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RTA - Landlord and Tenant Board. Kizemchuk v. 60 Montclair Limited
In Kizemchuk v. 60 Montclair Limited (Div Court, 2024) the Divisional Court considers an adjournment before the LTB:[33] A decision to grant or deny an adjournment request is a discretionary decision: Riddell v. Huynh, 2019 ONSC 2620 at paras. 43-44 (Div. Ct.). ....
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[35] The Board is required to accommodate the needs of all parties in accordance with the Human Rights Code, including based on age: Human Rights Code, ss. 1 and 47(1). In some cases, granting an adjournment may be an appropriate and necessary accommodation: Beaux Properties Management Co. v. Shomer, 2019 ONSC 6170 at para. 2. In this case, however, the Board found that Mr. and Mrs. Kizemchuk had not established that they required accommodation based on their age. . Verbakel v. Prokopiv
In Verbakel v. Prokopiv (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal, here on fairness grounds where the appellant "shared with others", and an adjournment scheduling "to a date upon which her legal representative (not counsel on appeal) could attend" was denied. As a consequence, the "hearing proceeded without the Appellant having legal representation":[42] The purpose of the RTA as set out is s. 1 is “to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.” The Board provides the adjudicative function.
[43] Section 183 of the RTA provides that the Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter. See also the Board’s Rules of Procedure at Rule 1.6(m) and (p).
[44] The Board functions to adjudicate disputes and to provide the parties with a right to be heard while maintaining its right to control its process. The scheme favours expeditious and informal resolution of disputes through adjudication. The issue to be adjudicated is of the utmost importance to the parties as it concerns housing of the tenant and the landlord. Here, the Appellant faced eviction and the Respondent sought to reclaim use of his property. Appeals from the Board are limited, so the degree of procedural fairness required is enhanced. . Govedaris v. McIlquham
In Govedaris v. McIlquham (Div Court, 2024) the Divisional Court dismissed a procedural fairness argument over the scheduling of the hearings of two LTB applications on the same day (though the second became moot as a result of the decision on the first):Was it a breach of procedural fairness to hear both applications together?
[19] There was also no breach of procedural fairness in the Board’s decision to proceed with both applications at the September 27, 2023 hearing.
[20] Section 183 of the RTA directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.” In this case, as the Board member noted, the disposition of the jurisdiction application could have been determinative of the application alleging the appellant was illegally locked out. If, as it found, the RTA did not apply, the Board did not have jurisdiction to determine the issues in the other application.
[21] In deciding to hear the applications together, the Board member did not err by failing to consider prejudice to the appellant. During the hearing, the appellant advised the Board member that he had asked the Board to join the two applications. The appellant also did not object to the Board proceeding with both applications on the date of the hearing.
[22] In all the circumstances, the decision to hear the two applications together was a reasonable exercise of the Board’s discretion to determine the appropriate procedure. It did not constitute a breach of procedural fairness. . Wright v. Hardit
In Wright v. Hardit (Div Court, 2024) the Divisional Court considered RTA s.183 ['Expeditious Procedures'] and generally a tribunal's authority to control it's process:[10] The level of procedural fairness required by a tribunal is context-specific. As set out in the s. 183 ['Expeditious procedures'] of the RTA, the LTB is obligated to adopt the most expeditious method of determining the questions arising in a proceeding that affords the parties with an adequate opportunity to know the issues and to be heard. It is “well settled that an administrative tribunal such as the [LTB] is entitled to control its own procedure and is entitled to deference on matters requiring the exercise of discretion, such as scheduling”: Riddell v.Huynh, 2019 ONSC 2620 (Div. Ct.), at para. 43. . Jedadiah Drummond v. Ridgeford Charitable Foundation
In Jedadiah Drummond v. Ridgeford Charitable Foundation (Div Court, 2024) the Divisional Court considered the extent to which the LTB has control over it's own process:[16] In hearing the appeal, the court must consider that the Board is a specialized tribunal, and the legislature has deliberately limited appeals from its decisions to, inter alia, ensure a process that is streamlined, timely and cost-efficient.
[17] The Board is entitled to control its own process and its procedural choices are entitled to deference. This is because administrative tribunals, including the Board, have experience and expertise balancing the need to ensure fair participation by all parties with the need to ensure that the issues are dealt with in a timely and efficient way: see Wei v. Liu, 2022 ONSC 3887, at para. 9. . Fuamba et al. v. Irving et al.
In Fuamba et al. v. Irving et al. (Div Court, 2024) the Divisional Court allowed an appeal is a messy real estate transaction that in part had a fresh tenancy aspect (though rent amount was ambiguous) and ended up before the LTB on non-payment issues. The case is interesting as this court 'kicked' it all back to the Superior Court under the RTA s.202(1) ['Real Substance of Transaction'] and s.207(2) ['Superior Court Jurisdiction'] provisions.
Here the court considers the elements of a 'tenancy agreement', that the RTA "does not confer jurisdiction on the Board to determine whether there is a valid tenancy agreement" - and thus the 'kicking upstairs' to the Superior Court of the entire case:[12] The RTA does not confer jurisdiction on the Board to determine whether there is a valid tenancy agreement. The existence of a tenancy agreement is presumed: see O’Brien v. 718458 Ontario Inc. (1999), 25 R.P.R. (3d) 56 (Ont. Gen. Div.), at para. 19; Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 12.
[13] A valid tenancy agreement must contain certain basic elements. In 3670490 Canada Inc. v. Charles Boushey Limited, [2000] O.J. No. 4861 (S.C.), that court stated that a formal written lease agreement is not required under the Statute of Frauds, however, the essential elements which included rent had to be agreed upon. At para. 31, Polowin J. sets out the essential elements that are required to support a valid lease agreement:The case law also sets out the essential elements of a valid lease agreement. To be valid, an agreement for a lease must show:
(1) the parties;
(2) a description of the premises to be rented;
(3) the commencement of the term;
(4) the duration of the term;
(5) the rent (if any); and
(6) all the material terms of the contract not being matters incident to the relation of landlord and tenant, including any covenants, exceptions or reservations. (see for example Londos Investments Ltd. v. 353573 Ontario Ltd., [1988] O.J. No. 7 (Ont. H.C.). ....
[39] In the end, the tenants accepted that it was their intention to become tenants and that once the property was sold, that they were tenants. However, the terms of their tenancy were not agreed to by the parties and the Board erred in law by coming to the conclusion on the legal rent in the absence of proper admissible evidence that such an agreement was reached. As previously stated, the Board’s conclusion is tantamount to a finding that the tenancy agreement was for the legal rent to be whatever amount the landlords put in their draft lease. It was an error of law for the Board to have failed to fully explore this issue and come to the illogical conclusion that the terms of the draft lease governed simply because the tenants did not move out of their 15-year-old family residence. This was all due to the landlords’ failure to properly set out the terms of the tenancy in advance of the closing date. The Board’s conclusion of a valid tenancy agreement at a legal rent of $5,500 per month was based on an absence of admissible evidence and illogical factual findings when considering the evidence before the Board.
[40] I come to this conclusion with the understanding that the Appellants have been residing in the Respondents’ residence for almost three years. Even when accepting the Appellants’ claimed rental rate, arrears of rent would be in excess of $60,000. It is for this reason that the entire dispute must be put in the hands the Superior Court of Justice given that the full picture surrounding these various transactions and the various actors involved must be considered together for adjudication purposes.
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Conclusion
[45] For the reasons set out herein, the impugned decisions are set aside as I allow the appeal on the following grounds:a. The Board did not have jurisdiction over the matters at issue and the issues should have proceeded before the Superior Court of Justice as part of civil action no. CV-23-93847.
b. The Board erred in determining that there was a valid tenancy agreement with a legal rent of $5,500 per month. In doing so, the Board failed to discharge its statutory duty pursuant to s. 202 of the RTA.
c. The Board erred by making judgment against Faith Fuamba, Naomi Fuamba and Joyce Fuamba. [46] Furthermore, for the reasons stated herein, issues raised in this dispute are more properly dealt with as part of the civil action no. CV-23-93847. This includes the obvious issue of the Appellants obligation to pay some rent. .... . Shearer v. Oz
In Shearer v. Oz (Div Court, 2024) the Divisional Court dismissed an appeal in an extended RTA struggle that continued years after the tenant had "moved out of the house about eighteen months later [SS: after the tenants taking possession], on July 26, 2019".
Here the court gives a reality check on the limited services that parties should expect from the LTB, as a high-volume administrative tribunal:II. Sufficiency of Reasons
[56] The Board is a high-volume tribunal which must manage its resources carefully. The Tenants complain bitterly about delays they experienced in their own case. If every LTB file consumed the resources dedicated to the disputes between these parties, the process before the Board would grind to a standstill. The Board provided extensive reasons for its decision and thereby reasonably explained why it decided as it did.
[57] In particular, the Board was not required to wrestle minutely with all aspects of the evidence on the issue of heat loss and insulation. It accepted the evidence of the only “neutral third party”, and the conclusions it reached based on this evidence are supported by evidence before the Board. . Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court considered the 'balancing' of RTA 183 ['Expeditious procedures'] with the need for procedural fairness:[42] I note that while the LTB Rules and case law recognize the need for discretion and flexibility for the Board to conduct hearings in an expeditious manner, efficiency is not to be divorced from the requirement to conduct hearings fairly. As this court held in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083, [2019] O.J. No. 1620 (Div. Ct.), at para. 41:[41] Section 183 of the Act requires the Board to adopt the “most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter” (emphasis added). Thus, the Act requires the Board to balance the need for expedition with the need for procedural fairness. . Sutton v. Patterson and Morrow
In Sutton v. Patterson and Morrow (Div Ct, 2021) the Divisional Court decided that the LTB has jurisdiction to decide whether occupants owned land lease cottages in order to decide their treatment under the RTA, but that such a finding did prejudice the ownership issue for non-RTA purposes (ie. issue estoppel did not apply):[23] Thereafter, the Board issued an Interim Order in which it rejected the argument that it lacked jurisdiction to determine ownership. The Board found it necessary to determine whether the rental units consisted of just the land, or the land and the cottages, in order to dispense with the applications. More specifically, because the Appellant asserted that he required the cottages for his children’s use, the Board found it could only evict if the “rental units” at issue were the cottages. Alternatively, if, as the Respondents asserted, they owned the cottages, then the Board could not order eviction because the “rental unit” was the land or site on which the cottages were situated.
[24] As a result, the Board gave the parties the opportunity to make additional written submissions and present evidence on the issue of ownership. In their submissions, none of the parties asserted that the Board lacked jurisdiction to determine ownership because it had already made a decision that it did not have jurisdiction to decide this issue, nor did anyone object to the Board’s direction that the second part of the hearing on the issue of ownership be conducted in writing as opposed to orally. [25] After considering all of the evidence, the Board, in preferring the Respondents’ view on the subject of ownership, found it more likely than not that the cottages were each a “land lease home”, which the Board was entitled to do.
[26] The RTA gives the Board exclusive jurisdiction to determine all applications under the Act and gives it the authority to hear and determine all questions of fact and law with respect to all matters within its jurisdiction, specifically:168(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
174 The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act. [27] The Appellant filed an application under s. 48(1) of the RTA. It is uncontested that the Board had exclusive jurisdiction to determine it. By virtue of ss. 168(2) and 174, in so determining, the Board had authority to hear and determine all questions of fact and law with respect to the application.
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[33] In Warraich v. Choudhry, 2018 ONSC 1267 (Div. Ct.), at paras. 41 and 57 (“Warraich 2”), the Court rejected the argument that the Board erred in law or exceeded its jurisdiction in determining that the Appellant was not a co-owner of the property. Rather, the Court found that the Board made its determination for the purpose of deciding whether the Appellant was a “tenant” within the meaning of the RTA and not to address any rights or obligations flowing from an ownership interest. Determinations made for such a limited purpose are not binding on a court and a party is not prejudiced.
[34] As of the date of this hearing, there was no extant application initiated in the Superior Court to determine the ownership issue. Rather, the Appellant chose not to seek court determination of ownership for reasons that were not explained in the record. In any event, in my view, the Appellant is not prejudiced from prosecuting the ownership issue in other contexts because the finding of the Board was made solely for the purpose of determining what constituted the “rental unit” within the meaning of the RTA. . Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa
In Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa (Div Ct, 2022) the Divisional Court reviews the RTA and SPPA relationship regarding hearings:[22] All proceedings before the Board are governed by the Statutory Powers Procedure Act, [5] (“SPPA”). Section 25.01 empowers the Board to determine its own procedures and practices. When the Board determines the hearing format, it must comply with s.52(2) [sic: 5.2(1)] of the SPPA and ss.2 and 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020.[6]
[23] The RTA directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter”.
[24] The Board has issued Interpretation Guidelines, one of which provides that “[w]here the member is satisfied that the party has received sufficient notice of the hearing and has been provided with an adequate opportunity to prepare their evidence and submissions, summons witnesses and obtain counsel ahead of the hearing date, an adjournment is not usually granted unless there are exceptional circumstances”. . Reisher v. Westdale Properties [for numbered case cites see main link]
In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court reviews the legislative role of the LTB and reinforces it's high-volume procedures:The Landlord and Tenant Board
[11] Before entering into the analysis of the issues in this appeal, it is worthwhile to consider the role the Landlord and Tenant Board plays within the legislative scheme that addresses the relationship of tenants and landlords. The legislation recognizes that relative power within this relationship favours the landlord. The legislation is designed to bring that foundational aspect of the relationship closer to balance:The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.[9] [12] This is accomplished in part through substantively favouring tenants, as in s. 83 where the Board is required to refuse an order of eviction unless, having regard to all the circumstances, it determines that it would be unfair to refuse to do so. But as already noted and as the Act also prescribes, the adjudication of disputes is to be provided within the framework of regulation that attempts to balance the rights of tenants and landlords. Absent this prescription the position of landlords would be superior to that of most tenants. As a general rule, landlords are more likely to have the resources and ability to retain counsel and whatever other experts are required. Many tenants cannot. A loosening or broadening of the rules generally applicable in court, applicable to both sides, serves to bring increased balance to the way in which these disputes are adjudicated and resolved. It is the Landlord and Tenant Board that sets the rules that govern the procedures and practice applicable to the hearings it conducts.[10]
[13] The need for a broader, less structured approach, is underscored by the nature of the task. The Landlord and Tenant Board, appropriately describes itself as a high-volume tribunal. It received 61,586 applications and 2,452 requests for review in the 2021-2022 fiscal year. These numbers require it to adopt procedures that, while providing an adequate opportunity to understand the issues and for both parties to be heard, allows for expedition. Vavilov notes that not all Boards can be expected to produce reasons with the degree of exactness required of the courts:Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice,” and reviewing courts must remain acutely aware of that fact.[11]
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The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.[12] . Daly v. Ontario (Landlord and Tenant Board)
In Daly v. Ontario (Landlord and Tenant Board) (Ont CA, 2023) the Court of Appeal considered the 'sue-ability' of the LTB (an administration tribunal) and the Crown itself, both in the context of an lawsuit by a aggrieved tenant:[6] In her submissions, the appellant does not directly address either of the grounds upon which the motion judge reached his decision. In any event, there is no error in the motion judge’s conclusion on either of those grounds. The LTB is not a suable entity. Moreover, s. 232(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 makes clear that no proceeding for damages can be commenced against members of the LTB who have exercised their duties in good faith. These principles have been confirmed by this court: Raba v. Landlord and Tenant Board, 2014 ONSC 2599, at paras. 5-10, aff’d 2014 ONCA 864, at para. 1. The appellant’s attempt to distinguish Raba does not succeed. While we note that the appellant raised the constitutionality of s. 232(1) of the Residential Tenancies Act in her fresh as amended statement of claim, that challenge was not properly brought, it was not dealt with by the motion judge, and it is not the subject of this appeal.
[7] Similarly, the Crown is not liable for anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 9(2)(b). The relationship between the Crown and members of quasi-judicial boards and tribunals exercising an adjudicatory authority derived from statute is outside the ambit of vicarious liability: see Speckling v. Kearney, 2007 BCCA 145, at para. 4. . Zhao v. Chao
In Zhao v. Chao (Div Court, 2022) the Divisional Court (Corbett J, who hears a lot of these appeals), hearing a landlord's appeal, characterized the nature of the LTB and compared it to the Small Claims Court as being suited for people who must either learn it's procedures and self-represent, or otherwise hire representation:[4] All parties attending the Landlord and Tenant Board are expected to become familiar with the process at the Board and the hearing process, to obtain representation if they feel that they are unable to participate in the process without that assistance. In this case, we have the landlord, who owns the unit, and chose to be self-represented rather than to engage a paralegal or lawyer or to obtain advice prior to the hearing, and who then chose to make her own decisions about what evidence to tender at the hearing. This is not a basis to permit the landlord to adduce fresh evidence after the Board’s decision.
[5] The Landlord and Tenant Board is very much like the Small Claims Court in that it has a great many people who are self-represented or are represented by agents who are inexperienced. The process before the Board will be defeated in large part if a party can avoid its failure to bring all of its evidence to the hearing by simply saying that he/she was self-represented, and did not know any better, and so should have a re-hearing on fresh evidence in this court after receiving adverse decision from the Board. In my view, through the exercise of due diligence, this evidence could have been available at the hearing and that in of itself is a complete answer to the application for fresh evidence.
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