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Administrative - Audi Alteram Partem (Hear Both Sides). Faruk v. The Landlord and Tenant Board
In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.
In this quote the court considers an audi alteram partem argument by the LTB:[59] The Landlord and Tenant Board goes further. In determining to proceed de novo the Board submits it was respecting the ancient principle audi alterem partem generally understood to refer to the right to be heard:The Latin phrase upon which Mr. McIntosh relies – “audi alteram partem”, meaning listen to the other side...[56]
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...the principle of audi alteram partem—decisions of importance cannot be made unless affected parties have had the opportunity to respond to material evidence offered against them.[57]
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“let the other side be heard as well”[58] [60] In this case, in its submissions, the Landlord and Tenant Board extended the meaning of the phrase by reference to Administrative Law in Canada (7th ed.) to include the provision that the right includes starting again if a single hearing officer is unable to complete the hearing:Where a quorum is prescribed by statute or regulation, a hearing by fewer members is invalid and a decision is void. If one member is lost, leaving no quorum, the remaining members may not continue the hearing, not even if the absent member is replaced because the replacement has not heard the evidence presented before joining the panel, unless the parties consent to the change in membership of the panel part way through the hearing. Otherwise, a new panel must commence the hearing anew. Similarly, if the Tribunal is constituted by a single member is unable to complete the proceeding, the replacement must start the proceeding anew. Lack of a prescribed quorum may not be waived by the parties because the purpose of a quorum is to serve the public interest through the collective wisdom of a minimum number of members. [Footnotes omitted, emphasis added].[59] [61] There is nothing in this quotation that demonstrates the meaning attributed to the phrase audi alterem partem includes a requirement that a hearing be conducted by a single member without change. Obviously, as a general matter one would expect this to be the case, but its not what audi alterem partem is directed to. These rules are in place to advance fairness not set it to the side. In exceptional circumstances the court can and will intervene. Contrary to the submission made on behalf of the Landlord and Tenant Board, this is such an exceptional circumstance. The substantive issue was resolved by the member who then left. All that remained was to determine which of the tenants, who were members of the “Union”, had made payment proposals. This was a separate independent fact that was extricable from the determinations that had been made. It bears noting that the evidence, said by the tenants to demonstrate which of them had made a payment proposal, was delivered on July 9, 2021, or four months before the tenants learned of the departure of the member of the Board. I have already noted and do not accept the submission of counsel for the landlord that the question of whether the application of subsection 83(3)(d) remained open to be reconsidered on each of the individual hearings and could be found not to apply in this situation. To accept that this was the case would render meaningless the efforts of the Landlord and Tenant Board to consolidate, treat issues as common and expedite the hearing. Any determination made would be open to reconsideration. Nothing would have been accomplished despite the efforts of the Landlord and Tenant Board to organize the proceedings. . Sexsmith v. Canada (Attorney General)
In Sexsmith v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal held that breach of the audi alteram partem principle constituted a violation of procedural fairness:[24] The other Baker factor is the procedure that the firearms officers chose to follow. In these circumstances, they rightly considered it fair, important and necessary to interview Mr. Sexsmith so he could put his case for the authorization and answer their questions. It was equally fair, important and necessary to disclose the government officials’ facts and assessments to Mr. Sexsmith and interview him again so he could have a chance to respond to the case against him.
[25] By not doing this, the firearms officers offended the principle of audi alteram partem—decisions of importance cannot be made unless affected parties have had the opportunity to respond to material evidence offered against them.
[26] The Federal Court recognized this procedural unfairness but did not quash the firearms officers’ decisions. It held that Mr. Sexsmith had no useful responses to offer in response to the government officials’ facts and assessments.
[27] There is no factual basis for that holding. Mr. Sexsmith’s statements in his application for judicial review and in his memorandum of fact and law filed in the Federal Court show that he had many important and material responses to the facts and assessments the government officials offered. The firearms officers had to receive and consider his responses: they were of a sort that might have changed their minds.
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