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Administrative - Notice of Hearing. Smith v. Japra
In Smith v. Japra (Div Ct, 2026) the Divisional Court allowed a tenants' RTA s.210 appeal, here brought against "a decision of the Landlord and Tenant Board ("LTB") dismissing their request for review of an order issued on the respondents' L10 application" ['Application to Collect Money a Former Tenant Owes'].
The court considers the relative burden on parties to an LTB proceeding to both give and receive notice, and here also considers the SPPA s.6(1) ['Notice of hearing'] provision:[12] Did the review member commit an error of law by concluding that the appellants were reasonably able to participate in the proceeding notwithstanding the absence of notice of the hearing?
Analysis
A. Procedural Fairness and the Right to Notice
[13] Whether a party has been denied procedural fairness is a question of law and is therefore within this court's jurisdiction on appeal: Shapiro v. Swingler, 2021 ONSC 6191, at para. 25. The correctness standard applies on a question of law: Reid v. Shewen, 2025 ONSC 4196 (Div. Ct.) at para. 43.
[14] This court is tasked with evaluating whether the rules of procedural fairness were adhered to by assessing the circumstances giving rise to the allegation they were not, and by determining what procedures and safeguards were required to comply with the duty to act fairly: Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658 (Div. Ct.) at para. 15, quoting London (City) v. Ayerswood Development Corp. 2002 Can LII 3225 (ON CA) at para. 10.
[15] Section 6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 ("SPPA") provides that a party to a proceeding shall be given reasonable notice of the hearing. Section 6(3) requires that the notice specify the time, place, and purpose of the hearing. The statutory obligation is fundamental to the right to be heard.
[16] Equally, Rule 5.1 of the LTB's Rules contemplates that a notice of hearing will be served on parties by the LTB via email. While Rule 5.2 allows the LTB to direct that service be effected by another party in certain circumstances, there is no evidence that any such direction was made in the present case, and the Rules do not require that the parties access the LTB’s online portal to obtain the notice of hearing.
[17] It is common ground that the LTB did not email a notice of hearing to the appellants. The review member expressly acknowledged that fact. The review member further accepted that it was possible the notice was not enclosed within the package served by the respondents.
[18] Significantly, the review member did not find that the notice of hearing had in fact been received by the appellants and there is no evidence supporting the conclusion that the tenants knew the hearing was scheduled by checking the online portal. The review member noted the LTB’s file confirmed they logged into the portal on June 24, 2024, but there was no indication they logged on again after the notice was posted, prior to the hearing.
B. The Applicable Jurisprudence
[19] The governing legal principles are well established. Section 209(2) of the RTA provides the LTB with the power to review a decision or order “if a party to the proceeding was not reasonably able to participate”.
[20] In Abdalla et al. v. Koirala, 2023 ONSC 7106 (Div. Ct.) at para. 17 this court held that the phrase "not reasonably able to participate" in s. 209(2) of the RTA must be interpreted broadly to ensure natural justice. Where a party demonstrates an intention to participate in a hearing but is prevented from doing so, the party should ordinarily be afforded relief through the review process.
[21] The court in Abdalla (at paras. 18 and 19) further distinguished those circumstances from cases involving a genuine lack of diligence. A party who simply ignores a proceeding cannot invoke procedural fairness to obtain a second hearing. However, where participation is prevented by circumstances beyond the party's control, the review provisions exist to protect the integrity of the process.
[22] The appellants rely on King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ON SCDC), at para. 3, wherein the three-member panel of the Divisional Court emphasized that natural justice requires that a party who intended to participate but was prevented from doing so be afforded a meaningful opportunity to be heard. As noted by the panel, “natural justice requires no less”. In that case, the court held that even when a tenant received proper notice of the hearing, but made a mistake about the hearing date, a new hearing should be ordered.
[23] In Timbercreek Asset Management Inc. v. Soufi, 2024 ONSC 4041 (Div. Ct.) the appellant tenant failed to attend two hearings and an eviction order was made in his absence. There was no dispute that the notice was sent. This court set aside the reconsideration order and remitted the matter back to the LTB before a different panel, and held the tenant provided a reasonable explanation for not attending – he didn’t understand it. His disability and the impact an eviction would have on him warranted the application of a broad interpretation of the “not reasonably able to participate” test. Timbercreek emphasizes that a party has a fundamental right to participate in a hearing.
[24] In Zalzman v. Kim, 2022 ONSC 1842 (Div. Ct.) the tenant attended a hearing which was adjourned. The court held that while notice of the next hearing was mailed to the tenant by the LTB, there was “no positive evidence” it was received other than the mail was not returned. The tenant was not faulted for failing to contact the LTB to determine the new date.
[25] This court’s decision in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) is oft cited in cases involving orders made where the opposing party did not appear. That case involved a landlord against whom a rent abatement order was made. The LTB’s file indicated that the notice was sent to the landlord’s head office, but the landlord claimed it did not receive notice. The review member found the evidence was more consistent with a lack of due diligence on the part of the landlord’s staff. Although the appeal was dismissed, the court did not suggest it was incumbent upon the landlord to search the portal, or contact the LTB, to ascertain the hearing date.
[26] These authorities’ direct attention to a practical question: was the party reasonably able to participate in the hearing that occurred? The inquiry is not whether, in hindsight, additional investigative steps by a party might have been taken.
C. The Review Member's Error of Law
[27] In the present case, the review member accepted that the appellants' evidence regarding non-receipt of the notice of hearing was credible. The review member also accepted that the LTB itself had not emailed the notice and that it was possible the notice had never been enclosed with the respondents' service package. Those findings should have directed the analysis toward whether the appellants were reasonably able to participate in the hearing.
[28] Instead, the review member concluded that the appellants should have monitored the LTB portal or contacted the LTB to determine whether a hearing had been scheduled.
[29] In my view, that conclusion cannot be reconciled with the statutory scheme or the jurisprudence. Neither the SPPA, the RTA, nor the LTB's Rules impose a legal obligation on parties to continuously monitor the LTB portal in anticipation of a possible failure of notice. Nothing in the governing legislation shifts responsibility for notice from the LTB to the recipient. No supporting jurisprudence for the decision was cited in the decision; the review member effectively transformed a statutory entitlement to receive notice into an obligation to search for notice.
[30] That approach improperly conflates notice of the existence of a proceeding with notice of the hearing itself. A party may know that an application was commenced without knowing when, where, or how that application will be adjudicated.
[31] The distinction is critical. Section 6 of the SPPA guarantees reasonable notice of the hearing, not merely awareness that litigation exists.
[32] The review member's reasoning effectively imposed a form of constructive notice. Under that approach, a party who never receives a notice of hearing may nevertheless be deprived of a hearing because the party failed to discover independently that one had been scheduled. Such an approach undermines the protections guaranteed by the SPPA and is inconsistent with the broad interpretation of participation rights mandated by Abdalla.
[33] Moreover, the review member’s apparent reliance on the fact that one of the appellants is a lawyer is misguided – there is no sliding scale of notice determined by a party’s profession or level of education.
D. The Appellants Demonstrated an Intention to Participate
[34] The evidence before the review member demonstrated a clear intention on the part of the appellants to participate in the proceeding. The appellants uploaded extensive documentary evidence, videos, and written submissions addressing the merits of the respondents' claim.
[35] Like the tenant in Zaltzman, their conduct was wholly inconsistent with a deliberate decision to ignore the proceeding. As the appellants submitted, it makes little sense that parties would expend considerable effort preparing a defence only to intentionally absent themselves from the hearing at which that defence was to be advanced.
[36] The review member's own findings support the conclusion that the appellants intended to participate but were prevented from doing so because they lacked notice of the hearing. In those circumstances, the authorities relied upon by the appellants point strongly toward the conclusion that they were not reasonably able to participate and that procedural fairness requires rehearing.
Disposition
[37] The denial of reasonable notice deprived the appellants of their right to be heard. This was not a mere procedural irregularity -- it constituted a breach of procedural fairness and therefore an error of law. . Gannon v. Windsor Police Service
In Gannon v. Windsor Police Service (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a police officer's JR, here brought against "the decision of the Ontario Civilian Police Commission (the “Commission” or the “OCPC”)" wherein the "Commission (i) confirmed the finding that Sergeant Gannon was guilty of Unlawful or Unnecessary Exercise of Authority, (ii) revoked the finding that he was guilty of Neglect of Duty, (iii) revoked the Penalty Decision, and (iv) ordered a new hearing on the charge of Neglect of Duty and penalty before a new hearing officer."
Here the court considered a 'Notice of Hearing' issue, specifically as to whether the reasons for decision were responsive to it:[88] In any case, it is not necessary to prove each allegation in the statement of particulars contained in a Notice of Hearing to sustain a finding of misconduct: Susan Mancini and Constable Martin Courage of the Niagara Regional Police Service, 2004 CanLII 76810 (ON CPC), at para. 98. .... . International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed (as moot) a federal labour JR, here against a ruling of the Canada Industrial Relations Board (CIRB) that held that "ILWU Canada [had] engaged in an unlawful strike".
Here the court dismisses an inadequate notice argument in an urgent strike context:[69] I agree with ILWU Canada that, generally speaking, ensuring parties have adequate notice of and time to prepare for a hearing is relevant to both a party’s ability to adequately present its case and to the rule of law, which depends at least to a certain extent on parties presenting the relevant evidence and authorities to the decision-maker. To those unfamiliar with the context of illegal strike applications, the few hours notice provided by the CIRB in the instant case might seem inadequate. However, labour boards invariably proceed on very short notice in illegal strike applications, given the nature of the issues and the need for effective remedies. This is especially so for the CIRB, which has jurisdiction over undertakings that form the backbone of the Canadian economy, like railways, airlines, air traffic control, airport security screening, and the ports. In such industries, it is not unusual for the CIRB to schedule hearings very rapidly in illegal strike applications.
[70] The Board’s ability to proceed in rapid fashion in illegal strike applications is contemplated by both the Code and the CIRB Regulations. The Board is empowered to abridge all time limits, by virtue of paragraph 16(m) of the Code, and paragraph 14(e) and subsection 15(2) of the CIRB Regulations provide that hearings in illegal strike applications may be held "“forthwith”" following service of the application on the respondent union. In addition, by virtue of section 16.1 of the Code, the CIRB need not hold a hearing at all. This Court has recognized the right of the CIRB, absent a compelling reason otherwise, to decide cases without holding a hearing: Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at paras. 3–6; Ducharme v. Air Transat A.T. Inc., 2021 FCA 34 at paras. 19–21; Kiame c. Syndicat des employées et employés nationaux (Alliance de la fonction publique du Canada), 2024 CAF 103 at para. 13.
[71] The foregoing statutory and regulatory provisions authorize the Board to proceed in the manner it did. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 [Ocean Port], the Supreme Court of Canada confirmed that, "“… absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice”" (at para. 19). While Ocean Port dealt with the independence of an administrative decision-maker, the foregoing principle applies equally to other aspects of procedural fairness, including the requisite notice of hearing: see Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022) (QL) at §2.05; Halsbury’s Laws of Canada (online), Administrative Law (2022 Reissue), "“Judicial Review: Requirement of Procedural Fairness: Specific Rights: Right to be Heard”" (V.3.(4).(b)) at HAD-93 "“Nature of right”"; Shephard v. Fortin, 2004 FCA 254, 325 N.R. 158 at para. 27. Given the authority of the Board, in particular, to hold hearings in illegal strike applications "“forthwith”" after service of an application made under section 91 of the Code, the CIRB was entitled to schedule the hearing on very short notice. At paras 88-113 the court considers several other strike issues on a JR reasonableness standard.
. Ball v Kingston Area Taxi Commission
In Ball v Kingston Area Taxi Commission (Div Ct, 2011), six days prior notice of hearing was held inadequate for SPPA [SS: s.6(1)] purposes, particularly in light of the fact that the applicant was incarcerated at the time and had sent a layperson to speak to the matter.
. 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.
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