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RTA - LTB Record. Steubing v. Drewlo Holdings Inc.
In Steubing v. Drewlo Holdings Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenant's RTA s.210 appeal, here from "a Motion to Set Aside Order ... [which] terminated the tenancy ..." and the subsequent dismissed LTB review.
This is an RTA s.78(11) non-payment case [See 'Enforceable-Order-to-Eviction "Catch-Up Payment" and Tenant's One-Time Motion to Set Aside Eviction Order' - http://www.isthatlegal.ca/index.php?name=termination_non-payment.tenant_law_ontario#Enforceable-Order-to-Eviction%20Catch-Up%20Payment%20and%20Tenant's%20One-Time%20Motion%20to%20Set%20Aside%20Eviction%20Order].
Here the court considers the making of a record of the LTB hearing:Lack of a recording of the proceedings
[48] The LTB’s Rules of Practice contemplate that hearings will be recorded "if circumstances permit" and that "most LTB hearings will be recorded." Notwithstanding this, the hearing in this case was not recorded and no transcript can be obtained.
[49] Courts have repeatedly expressed concern about the failure of the LTB to record its hearings. No explanation has been provided by the LTB for the failure to produce a record of the hearing in this case. However, the failure to provide a recording is not, by itself, a breach of procedural fairness: Saunders v. Nkemdirim, 2018 ONSC 6642 (CanLII), at para. 40; Collett v. Piasecki, 2005 CanLII 36465 (ON SCDC), at para. 4.
[50] There is no statutory or common law requirement for a tribunal to produce a recording of its proceedings capable of generating a full transcript. But, if there is no transcript, and proper appellate review is compromised, this can be the basis for the reviewing court to order a new hearing. However, as the Hearing Member accurately summarized the evidence and made clear findings of fact based upon that evidence, full appellate review is possible notwithstanding the absence of complete hearing recording: Billion v. Vaillancourt, 2016 ONSC 5820 (CanLII), at para. 7.
[51] In the present case, the ability of the Court to review the decision is not undermined as there is an adequate record of what occurred before the LTB after the recording ended and no dispute that Duty Counsel asked to add something after the parties had concluded their submissions. The lack of a transcript only makes it impossible to consider the merits of an appeal where there is inadequate factual analysis in the reasons to compensate for the lack of a transcript. In the present case, the Hearing Member provided detailed and sufficient reasons for denying the Appellants’ motion.
....
[54] Gaps in the recordings of hearings do not result in a breach of procedural fairness unless there is a serious possibility that the appellant was deprived of a ground of appeal: Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 S.C.R. 793 at paras. 77, 81 - 84. That is not the case here.
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