Natural Justice - Re: Principles of

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

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.) (CanLII) (“Decosse”); and Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) (CanLII) (“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.

Bowmanville Valley Cooperative Homes Inc. v. Spicer, 2005 CanLII 40357 (ON SC)

[11] The Applicant argues that the eviction decision must stand so long as it is reasonable on its face and the procedure by means of which it was reached was fair. In order to require the court’s intercession, the applicant asserts, the decision must be so patently unreasonable that no reasonable decision-maker could have reached it. Moreover, inasmuch as there is more than one ground in this case upon which the eviction is predicated, the applicant asserts that so long as one of the grounds upon which the eviction is based is reasonable, that is sufficient to uphold the decision to evict.

[12] If those conditions are satisfied, the court must, the Applicant contends, respect the democratic process inherent in the cooperative housing regime and the right of the cooperative to engage in an autonomous decision-making process. Counsel argues that the court has no right to simply impose its own view of what the board ought to have done in the circumstances. Rather, counsel says, the court’s function is limited to a review of the cooperative’s proceedings only so far as is necessary to ensure substantive and procedural fairness have been accorded the Respondents.

[17] In that behalf, in Lakeshore Village Artists’ Cooperative Inc. v. Elphege Leger, (Ont. S.C., unrep May 28, 2004; Court File No. CV-250902), relying on Mario D. Giovanni Housing Cooperative Inc. v. Nye [2003] O.J. No. 210, Himel J. held:

“Where the Board of Directors of a cooperative conducts itself according to the requirements of natural justice and procedural fairness, where the respondent was present at the meeting, had an opportunity to remedy his behaviour and an opportunity to appeal the decision, and it was in the best interest of the cooperative that he be evicted, the court will not interfere with the board’s decision.”

In my view, all of those conditions obtain in the instant case. The Respondents were served with notice of the board meeting and took advantage of the opportunity they were given to call witnesses and make representations to the board. They availed themselves of the same opportunity on the hearing of the appeal to the entire membership of the cooperative, at which the earlier ordered eviction was affirmed by majority vote.

[22] It must also be remembered that not all grounds for the board’s decision need be reasonable. Provided that the decision reached is reasonable on one ground, the fact that the decision might not be reasonable based on the other grounds the board considered does not invalidate the decision; rather, it is sustainable: Tamil Co-operative Homes Inc. v. Arulappah, [1996] O.J. No. 768 (Ont. Ct. G.D.), at para 67. In this case, then, even if I were to agree with the Respondents’ position that, for the reasons they advance, the eviction order is unreasonable based on the misbehaviour ground, the fact remains that they did not pay their housing charges on time on many occasions and did not pay the charges in full on occasions. Under Article 9 of the by-laws, that alone amounts to a reasonable basis upon which to order that the Respondents be evicted.

Lafarge Canada Inc. v. 1341665 Ontario Ltd, 2004 CanLII 9072 (ON SCDC)

[6] The rules of natural justice may require that a person be given an opportunity to be heard if his or her rights or obligations are to be affected by the decision of a tribunal. However, in determining whether that is the case, one must also consider the subject matter of the decision making power, the nature of the issue to be decided, and the importance of the determination on those directly or indirectly affected (The Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495 at 504).

Howe v. Institute of Chartered Accountants of Ontario, 1994 CanLII 3360 (ON CA)

But where the ruling amounts to a breach of the tribunal's duty of fairness, or a breach of natural justice, then different considerations apply. A breach of natural justice amounts to or is akin to jurisdictional error; and in administrative law language, a tribunal which begins with jurisdiction to decide will lose jurisdiction or act in excess of its jurisdiction if, in the course of deciding, it breaches natural justice: see S.E.I.U., Local 333 v. Nipawin District Staff Nurses' Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382 at p. 389, 41 D.L.R. (3d) 6.

Where there is jurisdictional error arising from a breach of natural justice during the course of the proceedings, a court is entitled to intervene to correct the error though the party affected has a right of appeal. This was the central point of Dickson J.'s strong dissent in Harelkin v. University of Regina, supra. He summarized his reasons at p. 604:

(1) the principle of exclusion of certiorari in the absence of "special circumstances", where there is a right of appeal, applies only to errors within jurisdiction;

(2) a decision made without natural justice is not a decision within jurisdiction;

(3) when a tribunal so acts without jurisdiction, certiorari will be granted ex debito justitiae, notwithstanding a right of appeal to another administrative tribunal.

Bellamy Housing Co-Operative Inc. v. Bryant, 2008 CanLII 23705 (ON SC)

[34] I adopt the standard of review described by Molloy J. in Tamil Co-operative Homes Inc. v. Arulappah, [1996] O.J. No. 768 (Gen. Div.) at paras. 59-61:

The relationship between the [c]o-operative and its members is fundamentally different from the usual landlord and tenant relationship. The intent of the [Act] was to preserve the “distinctive character” of housing co-operatives while at the same time ensuring that members receive protection “similar” to those given to tenants under the Landlord and Tenant Act. The Board of Directors of a [c]o-operative is a democratically elected body of which the member/tenant is a part and within which he or she has a voice. Members of co-operatives have many protections and privileges that regular tenants do not. There is a hearing process before the Board (with a right of appeal) before a member’s rights can be terminated. There is also a democratic process for removal of a Board of Directors in whom the membership has no confidence. These protections must be taken into account by the Court in considering cases involving co-operatives. The philosophy underlying co-operative housing would be completely undermined if the decisions of co-operatives were treated in the same manner by the Court as decisions of private landlords. Some degree of deference to the democratically elected Board is required. It is not appropriate, in my view, for the Court to substitute its own opinion for that of the co-operative or to second-guess what the co-operative has done.

That is not to say, however, that co-operatives have untrammelled powers over their members. Under the [Act] the Court has a supervisory role to ensure that members are treated fairly and in accordance with the legislation and internal by-laws. Thus, as was recognized in Comfort Living, the Court can and should intervene if a member has not been treated “with procedural fairness and in accordance with the rules of natural justice”. I believe it also proper to apply a reasonableness standard to reviewing decisions of the Board of Directors as was held by Ewaschuk J. in the Mimico case and by Epstein J. in the Woburn Village Co-operative case. Generally speaking then, the Court will not intervene if a member has been dealt with in accordance with principles of natural justice and procedural fairness and if the Board had a reasonable basis for its decision in the circumstances. This, in my view, is the standard of review. [emphasis added]

[35] Accordingly, in addition to reviewing proceedings of the Board for compliance with the principles of natural justice and procedural fairness, the Court has jurisdiction to review the reasonableness of the Board’s decision to withdraw the respondents’ subsidy and to evict the respondents. However, in respect of these decisions, the Court’s authority is limited to determining whether the evidence before the Board discloses a reasonable basis for each decision. If such evidence exists, the Court must respect the decisions of the Board even if it would have decided differently.

[41] Prior to making any decision that is adverse to a household and that may be reviewed under section 82 of the SHRA (which includes a decision that a household is ineligible for RGI assistance), section 80 of the SHRA requires the service manager to give the household an opportunity to comment on information that may form a significant basis for the decision.

[42] In addition, section 82 of the SHRA provides that a household member is entitled to request an internal review of a decision of a service manager that the household is ineligible for RGI assistance. Section 58 of the Regulation prescribes the requirements for an internal review. In addition, subsection 83(2) of the SHRA provides that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does not apply to an internal review, and subsection 84(4) provides that the decision of the person conducting an internal review is final, the SHRA making no provision for an appeal.

[75] Section 171.21 of the Act provides that the Court has the discretion to refuse an application for eviction if it is satisfied, having regard to all the circumstances, that it would be unfair to grant it. The applicable case law on the exercise of this discretion makes it clear, however, that the Court should only exercise its discretion under this provision in exceptional circumstances. In addition, the Divisional Court has stated that, for this purpose, hardship does not equate with unfairness: see Windward Co-operative Homes Incorporated v. Shuster, [2007] O.J. No. 967 (Div. Ct.) at para. 34 per Swinton J.