. The LTB will not exercise its discretion to review an order interpreting the RTA unless the interpretation conflicts with a binding decision of the Courts or is clearly wrong and unreasonable; and,
  • An unreasonable exercise of discretion which results in an order outside the usual range of remedies or results and where there are no reasons explaining the result.

[4]

CET-18301-11-RV2 (Re), 2012 CanLII 98083 (ON LTB)[5]

Determinations:

1. Sub rule 29.21 of the Landlord and Tenant Board Rules of Practice states:

The Board may review an order or decision which has previously been reviewed, or may review a review order, if the request is made by another party upon different grounds or if the review is initiated by a Vice-Chair of the Board.

2. The Applicant’s request to review the review order is not made upon different grounds.

3. The Applicant raises the issue that the Member at the review hearing misread and/or misapprehended the facts and law of the case, Matthews v. Algoma Timberlakes Corporation, 2010 ONCA 468 (Court of Appeal, Ontario) with respect to issues related to the mobility of trailers/permanent structures and the seasonal or temporary use. These issues were also the issues raised by the Respondent in the request to review filed in May 18, 2012.

4. A review process is not an opportunity for a party to present argument which was already presented at the first hearing, or which could have been presented at the first hearing. It is not an opportunity to do what should have been done or could have been done to make ones’ case stronger. This unduly increases costs and delays the proceedings. Also the review process is not intended for the reviewing Member to substitute his/her discretion for that of the original Member absent the possibility of a serious error.

5. The reasons and determinations provided for in the Review Order demonstrate the analysis and thought process undertaken by the Review Member in reaching her decisions. On a preliminary basis, I do not find that the Applicant established that the Member ignored the Applicant’s evidence and submissions, treated the Applicant unfairly, or made a serious error in law, fact or procedure in relation to the findings related to the Applicant’s application on whether the Residential Tenancies Act, 2006 applies.

[5]

Fava v. Harrison, 2014 ONSC 3352 (CanLII) [6]

[6] The landlords requested a review of Board Member Beckett’s decision. Pursuant to s.184(1) of the Residential Tenancies Act, the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, applies to proceedings before the Board. Section 21.2(1) of the Statutory Powers Procedure Act provides as follows:

21.2(1) A tribunal may, if it considers it advisable and if its rules made under s. 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.

[7] Section 209(1) of the Residential Tenancies Act provides that an order of the Board is final and binding, subject only to s. 21.2 of the Statutory Powers Procedure Act.

[18] In this case, Board Member Beckett made a finding of fact that the notice that one of the landlords wished to occupy the property was not given in good faith. She decided that the credibility of the landlords was undermined because one of the landlords took the position that she wished to live in the house notwithstanding the other landlord’s belief that the unit was unsafe. In our view, the Board was entitled to take this into account in assessing the landlord’s credibility and in assessing the landlord’s good faith. In our view, Board Member Van Delft’s conclusion restricts the meaning of the term “good faith” to an unreasonable degree. By excluding any consideration of the landlord’s motives in deciding whether the landlord has acted in good faith, she has unduly restricted the consideration the Board must give to that term. We see nothing in Salter or Feeney, supra, to the contrary.

[19] It was also unreasonable of Board Member Van Delft to fail to consider the question of whether the landlord’s review application should have been refused by Board Member Beckett because the landlords were in serious breach of their responsibilities under the Act.

[6]

Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 (CanLII) [7]

[37] It has been repeatedly held that a failure of natural justice is reviewable on appeal by this court (see Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (Div. Ct.) [8] (“Decosse”); and Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) [9] (“Duncan”).

[38] I adopt the following summary of the requirement for natural justice from Decosse (at paragraphs 6-8):

A Tribunal is required to comply with the requirements of natural justice. There is no standard of review. On appeals on questions of law, the standard of review to be applied is correctness.
Failure to meet the standards will result in a Tribunal's order being quashed.
Under the Residential Tenancies Act, 2006, S.O. 2006 c. 17, there is a statutory right of appeal on questions of law alone, a factor suggesting a more rigorous standard of review. Further, the Court has wide powers on appeal, and may affirm, rescind, replace, or amend the decision below, remit the matter back with the opinion of the Court, and make any other order that it considers proper. It may substitute its own opinion for that of the Tribunal.

[43] Member Henry on the request for review held that Robert “bore a positive obligation to contact the Board at that time, perhaps by telephone, to advise of his circumstances”. Member Henry made that finding without hearing any evidence as to (i) whether the Brewers had a cell phone, (ii) whether there was a telephone number that existed to reach the local office of the LTB on such short notice in an effective manner to advise that the Brewers could not attend, or (iii) whether cell phone service, or such a telephone number for the LTB, if it existed, was readily available to the Brewers in a parking garage three floors below ground when the Brewers asserted that they had been told by workers in the building that the elevators had shut down.

[50] For the reasons I discuss above, I grant the appeal and remit the matter to the LTB, to a different Member, to hold a review hearing to determine if the Brewers were reasonably unable to attend the hearing, and if so, to conduct the fresh hearing. As a result, the Review Order is set aside, and the LTB at the subsequent review hearing will consider whether the decision in the Guzina Order is to be maintained.

[7] [8] [9]

References

  1. Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17#BK271>, retrieved 2021-08-12
  2. Landlord and Tenant Board Rules of Procedure, <https://tribunalsontario.ca/documents/ltb/Rules/LTB%20Rules%20of%20Practice_dec2020.html>, retrieved 2021-08-12
  3. 3.0 3.1 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, <https://www.ontario.ca/laws/statute/90s22>, reterived 2021-08-12
  4. Review of an Order - Interpretation Guideline 8, <https://tribunalsontario.ca/documents/ltb/Interpretation%20Guidelines/08%20-%20Review%20of%20an%20Order.html>, reterived 2021-08-12
  5. 5.0 5.1 CET-18301-11-RV2 (Re), 2012 CanLII 98083 (ON LTB), <https://canlii.ca/t/fzz7d>, retrieved on 2021-08-12
  6. 6.0 6.1 Fava v. Harrison, 2014 ONSC 3352 (CanLII), <http://canlii.ca/t/g77v1>, retrieved on 2020-06-03
  7. 7.0 7.1 Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 (CanLII), <http://canlii.ca/t/hqg5p>, retrieved on 2020-06-03
  8. 8.0 8.1 Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (CanLII), <http://canlii.ca/t/fqdv6>, retrieved on 2020-06-03
  9. 9.0 9.1 Duncan v Toronto Community Housing Corp., 2015 ONSC 4728 (CanLII), <http://canlii.ca/t/gkbl4>, retrieved on 2020-06-03