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Administrative Law - Reconsideration - Shearer v Oz Commentary

1. Overview

The case of Shearer v Oz (Div Ct, 2021) is a prime example of the profound problems with the grafting of SPPA 21.1 administrative 'reviews' (also referred to as 'reconsiderations') onto otherwise sensible Ontario administrative law. Shearer was a Divisional Court judicial review (JR) application of an earlier LTB ruling, which was also appealed to the Divisional Court (under RTA 210, where only "questions of law" may be entertained) and subject of a 'review' under the LTB rules. The appeal was dismissed before the review was decided, and the review was later denied "on the basis of the conclusions reached by the Divisional Court" [para 2]. The JR application was argued - in part - on the basis that there were remaining 'non-legal' issues to be heard (although the JR judge noted that it did "not raise any ground for such a review that was not or could not have been the subject matter of the appeal that has been dismissed [para 2]).

On the filing of the JR application, Corbett J - the court's current workhorse administrative judge who has seen rafts of LTB matters during the COVID crisis (and I'm sure before that) - promptly initiated an RCP R2.1 'frivolous and vexatious' notice the applicants, which is basically a way of saying to them that 'I think this is silly, and an abuse of process, prove me wrong'. He also said that the JR was a 'collateral attack' on the LTB and appeal proceedings outcome that had preceded it.

2. Applicant's Issues

(a) Overview

The court characterized the applicant's arguments (that judicial review was still alive, after the appeal was resolved) as follows [para 4]:
(a) An appeal from the Landlord and Tenant Board is restricted to questions of law. They argue that there were procedural errors and unreasonable findings of fact, issues that may only be raised on an application for judicial review. Appeal rights do not foreclose an application for judicial review. [SS: Issue #1 "The Procedural Relationship Between RTA s.210 Appeals and Judicial Review"].

(b) The “review process” before the Landlord and Tenant Board and the appeal process in this court are “coextensive”. Pursuit of an appeal does not foreclose simultaneously or subsequently pursuing a review before the Landlord and Tenant Board. [SS: Issue #2 The Procedural Relationship Between RTA s.210 Appeals and SPPA 21.1 Reviews ]
(b) The Procedural Relationship Between RTA s.210 Appeals and Judicial Review

On the first issue ('The Procedural Relationship Between RTA s.210 Appeals and Judicial Review'), the court 'technically' endorsed the proposition that (in an adequate case, which this wasn't) - and given the RTA s.210 restriction on appeals to 'questions of law' - separate appeal and JR proceedings were possible. That is, one could advance the 'legal' issues in a statutory appeal, and any non-legal grounds (ie. issues of fact or mixed fact and law) in a judicial review.

However, what the court definitely distained what it called 'litigation by instalment' [para 5], that is the commencement of the JR [on 23 August 2021] (well) after the appeal had been dismissed [on 04 November 2020]. In part, Corbett J cited for this conclusion the 2020 amendment to the Judical Review Procedure Act which replaced the previous (roughly) six-months laches JR time limit with a new limitation period ["no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occured": JRPA 5(1)]. This amendment is, I'm sure, going to receive much attention in future for it's privative effect on Ontario administrative law.

The triggering event for a JR s.5(1) limitation to start running [ie. "the decision or matter for which judicial review is being sought"] were either the original LTB ruling [on 04 August 2020] or the review decision [on 21 July 2021] - depending on which proceeding was being challenged (and if both are being challenged by way of JR, presumably two court separate applications properly brought). Interestingly, while the review decision was arguably close to the 30-day JRPA limit [review decision on 21 July 2021; JR commencement on 23 August 2021], the court held that the review proceeding was rendered a nullity by the prior Divisional Court appeal dismissal [04 November 2020]. This was even though the LTB was apparently aware of the prior appeal dismissal and ruled on it later anyway [on 21 July 2021]. This new limitation period is what I call a 'soft' limitation, as it may be extended on (a) showing merits to the underlying case and (b) an absense of prejudice [JRPA 5(2)]. The court did not delve into grounds for an extension and held the JR limitation as being spent [para 6].

To summarize on this issue, if a party has both legal and 'other' (fact and/or mixed fact and law) grounds they should advance them simultaneously (or, to use the court's language: 'co-extensively') by both appeal and judicial review, respectively [para 5]:
The time to seek judicial review was the same time as to bring an appeal; it is improper to await the results of an appeal and then to commence an application for judicial review in respect to the same decision.
To me this conclusion - and in fact the whole thrust of JRPA s.5(1)'s new limitation - is contrary to the policy underlying the administrative doctrine of prematurity [Volochay v. College of Massage Therapists of Ontario (Ont CA, 2012)], which the Divisional Court has shown no hesitation in applying vigorously:
[68] The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.
It's obvious that the underlying rationale for the prematurity doctrine is that of avoiding a 'multiplicity of proceedings' [CJA 138], but this 'simultaneity' conclusion - both in the narrower context of the RTA, and in practically all other judicial review Ontario matters - throws a wrench into the works. Remember, the JRPA 30-day limitation triggers on "the date the decision or matter for which judicial review is being sought was made or occurred", a much more definite date that any sort of 'lawsuit as an adequate means' discoverability such as is expressly allowed for in Limitations Act, 2002 [s.5(1)(a)(iv)]. While this JR limitation is 'soft' with respect to extensions, it's 'hard' with respect to the commencement of counting of the limitation period.
Note 1: In para 6 the court states:
The applicants could have brought an appeal from the review decision of the LTB made in July 2021, although such an appeal would have, itself, been an abuse of process for the reasons I set out below.
This quote is useful for the argument that a party can appeal a review decision separately. After all, the RTA states plainly that you can appeal "an order of the Board" [RTA 210]. Conventional (and I think quite sensible) wisdom has been that after you lost at the LTB main hearing and st the LTB review that your next option was an appeal of both of those under RTA 210. But under the court's reasoning you would seem to have to initiate separate appeals of both the LTB main ruling and the review, in order to meet the 'hard' RTA 210(1) 30-day deadline [but see Fernando v Medallion Corporation (Div Ct, 2010)].
Note 2: Also in para 6 the court states:
The applicants may not seek judicial review of the review decision without having availed themselves of their appeal rights.
This struck me as unjustified. I think that the chances of a party having non-legal grounds for a judicial review stemming from a review decision are slim, as the review 'grounds' jurisdiction [originating in SPPA s.21.2(1), but relying for articulation on the LTB Rules] can be expected to narrow by virtue of natural review deference - but I don't see any grounds for the categorical 'no JR of review decisions unless appeal first' interpretation. Indeed, that interpretation seems directly counter to the conclusion that the court reaches in Issue #1 ['no sequential JR and an appeal'].
(c) The Procedural Relationship Between RTA s.210 Appeals and SPPA 21.1 Reviews

While in the immediately preceding sub-section the court essentially requires that (again, in an adequate case) RTA s.210 appeals and judicial reviews can (and should) be advanced simultaneously, it reach the opposite legal conclusion respecting appeals and reviews. This conclusion, that appeals and reviews cannot be advanced simultaneously [the court uses the term: 'co-extensively'], emanates from the court's related legal conclusion that when an appeal is dismissed any review proceedings afoot at that time are rendered null and void [para 7]:
Unlike an administrative appeal, an administrative review is not a necessary step in the process, and it is for the tenant to decide whether to appeal the original decision or to await the decision of a request for review.
The reasoning seems to be drawn from res judicata logic, that we require 'finality' of decisions - both for appeal purposes and - if no appeal is advanced - for purposes of allowing the parties to get along with their lives. The language of 'finality' occurs, not for the first time, in para 7 [ie. "This court hears appeals from the “final” order of the Landlord and Tenant Board."].

Where 'finality' occurs is stated by the court, at least at the appeal level, here [para 7]:
However, once the court has adjudicated on the appeal, the matter [SS: the review] is at an end ...
In the present case the LTB in fact issued it's dismissing review decision [on 21 July 2021], well after the appeal was dismissed [on 04 November 2020]. While the court says the LTB made the right decision, it downplays what is essentially it's functus status at that time.

But while adding the novelty of these new principles, it's obvious that the court is not at all certain of it's conclusions [eg. "in my view it is arguable", and "if I am wrong about that conclusion": para 7] so that we are ourselves thrown into doubt. And it is worth noting that the court does not cite a single authority for it's reasons, anywhere. This is consistent with my early website points that very little solid jurisprudence exists to define the role of SPPA s.21.1 reviews (also called 'reconsiderations') within the Ontario administrative law scheme. It is also worth noting that there is no statutory prohibition against SPPA 21.2 reviews and RTA 210 appeal being advanced simultaneously, something that one would clearly expect if it were so intended. Contrast the lax RTA treatment of reviews with that of the ODSP Act [General Reg s.70(2,3)] which extends the running of the 30-day appeal filing limit to when a reconsideration is decided.

3. The Automatic Stay

Another practical tenant problem is the automatic stay on appeal. If we follow the logic set out in this ruling, the automatic appeal stay [SPPA 25(1)] is not in effect while the review is being conducted. Parties, particularly tenants for whom lease contracts are not (normally) a business venture, would logically have to seek an LTB stay of the subject orders or else find themselves fighting over something already lost (ie. evictions already executed). The LTB rules can (and do at 03 December 2021: see R26.10) provide for such stays, but they are not automatic [the request asks a party to "describe any prejudice resulting from a refusal to grant the stay"]. The need for a formal stay is often lost on self-reppers, who form the majority of parties involved with both review and s.210 appeals. Indeed, the term 'automatic stay' on appeal is deceptive as the appellant must still obtain the stay document from the Divisional court and file it with the sheriff, something that seems unnecessarily cumbersome and risky for those unfamiliar with court procedures and/or the disabled.

4. Summary

Given the lack of cited cases in this ruling, and it's self-questioning conclusions, I think we can view this as a perhaps valiant attempt by Corbett J to 'sort out the mess' that SPPA 21.1 review have grafted onto Ontario administrative law - largely to provide himself with some guidance to deal with those similar cases coming down to road. But SPPA s.21.1 'reviews' will remain a huge live issue in Ontario admin law, really calling for profound statutory clarification.

To think that one can introduce into the time-honoured and common-law-based hearing system another near-equivalent proceeding - with the passage of a relatively minor SPPA provision, that gives even minor tribunals huge power over the fate of citizens with little or even no fairness and natural justice articulaton - is both scary and ill-considered. Now with the JRPA judicial review 30-day limitation period [JRPA S.5(1-2)] the second-level remedies of LTB parties (overwhemingly tenants) are massively confusing and ill-guided - and mostly importantly, nearly impossible to advance with any degree of procedural certainty. We deserve far, far better.


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