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Administrative - Adjournments. PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court considers an administrative adjournment decision, and whether reasons should be given for it:[34] I am not satisfied the Arbitrator’s decision to deny the adjournment request was unfair. The Arbitrator had the authority to deny an adjournment. Labour arbitrators are experts and are sensitive to the dynamics at play in labour relations disputes: Toronto (City) Board of Education v. OSSTF, District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, at para. 35. It is not realistic to require labour arbitrators, in the context of a collective agreement that contemplates multiple hearings a day, to give reasons for routine procedural decisions. While the Arbitrator denied PUC an adjournment, he allowed PUC to adduce the reply evidence it had available. . Turner v. Dong
In Turner v. Dong (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal argument grounded on the refusal of an adjournment at the LTB:[37] Matters of scheduling and deciding whether to grant an adjournment involve an exercise of discretion and are entitled to considerable deference: Kalin v. College of Teachers (2005), 2005 CanLII 18286 (ON SCDC), at para. 13. An administrative tribunal such as the LTB enjoys a wide latitude in deciding whether to grant or refuse an adjournment of a scheduled hearing: Sterling v. Guillame, 2021 ONSC 1160, at para. 29.
[38] In Solomon v. Levy, 2015 ONSC 2556, the Divisional Court stated, at paras. 39 and 40:While the granting of adjournments is in the discretion of the Board member hearing an application, the general approach of the Board is informed by section 183 of the Act, which directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter”.
Accordingly, the Board member must take into account the public interest in resolving a case as soon as possible. The key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing. . Anca International Holding Group Inc. v Zhao
In Anca International Holding Group Inc. v Zhao (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal against an eviction order, here with premises that rented for over $15,000 a month though the matter proceeded before the LTB.
Here the court considered the argument that an adjournment was improperly denied:The Denial of the Adjournment Request
[6] Adjournments are a matter of discretion. The tribunal member was required to consider the interests of justice in making the decision. All relevant circumstances were to be balanced. The tribunal member did so.
[7] The appellants’ principal complaint is that the denial of the adjournment was unreasonable in their view and denied them the right to participate.
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[14] The denial of an adjournment on a proper exercise of discretion is not a denial of procedural fairness. It does not deny the tenants the opportunity to participate. Rather, it was the tenants who sought to deny the landlord of the opportunity of a timely hearing. The tenants had the opportunity to participate, bring forward their evidence, make submissions of law, or provide compelling evidence to justify their alleged inability to do so. The presence at the hearing of their lawyer and authorized agent was properly a factor to be considered by the tribunal member in the exercise of his discretion.
[15] Absent an error in principle or a failure to take into account relevant considerations, an appellate court will defer to discretionary adjournment decisions made by tribunals. These types of decisions are particularly the province of the tribunal members who live these hearings on a daily basis. In my view, the tribunal member fairly considered the relevant circumstances and then exercised his best judgment in assessing of the interests of justice. There is no error of law and no denial procedural fairness. . Law Society of Upper Canada v Igbinosun
In Law Society of Upper Canada v Igbinosun (Ont CA, 2009) the court upheld an earlier Divisional Court ruling that a Law Society Hearing Panel had breached natural justice by failing to grant the appellant an adjournment when he had retained new counsel and, when subsequently proceeding in his absence, by failing to provide him with adequate Notice of the potential sanctions he might face. The Court of Appeal held that, since the adjournment refusal was unreasonable, the SPPA s.6(3)(a) requirement that the Notice state the "purpose of the hearing" was not avoided by the SPPA s.7(1) default provision that excused notice where the party did not attend the hearing.
. Sterling v. Guillame
In Sterling v. Guillame (Div Ct, 2021) the Divisional Court considered the law governing administrative adjournments:[27] The authority to adjourn hearings is found in Rule 26 of the LTB’s Rules of Procedure. This, in turn, is authorized by s. 21 of the Statutory Powers Procedure Act, which provides that:A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held. [28] The SPPA also provides for proceedings in the absence of a party, in s. 7:Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding. [29] An administrative tribunal such as the LTB enjoys a wide latitude in deciding whether to grant or refuse an adjournment of a scheduled hearing. The decision is discretionary and the scope for judicial intervention is correspondingly limited: Flamboro Downs Holdings Ltd. v. I.B. of T.C.W. & H. of A., Local 879, 1979 CanLII 1669 (Div. Ct.). . Tamayo v. Licence Appeal Tribunal
In Tamayo v. Licence Appeal Tribunal (Div Court, 2023) the Divisional Court considers an appeal from a tribunal denial of an adjournment, which is an interlocutory administrative order. The court held that it lacked jurisdiction to consider the appeal and dismissed it both as a nullity and under R2.1 (frivolous and vexatious grounds). The case is interesting for the tactical choices that a party faces when dealing with a denial of a tribunal adjournment, including judicial review [para 6] and re-requesting adjournment at the commencement of the tribunal hearing [para 7]:[1] Justice Corbett confirms the urgent case management teleconference held November 18, 2022.
[2] The appellant filed a notice of appeal from a decision and reconsideration decision of the LAT denying a request for adjournment of a hearing at the LAT scheduled to start November 21, 2022.
[3] The appellant takes the further position that the appeal to this court has the effect of staying the LAT proceedings. That, he argues, is the effect of the stay provisions in the SPPA. Counsel for the LAT argues that there is no jurisdiction in this court to hear the appeal, and thus the notice of appeal is, itself, a nullity, and the LAT could proceed with the hearing as scheduled on November 21, 2022.
[4] On the question of jurisdiction, counsel for the applicant argued that the Divisional Court decision in Penney v. The Cooperators General Insurance Company, 2022 ONSC 3874 leaves the door open for an appeal in exceptional circumstances. I have dealt with that argument in Kahissay v. Intact Insurance, 2022 ONSC 6357: there is no jurisdiction in this court to hear an interlocutory appeal from LAT and that is the holding in Penney. Matheson J. has come to the same conclusion in another recent case in which applicant's counsel was also counsel [Allo v. Licence Appeal Tribunal, 2022 ONSC 6368].
[5] An applicant before the LAT may not obtain reversal of a decision denying an adjournment merely by filing a notice of appeal at the last minute. If this court has not had a reasonable opportunity to deal with the notice of appeal, then, as argued by counsel for LAT, it is open to LAT to conclude that the notice of appeal is a nullity and does not have the effect of staying the LAT proceedings. It is better, however, for this court to rule on the propriety of a notice of appeal filed with this court.
[6] In all the circumstances, this appeal is dismissed pursuant to R. 2.1 for the reasons set out in Penney and Kahissay. This decision is without prejudice to an application for judicial review. I would extend the time for such an application to be brought to December 16, 2022. In so directing, no inference should be drawn that I have ruled on any issues of mootness or prematurity respecting such an application. Also, as discussed in the teleconference, commencing an application for judicial review does not have the effect of staying the proceedings below. To obtain a stay pending hearing of the application for judicial review, the applicant would have to move for a stay. I declined to grant an interim stay and this court will not, in any event, schedule a stay motion prior to the hearing scheduled to commence on November 21, 2022.
[7] As acknowledged by counsel for LAT during the conference, it is open to a party to seek an adjournment from the LAT at the start of the hearing. There are currently no proceedings in this court that would ground such a request, and a proposed or commenced application for judicial review would not ground such a request in the absence of a stay order from this court. This does not preclude other bases for seeking an adjournment, and it would be for the LAT to adjudicate any adjournment request as part of its jurisdiction to control its own process in a manner consistent with principles of procedural fairness.
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