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RTA - Non-Participation. Gloczi et al v. Dupont/Lansdowne Holdings Inc.
In Gloczi et al v. Dupont/Lansdowne Holdings Inc. (Div Court, 2024) the Divisional Court considered an issue of non-participation at an LTB hearing:[3] ... The Board refused the request to review because it concluded it was “highly improbable” the tenants did not receive any of the correspondence sent by the landlord and the Board about the hearing. ...
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Did the Board err by placing an unfair burden on the tenants to prove they could not participate in the proceedings?
[18] The tenants submit the Board erred by placing a burden of proof on the tenants beyond the balance of probabilities. This was because, in their submission, they were required to prove a negative, which was that they did not receive the documentation.
[19] I disagree with this submission. The onus was on the tenants at the review hearing. The LTB Rules of Procedure allow the Board to grant a review where the order contains a serious error, or where a party was not reasonably able to participate in the proceeding. The onus is on the requestor to demonstrate they were not reasonably able to participate. The LTB’s interpretation guideline for reviewing an order provides guidance on the types of information and evidence that should be included in the request. In general, the request must "provide a detailed explanation why the requestor was unable to participate in the proceeding and satisfy the LTB he or she genuinely intended to participate."
[20] Here, the Board weighed the testimony of the tenants against the written record of multiple letters and notices that appeared to have been sent to them. It was not persuaded by Ms. Glonczi’s explanation about the missing key. This was not imposing a higher burden on the tenants but weighing all the evidence and arriving at a conclusion on the balance of probabilities. There was no error of law in the Board’s approach. . Massoumi v Manos
In Massoumi v Manos (Div Court, 2024) the Divisional Court allowed a tenant's RTA appeal, here on fairness grounds that arose from a scheduling of the tenant's surgery shortly before the LTB hearing. The LTB hearing was dismissed against the tenant as abandoned on their non-attendence, and the tenant's reconsideration was similarly dismissed. The appeal was against the reconsideration hearing, and turned largely on the quality of the medical letters that the tenant submitted before the LTB:[10] On review, the question was whether the Tenant had reasonably been able to participate in the hearing. In keeping with the predicted recovery time in the third medical letter, the Tenant was present for the review hearing. On the impact of the surgery, the reviewing Member focused on the absence of evidence that the Tenant “attempted to ensure” that the surgery would not conflict with the hearing and dismissed the review of the Tenant’s application. The reviewing Member granted the review of the Landlord’s application because the Landlord admitted that there were errors in his evidence.
[11] The LTB must not only adopt the most expeditious method of determining the questions that arise before it but also do so in a manner that affords the parties with an adequate opportunity to be heard (s. 183, Residential Tenancies Act, 2006, S.O. 2006, c. 17). I find that the Tenant was not provided with an adequate opportunity to be heard and was therefore denied procedural fairness. Other relevant factors were considered, but the Member who dismissed the Tenant’s application superficially rejected the medical evidence, which was the basis for the rescheduling request. I agree that it was important that the hearing date was peremptory, but a current significant medical problem could provide a reason that the hearing should nonetheless be rescheduled, depending on the circumstances.
[12] Here, the third letter directly addressed the LTB’s reason for rejecting the first request to reschedule due to the surgery. It was unfair to superficially reject that opinion as “speculation” because it came from a physician connected to a different hospital and referred to an earlier medical problem as well as the surgery. And it appears that the reviewing member simply accepted that conclusion.
[13] I do not suggest that an adjudicator must always accept a medical opinion. Medical documentation must be examined in context and may properly be found insufficient. That is what happened in response to the earlier request to reschedule. But the third letter, from a treating physician, was a specific response to the deficiency addressed in the earlier ruling. It addressed that deficiency and provided the needed background for the opinion.
[14] I therefore conclude that the ruling on the Application Decision was reached in a manner that was procedurally unfair, resulting in the dismissal of the Tenant’s application. Since it was not corrected on review, that decision is also undermined.
[15] The appeal is granted. The Tenant’s application shall be remitted back to the LTB for a hearing. The Landlord shall pay costs of the appeal fixed at $1,000 all inclusive. . Jedadiah Drummond v. Ridgeford Charitable Foundation
In Jedadiah Drummond v. Ridgeford Charitable Foundation (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal against a decision dismissing "his request to extend the time to review an eviction order".
Here the court considers the appellant's non-participation at an administrative hearing:[19] The Tenant does not argue that the Board made an error of law in the eviction order. The Tenant submits that he is appealing the eviction order due to a lack of procedural fairness, in that the hearing proceeded even though he was not present.
[20] On February 26, 2023, two days before the hearing of the application, the Tenant submits that he sent an email to the Board advising that he was not available on February 28, 2023. He did not provide any reason for not being available.
[21] The hearing proceeded on February 28, 2023, in accordance with s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which provides that where notice of a hearing has been given to a party in accordance with the SPPA, if a party does not attend, they may proceed in the absence of the party. The Board found that the Tenant had received proper notice of the hearing and they proceeded with the hearing in his absence.
[22] Further, the Landlord and Tenant Board’s Rules of Procedure (the “Rules”) govern all matters before the Board. Rule 21.1 provides that requests for rescheduling can only be made with the consent of all the parties, and not less than five days before the scheduled hearing date. The appellant did not meet this requirement.
[23] Rule 21.2 of the Rules states that notwithstanding the requirements of r. 21.1, a request to reschedule a hearing may be granted if the Board is satisfied that it was not reasonably possible for the party making the rescheduling request to comply with r. 21.1. Rule 21.8 provides relevant factors that the Board should consider in a request to reschedule a hearing, including reasons for the adjournment.
[24] As set out in Kalin v. College of Teachers (2005), 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.), at paras. 30-31 (adopted in Thomson v. Sisters of St. Joseph, 2010 ONSC 2337, at para. 13):[30] Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. Generally speaking, decisions made in the exercise of discretion are entitled to considerable deference, provided the discretion is exercised judicially and in accordance with principles of fairness and natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560 at para 18; Baker, supra, at para 53.
[31] A Tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party: Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON SC), 99 D.L.R. (3d) 165 (Ont. Div. Ct.). However, in exercising its discretion as to whether to grant an adjournment, a Tribunal is not permitted to act arbitrarily. The tribunal may take into account the public interest and the interest of the tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means: Re Flamboro Downs, supra; Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134 (1993), 1993 CanLII 9380 (ON SCDC), 103 D.L.R. (4th) 437 (Div. Ct.); Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 5198 (Div. Ct.) , aff’d [2003] O.J. No. 4233 (C.A.).
See also Wei, at para. 9. [25] However, the Tenant provided no reason to the Board for his request to adjourn the hearing, other than stating in an email that he wanted time to prepare. As set out in the Board’s reasons, “There was no record of a request to adjourn the hearing.” The Board followed its own procedure and exercised its discretion based on the information (or lack of information) before it. I see no reason to interfere with the Board’s exercise of its discretion. I do not find there was a lack of procedural fairness. . Wright v. Lallion
In Wright v. Lallion (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal, here where the tenants confused the hearing dates due to dual applications being brought.
Here the court located a breach of procedural fairness where the LTB denied a reconsideration hearing (ie. the Board denied the reconsideration at the summary phase) on this issue:[12] “Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.”: Zaltzman v. Kim, 2022 ONSC 1842 (Div. Ct.), at para. 3, quoting King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ON SCDC). In King-Winton, the tenant wrongly believed the hearing was on a different date, even though the tenant had received proper notice. This Court granted the appeal and referred the matter back for a hearing.
[13] Having regard for the entire context of this particular case, I conclude that it was procedurally unfair to deny the review request at the preliminary stage, without a hearing. The central issue on the review was the denial of the right to be heard at the original hearing. Given the explanation put forward, and the Member’s finding about confusion, the LTB should have proceeded to a review hearing rather than effectively denying the tenants a hearing twice.
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