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Administrative - Admin Law as Second-Class Law?. Casiechitty v. Imran
In Casiechitty v. Imran (Div Court, 2024) the Ontario Divisional Court dismissed an RTA s.210 appeal by a landlord, this from an LTB decision that "found the landlord was in breach of his maintenance obligations and substantially interfered with the tenants’ reasonable enjoyment of the unit" and awarded $10,000 rent abatement.
With respect to the court and tribunal involved, IMHO these passages show how degraded from any semblance of procedural consistency - and thus needed party predictability - both the LTB administrative law regime, and the court's appellate tolerance, have strayed in assessing fairness:[10] Although the Board member did not expressly offer the landlord an opportunity to cross-examine the tenant, the landlord by that time had been given ample opportunity to present his case. The landlord’s representative did not formally ask to cross-examine, although did say he had a question for the tenant. But the Board member was extensively involved in questioning the tenant. The landlord’s representative also interjected during that process and provided evidence where he disagreed. He was the primary source of evidence for the landlord, as he had been main person dealing with the tenant. The Board is entitled to control its process in this manner.
[11] When asked in this court what additional evidence the landlord wanted to elicit on cross-examination, counsel for the landlord said the landlord wanted to show the tenant had no documentary evidence of reporting maintenance issues at various times. This type of evidence was canvassed extensively in the hearing, with the Board member himself asking numerous questions to elicit evidence about when and how the landlord was notified of various issues. The Board member also questioned the landlord’s representative directly for his evidence on this point. The Board members reasons, at paras. 48 and 49, rely on the dates the landlord’s representative admitted to being aware of the leaks and flooring issues. At the hearing, the landlord’s reprsentative also expressly admitted to receiving the mould report after it was prepared in April 2023.
[12] Riddell v. Huynh, 2021 ONSC 4820 (Div. Ct.) is distinguishable. First, in that case, the party claiming a lack of procedural fairness was the tenant facing eviction. Here, the landlord faced a rent abatement, which resulted in being unable to collect arrears of rent of $10,000. Second, there, the breach of procedural fairness related to the denial of a critical document that was important to the tenant’s case. Here, the landlord says he should have been able to cross-examine the tenant on various factual matters where the Board member had already probed her evidence with extensive questioning and at the same time asked the landlord’s representative to provide his own responding evidence. There was no denial of procedural fairness in this case.
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