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Administrative - Interpretation. Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court considered a tribunal variation of the LTB rules under SPPA s.2 ['liberal construction'] (and LTB R1.6):[35] I recognize that the LTB has broad discretion to manage its process to ensure the most expeditious and fair determination of the issues in a proceeding. Section 2 of the SPPA states that the Act and any tribunal rules are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” Rule 1.4 of the LTB Rules provides that the LTB will decide how a matter will proceed and may make procedural directions or orders at any time and may impose any conditions that are appropriate and fair. Under Rule 1.6, the LTB may waive or vary any provision in the Rules, and may direct the order in which issues, including issues the parties consider to be preliminary, will be considered and determined.
[36] In this case, however, the transcript does not reflect that the Member made a specific procedural direction or otherwise exercised his discretion to direct the order in which the issues would be determined. In this case, proceeding as provided under the LTB Rules would have been fairer and more expeditious, not to mention less confusing for the parties. In my view, based on the Baker factors, including the nature of the decision and its importance to the parties, as well as the statutory scheme, and the parties’ legitimate expectations based on the procedure adopted by the LTB, procedural fairness necessitated a determination of the threshold issue of a serious error. If the Member was going to adopt a different process, which might have been necessary because of the lack of a transcript of the previous hearing, procedural fairness required an explanation of that process so that the parties could fully and properly participate. Given that the process adopted by the Member was confusing and unclear to me on my review of the transcript, I find it likely that it was confusing to the parties as well, hindering their ability to properly participate.
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