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Honest Elderly Tenant Tries Again to Work Through the Maze of Our Courts

. Potomski v. The Landlord and Tenant Board et al.

In Potomski v. The Landlord and Tenant Board et al. (Div Court, 2022) the Divisional Court considered a non-compliant, but timely, motion for a stay (in part) within a judicial review of an LTB decision (Note: most LTB review activity is by RTA 210 which is by appeal, not judicial review - but there has been much activity lately about using judicial reviews for other than questions of law). The applicant was an unrepresented senior and was obviously trying to abide by the complex procedures of the court but, in the court's view got his procedures wrong [if he appealed he would be temporarily granted the auto-stay under SPPA 25(1)]. The court sent him back to follow then-recently-changed (post-COVID) April 2022 practice directives which add further complexity to an already complex process. Notably, the underlying issue that the applicant lost on before the LTB appeared to be the minor one of whether the applicant/tenant could pay his rent by email transfer as insisted by him, as opposed to cheque or money order as insisted by the landlord.

The case suggests a situation of the court system creating yet further additional barriers to a sincere but unrepresented senior applicant who had throughout the intention to pay rent and to 'be heard' by the court. That such a litigant found themselves further stymied by procedure in a clear case of the triumph of form over substance, gives rise to serious questions about whether justice can be done for unrepresented vulnerable parties in our highly complex and information-atomized court system. A colleague of mine recently described our organization of law as 'obscurantism', and that seems fair to describe the root problem here, despite good judicial intentions.

LTB Awards Paltry General Damages for Illegal Lock-out

. Beseiso v. Presendieu

In Beseiso v. Presendieu (Div Court, 2022) the Divisional Court considered the amount of general damages awarded by the LTB for illegal lock-out. The case (and cases cited) are noteable for the low quantum awarded ($5,000 ordered in this case, but $2,500 deemed average) - amounts that some landlords may view as an acceptable 'cost of business' in getting rid of an unwanted tenant. It's hard to imagine these low volumes being awarded in a Superior Court lawsuit, which it is entirely possible to bring in similar future cases [under the RTA 207(2)] [paras 6-11].

Latest Guide:

Judicial Review (Ontario) Legal Guide (22 August 2022)

Administrative Law Is Second-Class Law

In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual (ZOOM) eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but by excluding the separate tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting a tenant to cross-examine on direct examination that they had been excluded from hearing [para 32]. The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals.

As the court recognized in the presently desperately harsh rental market in Canada today:
The right to be heard is particularly important in the context of the Landlord and Tenant Board because housing decisions can have a profound impact on all aspects of an individual’s life.
Most tenants don't have the knowledge or resources to commence a s.210 Divisional Court appeal, these were among the lucky few that did (one tenant was represented, the other not). How many others have 'fallen through the legal cracks'? Meanwhile, corporations suing other corporations for their millions get the full natural justice procedural rights that our legal system can avail itself of at public expense in the traditional courts. What's wrong with this picture?

Disturbing Divisional Court Tenancy Case

This is a disturbing case from the courts on 13 April 2022. By all appearances the self-repped appellant was unfamiliar with the practice from the Browne v Dunne rule (UK, 1893) that you first have to 'put' your intended contradictions to a witness before you can call evidence to impeach them - that's why she couldn't have her evidence admitted. Instead the crucially important issue of whether her rental was governed by the RTA or not went against her (again), leaving her with the close-to-zero rights of a licensee or 'unauthorized occupant': Guillaume v. Barney Rivers Investments Ltd. (Div Ct, 2022).

Latest Guide:

Civil Appeals (Ontario) Legal Guide (22 August 2022)

Important Land Lease and Trailer Park Case

In White v Upper Thames Conservation Authority (Ont CA, 2022) the court affirmed that when the Residential Tenancies Act (RTA) applied to a land lease (and necessarily a trailer park) tenancy that provisions that attempted to seasonally restrict occupancy were void under the non-waiver provisions of the Act.

Judge Gets Caustic About Excess Legislation

[36] In Canada (National Revenue) v. McNally, 2015 FCA 248 at paragraph 5, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the Court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.” [SS: it's Stratas JA (who else?), quoted by McWatt A.C.J.S.C.J.]
Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board (Div Ct, 2022)

Latest Guide:

Social Housing (Ontario) Legal Guide (23 November 2021)

Latest Guide:

PAWS (Provincial Animal Welfare Services Act) Legal Guide (01 October 2021)

Self-Representer Considering Appeal? Read this.

. Narwhal International Limited v. Teda International Realty Inc.

In Narwhal International Limited v. Teda International Realty Inc. (Ont CA, 2021) the Court of Appeal usefully summarizes the limitations of an appeal that are often misunderstood by self-representers:
[14] Unfortunately, the appellant misunderstands the function of an appellate court. It is not this Court’s responsibility to conduct a second trial. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. A palpable and overriding error is an “obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo v. MacLaren Art Centre, 2014 ONCA 526, [2014] O.J. No. 3242, at para. 39. It has also been said that:
A palpable error is one which is clear to the mind or plain to see, so obvious that it could be easily seen or known or readily or plainly seen. An overriding error is one which had a sufficiently decisive effect, such that it would justify intervention and review on appeal: 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1.

Latest Update: The Small Claims Filing and Issuing Portals

Ch.6, s.10. The Filing and Issuing Portals (SCCES and SCCSO) (20 June 2021)

Latest Guide:

Motor Vehicle Dealing (Ontario) Legal Guide
(20 June 2021)


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