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| [[Category:Landlord Tenant]]
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| ==Appeal Deadlines==
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| ===The Notice of Appeal===
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| ====[https://www.ontario.ca/laws/regulation/900194 R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE]====
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| 61.04 (1) An appeal to an appellate court shall be commenced by serving a notice of appeal ([http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/61a1/rcp-e-61a-1-0918.doc Form 61A or 61A.1]) together with the certificate required by subrule 61.05 (1), <b><u>within 30 days after the making of the order appealed from</b></u>, unless a statute or these rules provide otherwise,
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| ::(a) on every party whose interest may be affected by the appeal, subject to subrule (1.1); and
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| ::(b) on any person entitled by statute to be heard on the appeal. O. Reg. 14/04, s. 31; O. Reg. 536/18, s. 2 (1).
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| :(1.1) The notice of appeal and certificate need not be served on,
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| ::(a) a defendant who was noted in default; or
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| ::(b) a respondent who has not delivered a notice of appearance, unless the respondent was heard at the hearing with leave. O. Reg. 14/04, s. 31.
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| 61.05 (1) In order to minimize the number of documents and the length of the transcript required for an appeal, the appellant shall serve and file, with proof of service, with the notice of appeal an appellant’s certificate respecting evidence ([http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/61c/RCP_E_61C_1105.doc Form 61C]) setting out only the portions of the evidence that, in the appellant’s opinion, are required for the appeal. O. Reg. 570/98, s. 5; O. Reg. 82/17, s. 8 (1).
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| :(2) Within fifteen days after service of the appellant’s certificate, the respondent shall serve on the appellant, and file with proof of service, a respondent’s certificate respecting evidence ([http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/61d/RCP_E_61D_1105.doc Form 61D]), confirming the appellant’s certificate or setting out any additions to or deletions from it. R.R.O. 1990, Reg. 194, r. 61.05 (2); O. Reg. 82/17, s. 8 (2).
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| ===Amendments or Changes to the Appeal===
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| ====[https://www.ontario.ca/laws/regulation/900194 R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE]====
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| 61.08 (1) The notice of appeal or cross-appeal may be amended without leave, before the appeal is perfected, by serving on each of the parties on whom the notice was served a supplementary notice of appeal or cross-appeal ([http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/61f/RCP_E_61F_0707.doc Form 61F]) and filing it with proof of service. R.R.O. 1990, Reg. 194, r. 61.08 (1).
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| :(2) No grounds other than those stated in the notice of appeal or cross-appeal or supplementary notice may be relied on at the hearing, except with leave of the court hearing the appeal. R.R.O. 1990, Reg. 194, r. 61.08 (2).
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| :(3) No relief other than that sought in the notice of appeal or cross-appeal or supplementary notice may be sought at the hearing, except with the leave of the court hearing the appeal. R.R.O. 1990, Reg. 194, r. 61.08 (3).
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| ===Perfecting the Appeal===
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| ====[https://www.ontario.ca/laws/regulation/900194 R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE]====
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| 61.09 (1) The appellant shall perfect the appeal by complying with subrules (2) and (3),
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| :(a) where no transcript of evidence is required for the appeal, within thirty days after filing the notice of appeal; or
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| :(b) where a transcript of evidence is required for the appeal, within 60 days after receiving notice that the evidence has been transcribed. R.R.O. 1990, Reg. 194, r. 61.09 (1); O. Reg. 570/98, s. 6 (1).
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| 61.12 (1) Every respondent shall,
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| :(a) serve on every other party to the appeal,
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| ::(i) a typed or printed copy of the respondent’s factum, and
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| ::(ii) the respondent’s compendium;
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| :(b) file with the Registrar, with proof of service,
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| ::(i) three typed or printed copies of the respondent’s factum, and where the appeal is to be heard by five judges, two additional copies, and
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| ::(ii) three copies of the respondent’s compendium, and where the appeal is to be heard by five judges, two additional copies; and
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| :(c) file with the Registrar an electronic version of the respondent’s factum. O. Reg. 19/03, s. 17.
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|
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| ===Respondents Deadlines===
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| ====[https://www.ontario.ca/laws/regulation/900194 R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE]====
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| 61.04 (5) The appellant shall <b><u>within thirty days after filing the notice of appeal</b></u> file proof that the appellant has ordered a transcript of all oral evidence that the parties have not agreed to omit, subject to any direction under subrule 61.09 (4) (relief from compliance). R.R.O. 1990, Reg. 194, r. 61.05 (5).
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| 61.12 (2) The <b><u>respondent’s factum and compendium</b></u> shall be delivered <b><u>within 60 days after service of the appeal book and compendium</b></u>, exhibit book, transcript of evidence, if any, and appellant’s factum. O. Reg. 19/03, s. 17.
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| ==Standard of Review==
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| [https://www.ontario.ca/laws/regulation/900194 See Rule 61 and all sub-rules]
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| ===[http://canlii.ca/t/h677c Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII)]===
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| [29] Pursuant to s. 210(1) of the RTA, a statutory right of appeal lies from a decision of the Board on questions of law. '''The Court of Appeal has held that the Board is charged with administering a specialized adjudicative regime for resolving disputes with which it has particular familiarity, when it is interpreting its “home statute” or making determinations with respect to its core functions, and as such, <u>the deferential standard of reasonableness</u> applies to its decisions'''. see [http://canlii.ca/t/2fcx9 First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54 (CanLII)]
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| [30] In [http://canlii.ca/t/1vxsm Dunsmuir v. New Brunswick] the Supreme Court held that '''reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process'''. But it '''is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'''.
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| [31] <b><u>Questions of sufficiency of evidence or credibility, being questions of mixed fact and law, are not reviewable on appeal.</b></u> ([http://canlii.ca/t/1fr34 Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), (1997) 1 SCR 748])
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| ===[http://canlii.ca/t/j0298 Gatien/Brown v. Bombaci, 2019 ONSC 2679 (CanLII)]===
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| [7] An appeal lies to this Court pursuant to section 210 (1) of the Act only on a question of law. The parties are agreed that the standard of review is reasonableness.
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| [https://www.ontario.ca/laws/statute/06r17#BK299 Residential Tenancies Act, 2006]
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| 210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. 2006, c. 17, s. 210 (1).
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| '''Board to receive notice'''
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| :(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal. 2006, c. 17, s. 210 (2).
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| :Board may be heard by counsel
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| :(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal. 2006, c. 17, s. 210 (3).
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| '''Powers of Court'''
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| :(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
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| ::(a) affirm, rescind, amend or replace the decision or order; or
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| ::(b) remit the matter to the Board with the opinion of the Divisional Court. 2006, c. 17, s. 210 (4).
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| '''Same'''
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| :(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper. 2006, c. 17, s. 210 (5).
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| '''Board may appeal Court decision'''
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| 211 The Board is entitled to appeal a decision of the Divisional Court on an appeal of a Board order as if the Board were a party to the appeal. 2006, c. 17, s. 211.
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| ===[http://canlii.ca/t/fpdnp Marineland of Canada Inc. v. Olsen, 2011 ONSC 6522 (CanLII)]===
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| [8] As the Board was interpreting provisions of its home statute, the standard of review is reasonableness ([http://canlii.ca/t/2fcx9 First Ontario Realty Corp. v. Deng, 2011 ONCA 54 (CanLII) at para. 21]). This is not a case like Darragh v. Normar Developments Inc., [2008] O.J. No. 2586 (Div. Ct.) at para. 15, where the Court held that the standard of review was correctness. There, the Board was applying common law principles of statutory interpretation respecting retroactivity and retrospectivity of legislation.
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| ==Grounds for Appeal==
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| ===Failure of Natural Justice===
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| ====[http://canlii.ca/t/hqg5p Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 (CanLII)]====
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| 37 It has been repeatedly held that '''<u>a failure of natural justice is reviewable on appeal by this court</u>''' (see [http://canlii.ca/t/fqdv6 Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (Div. Ct.) (CanLII) (“Decosse”)]; and [http://canlii.ca/t/gkbl4 Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) (CanLII) (“Duncan”))].
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| [38] I adopt the following summary of the requirement for natural justice from Decosse (at paragraphs 6-8):
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| ::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.
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| ::Under the [https://www.ontario.ca/laws/statute/06r17 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.
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