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RTA - Fairness. Kizemchuk v. 60 Montclair Limited
In Kizemchuk v. 60 Montclair Limited (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal.
Here the court characterizes procedural fairness before the LTB:[12] Proceedings before the Landlord and Tenant Board require a high level of procedural fairness because the stakes are very high when a landlord is seeking to evict a tenant, particularly long-term tenants like Mr. and Mrs. Kizemchuk. While the Board is entitled to hold relatively informal, expeditious hearings, tenants have a right to know the case against them and they have a right to be heard: Residential Tenancies Act, 2006, s. 183. The proceedings before the Board must also comply with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. For example, the parties are entitled to reasonable notice of the hearing. They have a right to be represented. They have a right to adduce relevant evidence and examine witnesses. And they have a right to a written order and written reasons, upon request. Having said that, the Board’s duty to ensure the proceedings are fair does not detract from its broad discretion to control its own process. . Fialho v. Hazelview Properties
In Fialho v. Hazelview Properties (Div Court, 2024) the Divisional Court dismissed a s.210 RTA appeal, here where the party's had entered into a s.78 ex parte consent order for the payment of rent arrears.
Here the court comments on the high degree of procedural fairness merited in RTA proceedings:[29] Proceedings before the Landlord and Tenant Board do require a high level of procedural fairness because the stakes are very high when a landlord is seeking to evict a tenant, particularly a long-term tenant on a fixed income like Ms. Fialho. The proceedings must also comply with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. For example, the parties are entitled to reasonable notice of the hearing. They have a right to be represented. They have a right to adduce relevant evidence. And they have a right to a written order and written reasons. If the Board failed to afford a party procedural fairness, that would be an error of law that falls within this court’s jurisdiction: Shapiro v. Swingler, 2021 ONSC 6191 at para. 25. . Wright v. Hardit
In Wright v. Hardit (Div Court, 2024) the Divisional Court dismissed an RTA s.210 'persistent payment of rent' [RTA 58(1)] appeal, here in the context of a pre-eviction s.29 (flood) repair application and a s.82 rent-withhold tactic to pressure the LL into making repairs.
On appeal the tenant argued that the hearing of the LL's eviction application before, and separately from, the repair application - even though the latter was filed first and was integral to the rent-withhold tactic, was procedurally unfair (which the court held to be a question of law):[6] The Member found as a fact that the tenant had been late nineteen out of the twenty months and noted that there was no evidence to the contrary. The Member therefore found that there had been a persistent failure to pay rent when due. The Member considered relief from eviction under s. 83 of the RTA, including not only the tenant’s deliberate withholding of rent but also her personal/family circumstances, and gave a short postponement of the eviction.
[7] On review, the Member noted that the hearing recording showed that the parties were aware of the issues to be determined and exercised their rights to be heard on those issues. The Member noted the tenant’s evidence at the hearing and found that there was ample evidence that the tenant had been persistently late. The Member also found that the Decision under s. 83 fell within a reasonable range of outcomes.
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[11] The tenant has not shown that the scheduling in this case was unfair. It was within the LTB’s discretion and arose in the context of alleged (and ultimately proved) substantial arrears of rent. Further, the tenant could have, and did not, bring a motion to have her applications heard together with the landlord’s.
[12] With respect to the arrears application being heard separately from the application based on persistent late payment, the RTA permits the two different types of applications and does not require that they be heard together. Further, the Member expressly considered this Court’s decision in Tataw v. Minto Partner L.P., 2023 ONSC 4238, in which the Court disagreed with the submission that it was unfair to bring separate applications for arrears of rent and late payment: at para. 13. The Court held that these two types of applications were related but were different problems with distinct processes that usually lead to different remedies: at paras. 14, 19.
[13] It was not procedurally unfair for the LTB to hear the landlord’s application separately, nor was it procedurally unfair to refer to the prior LTB decision about arrears in the Decision. The tenant participated fully in the prior application. . Wright v. Lallion
In Wright v. Lallion (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal on fairness grounds, here where the tenants confused the hearing dates due to dual applications being brought:[11] The LTB has the authority to control its own process, and to do so efficiently, provided that it is also fair. The requirements for fairness are context-specific, including due regard for the LTB’s procedural choices. The other relevant factors that inform what procedural fairness will require include the importance of the decision to the individuals affected by it and the legitimate expectations of the persons challenging the Decision. In this case, those persons submit that they expected, and fairness required, a hearing in which they could participate. . Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court considered the Baker 'importance of decision' issue, here in an LTD context:[19] This court has found that procedural fairness before the LTB is at the higher end of the spectrum of procedural fairness because of the high stakes for all parties, among other things: Shapiro v. Swingler, 2021 ONSC 6191, [2021] O.J. No. 4832 (Div. Ct.), at para. 39. While the Respondent submits that an unauthorized occupant does not have the same entitlement to procedural fairness as a tenant, s. 183 of the RTA states that “all persons directly affected by the proceeding [are to be given] an adequate opportunity to know the issues and be heard on the matter” (emphasis added). Moreover, the very issue of whether the Appellant was an unauthorized occupant or tenant was one of the issues to be determined in the proceeding. . Carr v. Brown
In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual 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 excluding the tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting the tenant's 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. The entire case is an example of how far administrative law has generally degraded justice in Ontario.
. Schram v. Thompson
In Schram v. Thompson (Div Court, 2022) the Divisional Court held that the Baker 'fairness' importance standard for RTA matters was high:[33] The adjudication of residential tenancy disputes requires a level of procedural fairness "at the higher end of the spectrum": Baker v Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), at paras 28, 30, 4547; Shapiro v Swingler, 2021 ONSC 6191 (Div. Ct.), at paras. 39-42. The right to be heard is a “fundamental precept of our system of justice": See, Duncan v. Toronto Community Housing Corp, 2015 ONSC 4728 (CanLII) at para 2.
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