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Administrative - 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. . Amstar Pool LLP v. Boothe
In Amstar Pool LLP v. Boothe (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal, here where the LL did not attend for a tenant-successful LTB rent rebate application. The LTB denied a reconsideration on grounds of non-participation, essentially for lack of due diligence:[13] Amstar also appeals the Board’s decision to deny its request for a review of the February 7, 2024 decision. I would not give effect to this ground of appeal either.
[14] In its request for a review, Amstar submitted evidence that on January 18, 2024, its legal department prepared a list of upcoming hearings. Mr. Boothe’s hearing was not on that list “due to a glitch in the system.” The request for a review also states that on January 23, 2024 – the date of the hearing of Mr. Boothe’s application – Amstar’s paralegal had no access to their computer server because of problems with their internet.
[15] Amstar argues that the Board erred in rejecting its explanation for why nobody appeared on its behalf at the hearing. The problem with this argument is the Board did not reject Amstar’s explanation. The Board accepted the paralegal’s evidence that, because of an internal glitch, this matter was not on the paralegal’s list. Nonetheless, the Board found that without further evidence to explain the glitch, “the Landlord has not demonstrated that it exercised reasonable diligence to be aware of the January 23, 2024 hearing date.”
[16] In the February 7, 2024 decision on the merits of Mr. Boothe’s application, the Board made a factual finding that Amstar had been properly served with the notice of hearing by the Board and, therefore, knew the date for the hearing. In its request for a review, Amstar did not challenge that finding. Amstar did not argue, for example, that it had not received notice of the hearing date or that it did not know the date for the hearing. Rather, the issue was that Amstar’s legal representative did not know about the hearing and could not access the hearing because of computer problems.
[17] The Board applied the right test to determine whether Amstar was reasonably able to participate in the proceedings. The Board held, “A party to a Board application is required to exercise reasonable diligence to be aware of and to attend the scheduled Board hearing.” That is a correct statement of the law and reflects the Board’s responsibility to manage its own processes efficiently. A lack of diligence is a valid reason to refuse to set aside an order when one party failed to appear at the original hearing. If the party seeking review did not exercise due diligence, they cannot demand that the Tribunal hold a second hearing: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 at para. 8. And the burden is properly on the party requesting the review to establish they exercised diligence to be aware of and attend the hearing. . 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. . 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. . Guillaume v. Chief Animal Welfare Inspector
In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court illustrates some ACRB procedures, here in three appeals from AWI actions regarding a warrantless cat search and seizure where the appellant ultimately did not participate in the technically-delayed hearing:[11] The applicant appealed the notice of removal, the decision to keep the cats in care, and the statement of account. Appeals to the Board are hearings that permit parties to call witnesses, cross-examine and present arguments, as set out in s. 38 of the Act. The three appeals were consolidated and the applicant was given information about the Board process, including how to raise preliminary issues and Charter issues.
[12] The Board hearing was scheduled for early April 2023. The Board made preliminary rulings denying the applicant’s request for a court reporter or other recording and denying her motion to adjourn. The applicant then refused to participate and left. The Chief Animal Welfare Inspector moved to dismiss the appeals as abandoned. That motion was dismissed.
[13] With respect to the Charter issues, the applicant had not provided the notice of constitutional question that was required under the Board rules. After the Applicant left the above hearing, and it was adjourned, she then provided a notice of constitutional question. The Board allowed the filing of the notice and directed that the Applicant put forward those arguments at the re-scheduled hearing.
[14] The hearing was rescheduled for two days in June – June 5 and 6. At the outset of the hearing on June 5, there were technical difficulties such that the parties were in a different virtual hearing room from the adjudicator. In the hearing before this Court, the applicant submitted that the delay in commencement of the hearing was the fault of the adjudicator, which is contrary to the record.
[15] The hearing was stood down until 11:30AM, on notice to the applicant, and a proper link to the hearing was provided. In response, the applicant emailed to say she was unavailable at that time due to “unmitigated circumstances” and asked for an adjournment. The applicant did not provide any other explanation for the adjournment request. The hearing was delayed again, to 1PM. The applicant did not appear. The adjudicator nonetheless considered the applicant’s email request for an adjournment. The adjudicator considered the interests of both sides and declined the adjournment.
[16] The applicant submits that the delay in commencement of the hearing on June 5 caused her to experience health problems and that was the reason that she did not attend later in the day. However, the applicant neither said that at the time nor did she take steps to put that reason forward after the hearing. She had the right to seek reconsideration, where health issues could have been raised, and did not seek a reconsideration. Further, the applicant did not provide any medical documentation in support of that position either to the Board or to this Court in this application.
[17] After the applicant did not attend when the hearing began later in the day, the Chief Animal Welfare Inspector made another request that the appeal be dismissed on the basis that the appellant had the burden of proof, was not present and therefore would not be calling evidence. The request to dismiss was denied and the adjudicator called on the Chief Animal Welfare to call evidence. The Chief Animal Welfare Inspector called evidence on all the issues. Detailed reasons for decision were released on August 4, 2023, dismissing the appeals.
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[20] The applicant submits that her Charter rights were breached by unlawful entries into her apartment and she therefore wants her Charter arguments decided either by the Board or this Court.
[21] As set out in the reasons for decision, the Board did not make a decision about her Charter issues because she did not attend. Under the Board’s process, it was incumbent on her to make those arguments at the hearing. In the context of this application for judicial review, her submissions amount to a challenge to the Board’s decision to deny her adjournment request on June 5 and proceed in her absence.
[22] We are not persuaded that the denial of the email request for an adjournment on June 5 was either procedurally unfair or unreasonable. As set out in the Appeal Decision, there had already been one adjournment because the applicant left the prior hearing. The applicant had proper notice of the re-scheduled hearing and was on notice she needed to pursue her constitutional arguments at the hearing. The applicant had not shown that illness was the reason for the non-attendance. The adjudicator weighed relevant factors, including prejudice to the applicant, and decided not to exercise their discretion to adjourn the hearing again.
[23] There is also no basis to interfere with the Board’s decision to proceed in the applicant’s absence. The adjudicator noted the authority to do so under s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and considered the circumstances as summarized above. . Gusain v Arnold
In Gusain v Arnold (Div Court, 2023) the Divisional Court considered non-attendence at a tribunal proceeding, here in an LTB context:[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.
[49] In this case, Board Member Lang conducted a preliminary review of appellants’ request. As set out in her interim order dated June 3, 2021, she directed the request to a review hearing to determine whether the appellants were reasonably able to participate in the proceedings.
[50] As indicated previously, the first review hearing proceeded virtually before Board Member Macchione, with the appellant Mr. Gusain and the respondents in attendance. Mr. Gusain, who was represented by a paralegal, testified at the hearing. In the review decision, the adjudicator denied the review request. She did not accept Mr. Gusain’s explanation that he was confused by the two notices of hearing for different dates, noting that he did not contact the Board to obtain clarification and provided no reasonable explanation for his negligence. The adjudicator found that the appellants were aware of the hearing and had adequate opportunity to participate in the proceedings.
[51] In support of her decision, the adjudicator relied on this court’s decision in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541(Div. Ct.). In that case, the landlord requested that the Board review its decision granting a rent abatement to the tenant after a hearing at which the landlord failed to appear. The Board refused the review request, finding that the landlord’s failure to attend the hearing was due to a lack of diligence on the part of the landlord’s office staff. On appeal, the landlord argued that the Board erred in law since there was no evidentiary basis for its finding of lack of diligence. The Divisional Court disagreed and dismissed the appeal. At para. 8, the court stated as follows:Lack of diligence in dealing with court proceedings is a reason for refusing to set aside an order where a party has failed to appear. In other words, it was not an error in law for the Review Board to find that lack of diligence constituted a reason not to grant the landlord a rehearing. If parties are not diligent in dealing with legal proceedings then they cannot demand that a Tribunal waste its resources by rehearing matters a second time. To allow this would undermine the ability of the administration of justice to deliver timely, cost-effective and final orders. . Creglia v. Mathews
In Creglia v. Mathews (Div Court, 2023) the Divisional Court considered a straightforward SPPA [7(1)] issue about service and subsequent non-participation:[22] Service is provided for by virtue of s. 191 of the RTA. The Board did not err in finding that Mr. Creglia was deemed to have been served by May 8, 2022. This meant that the Board had jurisdiction to proceed in Mr. Creglia’s absence on June 6, 2022, by virtue of the Statutory Powers Procedure Act, R.S.O. 1990, c S.22, as amended, s. 7(1).
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