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RTA - Reviews (Reconsiderations)
MORE CASES
Part 2
. Gusain v Arnold
In Gusain v Arnold (Div Court, 2023) the Divisional Court considered the LTB's review (reconsideration) authority, here in a case of non-attendence:[45] The Board has the authority to determine its own procedure and practices and to establish rules and make orders for that purpose, including rules relating to the review of its own decisions: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 21.2, 25.0.1 and 25.1. The Board’s power to review its own decision or order may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding: RTA, s. 209(1).
[46] The Board’s procedures relating to requests to review a Board decision are set out in Rule 26 of the Board’s Rules of Procedure, with additional guidance being provided by the Board’s Interpretation Guideline 8.
[47] As described in Interpretation Guideline 8, the Board’s review process has two stages. The first stage is a preliminary review, which may result in the request being dismissed without a hearing or being sent to the second stage, a review hearing. At the preliminary stage, the reviewing adjudicator decides if the order may contain a serious error or whether the requestor may not have been reasonably able to participate. In either case, the Board may direct a review hearing on some or all the issues raised in the review request and may make interim orders: see rule 26.9(d).
[48] Interpretation Guideline 8 provides specific guidance for determining whether a party was not reasonably able to participate in the proceeding, based on previous Board decisions. Among other things, it states that the Board will refuse review requests where the party’s failure to attend was the result of negligence or it finds no reasonable explanation for the failure to attend.
....
[56] Denying the appellants’ request for review was also consistent with the Board’s guidance in Interpretation Note 8 that it will refuse review requests where the party’s failure to attend was the result of negligence or it finds no reasonable explanation for the failure to attend. In that regard, I note the finding in the review decision, at para. 3, that there was “no reasonable explanation offered to explain [Mr. Gusain’s] negligence.”
....
C. Second review decision
[57] The appellants submit that Board Member Cho breached procedural fairness or otherwise erred in law by denying the second review request since he failed to recognize the procedural fairness and abuse of process issues in the initial T5 decision and the first review decision. Since I have found that there was no breach of procedural fairness or other error of law arising from the prior decisions, this submission fails on that basis.
[58] In any case, rule 20.18 of the Board’s Rules of Procedure provides that the Board will not consider a further request to review the same order or a request to review a review order. As one of the grounds for dismissing the second review request, the adjudicator found that the appellant had not established good cause to derogate for that rule. I see no error in making that determination. . Latham v. Marazzi
In Latham v. Marazzi (Div Court, 2022) the Divisional Court considered the appeal status of an RTA LTB 'review' decision (ie. a reconsideration), where a tenant had not yet sought to appeal a review, only the original LTB termination order (the proceeding was an motion to extend time to file an appeal of the main order, but since it was filed the review order came down and tenant took the position that they were in time to appeal the review decision ):A. Appeal of Review Order
[8] In this case, the review order impacts the analysis of the factors in Enbridge Gas. I reject the Landlord’s submission that the LTB’s decision on the request for review does not constitute an “order.” It is clear from the face of the LTB’s decision that the review order is an order of that tribunal. Further, the Landlord has not provided authority for the proposition that the review order is not appealable to this court. This Court regularly hears appeals from review orders. See, for example: Ali v. Toronto Community Housing Corporation, 2019 ONSC 3627.
[9] The fact that the Tenant still has time to appeal the review order does not render this motion moot. The Tenant still seeks to appeal the original order, which is supported by a separate set of reasons. Still, the review order confirmed the original order, which terminated the tenancy. Rule 63.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the delivery of a notice of appeal from an interlocutory or final order made under the Residential Tenancies Act, 2006 stays, until the disposition of the appeal, any provisions of the order declaring a tenancy agreement terminated or evicting a person.
[10] I do not need to determine whether the review order constitutes “an order declaring a tenancy agreement terminated or evicting a person” pursuant to r. 63.01(3)(a) if the original order is not appealed. I will proceed to address the factors in Enbridge Gas, but, overall, if the Tenant files the appeal of the review order in a timely manner, the justice of the case favours an extension of the time to appeal the original order. This will invoke the stay with respect to both orders.
. Shearer v Oz
1. Overview
The case of Shearer v Oz (Div Ct, 2021) is a prime example of the profound problems with the grafting of SPPA 21.1 administrative 'reviews' (also referred to as 'reconsiderations') onto otherwise sensible Ontario administrative law. Shearer was a Divisional Court judicial review (JR) application of an earlier LTB ruling, which was also appealed to the Divisional Court (under RTA 210, where only "questions of law" may be entertained) and subject of a 'review' under the LTB rules. The appeal was dismissed before the review was decided, and the review was later denied "on the basis of the conclusions reached by the Divisional Court" [para 2]. The JR application was argued - in part - on the basis that there were remaining 'non-legal' issues to be heard (although the JR judge noted that it did "not raise any ground for such a review that was not or could not have been the subject matter of the appeal that has been dismissed [para 2]).
On the filing of the JR application, Corbett J - the court's current workhorse administrative judge who has seen rafts of LTB matters during the COVID crisis (and I'm sure before that) - promptly initiated an RCP R2.1 'frivolous and vexatious' notice the applicants, which is basically a way of saying to them that 'I think this is silly, and an abuse of process, prove me wrong'. He also said that the JR was a 'collateral attack' on the LTB and appeal proceedings outcome that had preceded it.
2. Applicant's Issues
(a) Overview
The court characterized the applicant's arguments (that judicial review was still alive, after the appeal was resolved) as follows [para 4]:(a) An appeal from the Landlord and Tenant Board is restricted to questions of law. They argue that there were procedural errors and unreasonable findings of fact, issues that may only be raised on an application for judicial review. Appeal rights do not foreclose an application for judicial review. [SS: Issue #1 "The Procedural Relationship Between RTA s.210 Appeals and Judicial Review"].
(b) The “review process” before the Landlord and Tenant Board and the appeal process in this court are “coextensive”. Pursuit of an appeal does not foreclose simultaneously or subsequently pursuing a review before the Landlord and Tenant Board. [SS: Issue #2 The Procedural Relationship Between RTA s.210 Appeals and SPPA 21.1 Reviews ] (b) The Procedural Relationship Between RTA s.210 Appeals and Judicial Review
On the first issue ('The Procedural Relationship Between RTA s.210 Appeals and Judicial Review'), the court 'technically' endorsed the proposition that (in an adequate case, which this wasn't) - and given the RTA s.210 restriction on appeals to 'questions of law' - separate appeal and JR proceedings were possible. That is, one could advance the 'legal' issues in a statutory appeal, and any non-legal grounds (ie. issues of fact or mixed fact and law) in a judicial review.
However, what the court definitely distained what it called 'litigation by instalment' [para 5], that is the commencement of the JR [on 23 August 2021] (well) after the appeal had been dismissed [on 04 November 2020]. In part, Corbett J cited for this conclusion the 2020 amendment to the Judical Review Procedure Act which replaced the previous (roughly) six-months laches JR time limit with a new limitation period ["no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occured": JRPA 5(1)]. This amendment is, I'm sure, going to receive much attention in future for it's privative effect on Ontario administrative law.
The triggering event for a JR s.5(1) limitation to start running [ie. "the decision or matter for which judicial review is being sought"] were either the original LTB ruling [on 04 August 2020] or the review decision [on 21 July 2021] - depending on which proceeding was being challenged (and if both are being challenged by way of JR, presumably two court separate applications properly brought). Interestingly, while the review decision was arguably close to the 30-day JRPA limit [review decision on 21 July 2021; JR commencement on 23 August 2021], the court held that the review proceeding was rendered a nullity by the prior Divisional Court appeal dismissal [04 November 2020]. This was even though the LTB was apparently aware of the prior appeal dismissal and ruled on it later anyway [on 21 July 2021]. This new limitation period is what I call a 'soft' limitation, as it may be extended on (a) showing merits to the underlying case and (b) an absense of prejudice [JRPA 5(2)]. The court did not delve into grounds for an extension and held the JR limitation as being spent [para 6].
To summarize on this issue, if a party has both legal and 'other' (fact and/or mixed fact and law) grounds they should advance them simultaneously (or, to use the court's language: 'co-extensively') by both appeal and judicial review, respectively [para 5]:The time to seek judicial review was the same time as to bring an appeal; it is improper to await the results of an appeal and then to commence an application for judicial review in respect to the same decision.
To me this conclusion - and in fact the whole thrust of JRPA s.5(1)'s new limitation - is contrary to the policy underlying the administrative doctrine of prematurity [Volochay v. College of Massage Therapists of Ontario (Ont CA, 2012)], which the Divisional Court has shown no hesitation in applying vigorously:[68] The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.It's obvious that the underlying rationale for the prematurity doctrine is that of avoiding a 'multiplicity of proceedings' [CJA 138], but this 'simultaneity' conclusion - both in the narrower context of the RTA, and in practically all other judicial review Ontario matters - throws a wrench into the works. Remember, the JRPA 30-day limitation triggers on "the date the decision or matter for which judicial review is being sought was made or occurred", a much more definite date that any sort of 'lawsuit as an adequate means' discoverability such as is expressly allowed for in Limitations Act, 2002 [s.5(1)(a)(iv)]. While this JR limitation is 'soft' with respect to extensions, it's 'hard' with respect to the commencement of counting of the limitation period. Note 1: In para 6 the court states: The applicants could have brought an appeal from the review decision of the LTB made in July 2021, although such an appeal would have, itself, been an abuse of process for the reasons I set out below. This quote is useful for the argument that a party can appeal a review decision separately. After all, the RTA states plainly that you can appeal "an order of the Board" [RTA 210]. Conventional (and I think quite sensible) wisdom has been that after you lost at the LTB main hearing and st the LTB review that your next option was an appeal of both of those under RTA 210. But under the court's reasoning you would seem to have to initiate separate appeals of both the LTB main ruling and the review, in order to meet the 'hard' RTA 210(1) 30-day deadline [but see Fernando v Medallion Corporation (Div Ct, 2010)]. Note 2: Also in para 6 the court states:The applicants may not seek judicial review of the review decision without having availed themselves of their appeal rights. This struck me as unjustified. I think that the chances of a party having non-legal grounds for a judicial review stemming from a review decision are slim, as the review 'grounds' jurisdiction [originating in SPPA s.21.2(1), but relying for articulation on the LTB Rules] can be expected to narrow by virtue of natural review deference - but I don't see any grounds for the categorical 'no JR of review decisions unless appeal first' interpretation. Indeed, that interpretation seems directly counter to the conclusion that the court reaches in Issue #1 ['no sequential JR and an appeal']. (c) The Procedural Relationship Between RTA s.210 Appeals and SPPA 21.1 Reviews
While in the immediately preceding sub-section the court essentially requires that (again, in an adequate case) RTA s.210 appeals and judicial reviews can (and should) be advanced simultaneously, it reach the opposite legal conclusion respecting appeals and reviews. This conclusion, that appeals and reviews cannot be advanced simultaneously [the court uses the term: 'co-extensively'], emanates from the court's related legal conclusion that when an appeal is dismissed any review proceedings afoot at that time are rendered null and void [para 7]: Unlike an administrative appeal, an administrative review is not a necessary step in the process, and it is for the tenant to decide whether to appeal the original decision or to await the decision of a request for review. The reasoning seems to be drawn from res judicata logic, that we require 'finality' of decisions - both for appeal purposes and - if no appeal is advanced - for purposes of allowing the parties to get along with their lives. The language of 'finality' occurs, not for the first time, in para 7 [ie. "This court hears appeals from the “final” order of the Landlord and Tenant Board."].
Where 'finality' occurs is stated by the court, at least at the appeal level, here [para 7]: However, once the court has adjudicated on the appeal, the matter [SS: the review] is at an end ... In the present case the LTB in fact issued it's dismissing review decision [on 21 July 2021], well after the appeal was dismissed [on 04 November 2020]. While the court says the LTB made the right decision, it downplays what is essentially it's functus status at that time.
But while adding the novelty of these new principles, it's obvious that the court is not at all certain of it's conclusions [eg. "in my view it is arguable", and "if I am wrong about that conclusion": para 7] so that we are ourselves thrown into doubt. And it is worth noting that the court does not cite a single authority for it's reasons, anywhere. This is consistent with my early website points that very little solid jurisprudence exists to define the role of SPPA s.21.1 reviews (also called 'reconsiderations') within the Ontario administrative law scheme. It is also worth noting that there is no statutory prohibition against SPPA 21.2 reviews and RTA 210 appeal being advanced simultaneously, something that one would clearly expect if it were so intended. Contrast the lax RTA treatment of reviews with that of the ODSP Act [General Reg s.70(2,3)] which extends the running of the 30-day appeal filing limit to when a reconsideration is decided.
3. The Automatic Stay
Another practical tenant problem is the automatic stay on appeal. If we follow the logic set out in this ruling, the automatic appeal stay [SPPA 25(1)] is not in effect while the review is being conducted. Parties, particularly tenants for whom lease contracts are not (normally) a business venture, would logically have to seek an LTB stay of the subject orders or else find themselves fighting over something already lost (ie. evictions already executed). The LTB rules can (and do at 03 December 2021: see R26.10) provide for such stays, but they are not automatic [the request asks a party to "describe any prejudice resulting from a refusal to grant the stay"]. The need for a formal stay is often lost on self-reppers, who form the majority of parties involved with both review and s.210 appeals. Indeed, the term 'automatic stay' on appeal is deceptive as the appellant must still obtain the stay document from the Divisional court and file it with the sheriff, something that seems unnecessarily cumbersome and risky for those unfamiliar with court procedures and/or the disabled.
4. Summary
Given the lack of cited cases in this ruling, and it's self-questioning conclusions, I think we can view this as a perhaps valiant attempt by Corbett J to 'sort out the mess' that SPPA 21.1 review have grafted onto Ontario administrative law - largely to provide himself with some guidance to deal with those similar cases coming down to road. But SPPA s.21.1 'reviews' will remain a huge live issue in Ontario admin law, really calling for profound statutory clarification.
To think that one can introduce into the time-honoured and common-law-based hearing system another near-equivalent proceeding - with the passage of a relatively minor SPPA provision, that gives even minor tribunals huge power over the fate of citizens with little or even no fairness and natural justice articulaton - is both scary and ill-considered. Now with the JRPA judicial review 30-day limitation period [JRPA S.5(1-2)] the second-level remedies of LTB parties (overwhemingly tenants) are massively confusing and ill-guided - and mostly importantly, nearly impossible to advance with any degree of procedural certainty. We deserve far, far better.
. Leduc v Glen Echo Park Inc.
The appeal case of Leduc v. Glen Echo Park Inc. (Div Ct, 2011) shows that by raising (and only questionably disposing) of an issue that goes to the heart of reviews as a legal proceeding, something that should have been made plain all along - wasn't made plain at all.
The Leduc case was advanced as a Divisional Court s.210 appeal of review proceedings. The LTB proceedings were decided in favour of the tenant, and the landlord requested a 'review' of that decision. It is essential to recognize that a review request initially raises the issue of whether a new hearing should be held, and - if that is decided in the affirmative - then a de novo hearing is held (as new, as though the prior hearing had not been held).
A full review procedure goes in three steps: 1. first the 'request' for the review, and then 2. the granting of the request for a de novo hearing, and 3. the conduct of the new hearing resulting in a new decision. In Leduc the review proceedings had advanced through all of these stages, resulting in a 'win' for the landlord. The tenant appealed to the Divisional Court, and the landlord successfully moved to quash the appeal.
These are the dates:- LTB 'Normal' Decision [tenant wins] ............ 02 October 2009
- Landlord Review Request ............ [no date given]
- LTB Orders De Novo Hearing ............ 11 January 2010
- LTB Issues Review Hearing Decision [LL wins] ............ 05 January 2011
- Tenant Files (this) Div Ct Appeal ............ 04 February 2011
The landlord's motion to quash was granted on the grounds that the appeal was out-of-time, almost a year. The appellant tenant when filing the appeal, took the route that many would think reasonable, they held off on the s.210 statutory appeal until the review procedure was fully spent - implicitly treating the review as part of the main LTB application procedure, and the 30 day timeline as starting to count when the new decision regarding the fate of his client, was issued.
This thinking was made understandable by the fact that, in terms of judicial economy that one only appeals when it matters, and by the fact that the ultimate decision is also an 'order', consistent with the s.210 appeal wording:Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
But what the Divisional Court did was treat the 30-day appeal time as counting from the earlier granting of the review request (to hold a de novo hearing: 11 January 2010), not the resulting 'ultimate' order from this new hearing. As such the appeal was almost a year late. The court reasoned, with respect to the granting of the review request, that:[11] This was a final determination of the earlier proceedings and marks the commencement of a fresh hearing considering the jurisdictional issues raised by the appellants. The result was that the original LTB 'proceeding' ended with the order to hold a de novo hearing [not with the result of that hearing], that was in essence the commencement of a new, ostensibly unrelated new hearing. The court could have, but did not, exercise it's discretion under RTA s.210(5) to extend the appeal time limit [as was done in Fernando v Medallion Corporation (Div Ct, 2010)].
The questions that this gives rise to include:- why didn't the court overlook any technical pleadings and treat the appeal as what it really was, an appeal the 'new' ruling [using it's appeal authority under CJA 134(1): "make any other order or decision that is considered just"];
- with the creation of a new proceeding, what prevents res judicata complications where an appeal is continued in the first proceeding, and a contrary result occurs in the second? (there is no prohibition against both a review and an appeal being conducted within a proceeding);
- the above res judicata concern multiples when appeals and further reviews (further reviews are possible by other parties under Rule 26.18-26.19) in both proceedings, so the permutations multiply.
The practical problem that reviews give rise to, and the first issue that prudent counsel confronts, is whether (after a negative ruling before the LTB in the normal course) to appeal, review or both. The answer still appears to be: both. Barring the other side bringing a stay motion (likely based on abuse of process) to stop the run-away proceedings, this is what will happen.
It reminds me of the situation that occured with employment/human-rights cases post-Bhaduria for decades where employee claimants filed mixed cause-of-action cases (both wrongful dismissal and human-rights) separately before the courts and the human rights system, and employers moved for stays of whichever forum they didn't favour - much to the disservice of relatively impecunious employees.
Politically, it suggests machinations of the 'administrative (or managing) Board' versus the 'presiding Board' [see SPPA Ch.3, s.1: General SPPA Rules: Tribunals]. It seems plain in terms of natural human dynamics that reviews (or reconsiderations) are a tool of the 'administrative Board', for who else would feel the entitlement to override the result of a hearing, that archetypal common law institution, than a Board's administration. But I have no evidence of that. For all I know they could be randomly assigned to all Board members when the need arose.
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