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RTA - LTB - Bias. Equity Builders Ltd. et al. v. Landlord and Tenant Board et al.
In Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. (Ont Divisional Ct, 2025) the Divisional Court (mostly) dismissed a multiple-proceeding combination of both LL-initiated JRs and RTA s.210 appeals, here respecting multiple units in a Sarnia apartment building. After a fire "the Chief Building Official for the City of Sarnia issued an order to the Landlord directing that the premises be vacated", followed by a second order several days later restricting access to a lesser number of units. The LL subsequently refused re-entry to tenants not covered by the later less restrictive order, eventually resulting in RTA orders of illegal lock-out for numerous units - and that "the Landlords had substantially interfered with the reasonable enjoyment by the Tenants of their units; and found that the Landlords obstructed, coerced, threatened or interfered with the Tenants".
Here the court considers (and rejects) the LL's argument that the LTB was biased against them:Was the hearing procedurally unfair because the Board “descended into the fray” and was, therefore, biased against the landlord?
[119] The Landlords argue that the Board unfairly interjected during the testimony of the Landlords’ witnesses and interfered with their ability to answer questions. The Landlords also argue that the Board effectively became an advocate for the Tenants by conducting his own cross-examination of the landlord’s witnesses. In effect, the Landlords argue that there was a reasonable apprehension that the Board was biased against them and in favour of the tenants.
[120] We would not give effect to this ground of appeal. We are not satisfied that the Board did anything more than exercise its authority to control the process.
[121] There is a strong presumption that administrative decision makers are impartial: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25; Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174, 171 O.R. (3d) 41, at para. 42. That presumption can only be displaced if the decision maker’s conduct, when assessed in context of the entire proceedings, gives rise to a reasonable apprehension of bias: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 114.
[122] Decision-makers are not expected to be passive during a hearing: Brouillard v. The Queen, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at 44. At the same time, if a decision maker repeatedly interrupts the evidence, extensively cross-examining key witnesses or directly challenges a witness’ testimony during the hearing, that could give rise to a finding that the decision maker is no longer objective or impartial: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v S.V.D., 2016 ONSC 350, at para. 128. The assessment of whether a decision maker’s conduct creates a reasonable apprehension of bias must, therefore, be context-specific and fact-specific: Francophone School Board, at para. 26.
[123] Here, the landlord complains that the Board interfered with Mr. Singh’s ability to answer questions. On occasion, the Board did ask Mr. Singh to answer the questions he was asked. This was, however, after Mr. Singh repeatedly gave answers that were not responsive to the questions posed by the landlord’s counsel and offered his opinion on irrelevant issues. For example, at one point Mr. Singh was asked about how a specific tenant responded when the landlord asked them to remove their belongings. Rather than answering that question, Mr. Singh gave several answers about how that tenant wanted to be referred to by a different name than was on their government issued identification. The Board tried to redirect Mr. Singh to answer the question that the landlord’s lawyer had asked. A few minutes later, Mr. Singh was asked a question about the clause in the lease agreement used by Equity Builders about tenant insurance. Mr. Singh answered the question but then continued to give evidence about an issue that was not responsive to the question. The Board again reminded Mr. Singh to answer the questions he was asked. The Board said that was the final warning Mr. Singh would get and if he continued to give unresponsive, rambling answers, he would be fined. The Board then gave counsel for the landlord an opportunity to speak to Mr. Singh privately so counsel could explain the caution to Mr. Singh and give him instructions about how he to respond to question.
[124] We find that the Board’s interjections during Mr. Singh’s testimony were appropriate. The Board is required to ensure its hearings are expeditious and fair: Rules of Procedure, r. 1.4. To do so, the Board has the express authority to define and narrow the issues, question witnesses, and limit the evidence or submissions on any issue: Rules 1.6(m), 1.6(n) and 1.6(p). The Board’s interjections during Mr. Singh’s testimony were designed to ensure the hearing proceeded expeditiously and remained focussed on the issues the Board had to decide: El Sayed v. Ottawa Community Housing Corporation, 2019 ONSC 3703, at paras. 9-10, Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 O.A.C. 247 at para. 243 and Cannon v. Cemcor Apartments Inc., 2017 ONCA 378, paras. 13-18. This was an extremely complicated matter in which the Board was considering 21 separate applications. The Board was required to control the process to ensure the hearing time was used effectively.
[125] There was nothing unfair about the Board’s cautions to Mr. Singh, particularly considering the Board’s decision to give Mr. Singh an opportunity to speak to counsel in private before continuing with his evidence. The fact that Mr. Singh made comments about feeling constrained in the way he answered questions after the Board’s two cautions does not render the cautions unfair. We are satisfied that Mr. Singh was able to fully answer the questions he was asked after the caution.
[126] The landlord also complains that the Board cross-examined its witnesses, including Ms. Rochon.
[127] The Board interjected during Ms. Rochon’s evidence and asked several questions. There is nothing inherently problematic about an administrative decision maker asking a witness questions. The Board’s Rules authorize the Boards to do so: Rules of Procedure, Rule 1.6(n). In this case, the Board apologized for the interruption and explained that it was trying to make sure it understood Ms. Rochon’s answers and that its notes were clear. The Board asked counsel for the landlord if counsel would prefer the Board to save all its questions for the end of Ms. Rochon’s evidence. Counsel for the landlord said he was “in the Board’s hands.” The Board then asked if either counsel had any concerns about his interventions “from a procedural fairness perspective.” Counsel for the landlord said that he was content with how things were proceeding. Counsel for the Tenants said they were used to Boards taking an active role in the hearings and did not feel the interventions were interfering with his ability to answer questions.
[128] If the landlord truly felt the Board’s interventions were creating an apprehension of bias or unfairness during the hearing, they were obliged to raise their concerns as soon as they arose: Techsavvy Solutions Inc. v. Bell Canada, 2024 FCA 121, at paras. 58-62. Here, counsel for the landlord did the opposite. When asked if the Board’s interventions were causing any unfairness, the landlord’s counsel did not raise any concerns and said they were “content” to carry on with the hearing. Having not raised the procedural fairness issues below, we are not prepared to give effect to these arguments on appeal.
[129] When the record of proceeding is considered as a whole, we are not satisfied the Board’s interventions during the evidence demonstrate a reasonable apprehension of bias.
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