Standard of Review (Appeal)

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.