Standard of Review (LTB)

Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44 (CanLII)

(1) Standard of Review

[17] When this court considers a decision of the Divisional Court reviewing a decision of an administrative tribunal, it “steps into the shoes” of the Divisional Court and asks whether the Divisional Court identified the appropriate standard of review and applied it correctly: see Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), (2013) 2 S.C.R. 55, at paras. 45-47; Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 (CanLII), at para. 27. Where an administrative tribunal interprets or applies its home statute, the standard of review is presumptively reasonableness: Onyskiw at para. 28; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., 2011 SCC 61 (CanLII), (2011) 3 S.C.R. 654, at para. 39.

[18] Determining whether notices of rental increases were required under s. 116(1) of the RTA is one of the LTB’s core functions. The Divisional Court properly identified and applied a reasonableness standard of review. Indeed, the appellant does not argue to the contrary.

Harris v. Toronto Community Housing Corporation, 2009 CanLII 34989 (ON SCDC)

[30] Section 210 of the RTA limits appeals to questions of law. The distinction between questions of law, fact, and mixed fact and law was articulated by Justice Iacobucci in Canada (Director of Investigations and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), (1996) S.C.J. No. 116 at para. 35):

…Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact

Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 (CanLII)

[28] Where an administrative tribunal interprets or applies its home statute, the standard of review is presumptively reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), (2011) 3 S.C.R. 654, at para. 39. A correctness standard may apply if the question at issue is both of central importance to the legal system and outside the adjudicator’s specialized area of expertise: Alberta (Information and Privacy Commissioner), at para. 46. However, this exceptional category must be interpreted conjunctively and not as separate and distinct factors: see Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13 (CanLII), 315 Man. R. (2d) 123, at para. 48.

[29] Where, as here, the jurisprudence has already determined the standard of review and thus the degree of deference to be accorded to a particular category of question before a given administrative tribunal, this will end the inquiry: see Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), (2008) 1 S.C.R. 190, at para. 62; First Ontario Realty Corporation v. Deng, 2011 ONCA 54 (CanLII), 274 O.A.C. 338, at para. 20. Subject to the exception stated above, decisions of the Board are subject to review on a standard of reasonableness: Deng, at para. 21. In Deng, this Court held, at para. 21, that the Board administers a specialized adjudicative regime for resolving residential tenancy disputes, and where it is required to interpret its “home statute” (the RTA) and regulations, with which it has particular familiarity, in making determinations with respect to its core functions, deference is owed to its decisions.

[30] In the present case, determining whether to order an abatement of rent based on a breach of the landlord’s duties to repair and maintain under s. 20(1) is one of the Board’s core functions and required the Board to interpret the RTA and related regulations.

[31] Applying these general principles, unless the tenants can persuade the court that the issue before us is both of central importance to the legal system and outside the Board’s expertise, the standard of review to be applied to the Board’s decision is reasonableness.

Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII)

[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, the deferential standard of reasonableness applies to its decisions. see First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54 (CanLII)

[30] In 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.

[31] Questions of sufficiency of evidence or credibility, being questions of mixed fact and law, are not reviewable on appeal. (Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), (1997) 1 SCR 748)

Gatien/Brown v. Bombaci, 2019 ONSC 2679 (CanLII)

[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.

Residential Tenancies Act, 2006

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).

Board to receive notice

(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).

Board may be heard by counsel

(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).

Powers of Court

(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Board with the opinion of the Divisional Court. 2006, c. 17, s. 210 (4).

Same

(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).

Board may appeal Court decision

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.

Marineland of Canada Inc. v. Olsen, 2011 ONSC 6522 (CanLII)

[8] As the Board was interpreting provisions of its home statute, the standard of review is reasonableness (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.