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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Appeal-Judicial Review - Copied Reasons

. Shnier v. Begum

In Shnier v. Begum (Div Court, 2023) the Divisional Court considered an RTA eviction appeal where the issue was whether a contractual yearly renewal option prohibits the landlord from serving a personal possession termination on the annual renewal.

In these quotes the court considered an argument of LTB 'boilerplate reasons' as a matter of procedural fairness, here on a decision to decline a review (reconsideration):
Did the Board in review deny the Appellant procedural fairness by issuing inadequate or “boilerplate” reasons for dismissing his request for a review?

[27] The Appellant sought a review of the Board’s decision, which under Rule 26.8(e) of the Landlord and Tenant Board, Rules of Procedure, September 1, 2021, need only establish a “serious error” made by the Board at first instance. He submits that the reasons rejecting his request for a review hearing were seriously deficient, amounting to cursory “boilerplate.”

[28] The reasons on review read as follows:
ln the request, the Tenant makes several submissions rearguing their position and submitted case law in support of their position.

The Tenant identifies several points they believe to be errors in law. However, in my view, concerns identified by the Tenant in their request is in fact the Tenant rearguing their position, which should have been submitted at the hearing held on February 3,2022.

A request to review is not an opportunity for a party to re-litigate or reargue their position in hopes of a more favorable outcome. Nor is it an opportunity to present evidence and submissions that could and should have been presented at the hearing.

In the request to review, the Tenant does not identify any serious error in the order or in the Board's proceeding.

On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

It is ordered that:

The request to review order TNL-34432-21 issued on February 7,2022, is denied. The order is confirmed and remains unchanged.
[29] The application of the principles of procedural fairness to procedures adopted by a statutory tribunal benefit from considering the well-known Baker factors in the relevant context of the tribunal’s procedural options. Here, as a creature of statute, the Board is directed by the Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 183 as follows:
183 The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
[30] The request to review followed a full hearing on the merits, at which the parties gave evidence, were able to cross-examine and test the evidence, and make submissions. They received written reasons from the Board on all of the matters in issue. The request to review came before a different Board member who provided reasons in writing. Those reasons revealed an awareness of the allegations of errors in law, case law in support and the reviewing Member’s conclusion that there were no errors of law, and that the arguments were an attempt to relitigate findings of the Board that had been made.

[31] Taking these procedural steps into account, and applying the Baker factors to the review stage, I conclude as follows:
(1) the nature of the decision and the process followed in making it were aligned with fairness principles—the parties had the benefit of a full hearing prior to the review process and although the decision is an important one, the review took place as a secondary review, and not as a final potential step in the process. If there had been errors of law made by the Member at first instance, these are subject to correction on appeal;

(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates—s. 183 provides for expeditious methods which is aligned both with the importance of regulating rental housing which often affects vulnerable members of the population and is responsive to the high volume nature of the work of the Board. The review step achieves a balance and provides an intermediate level of oversight to the work of the Board conducting hearings, while ensuring that clear errors can be caught and corrected on a review hearing;

(3) the importance of the decision to the individual or the individuals affected—it is evident that housing is a critical factor in matters of health, well-being, stability and personal and community stability;

(4) the legitimate expectations of the person challenging the decision- the Board’s Rules allow for persons affected by its decisions to know the criteria and role of the review process; thus it can be said that the procedures adopted by the Board in conducting its reviews are not arbitrary and can create expectations that they will be carried out in accordance with its Rules. Here there is no suggestion that the Board did not carry out the review in accordance with its Rules and the reasons advert to the material put before the decision maker, who can be presumed to have read and considered them; and

(5) the choices of procedure made by the agency itself—the Board is an expert tribunal and is permitted by its statutory framework to make rules and procedures that are expeditious. This choice is reflected in the review process.

See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27.
[33] I find that on balance, the reasons provided on review although general in nature, do not amount to a failure to provide responsive reasons, particularly in circumstances where the review is a written record and submissions. I conclude that the Appellant was not denied procedural fairness in the request to review the Board’s decision.
. The Corporation of the City of Windsor v. Paciorka Leasehold Limited

In The Corporation of the City of Windsor v. Paciorka Leasehold Limited (Div Ct, 2021) the Divisional Court considered the issue of 'judicial copying' (although here it was by a tribunal) as an aspect of judicial independence:
[49] In Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, the Supreme Court of Canada addressed the issue of “judicial copying”. The Court held that judicial copying raises issues of natural justice because it goes to the issue of whether the decision maker decided the matter independently.

[50] In Cojocaru, at para. 22, the Court emphasized that there is a presumption of judicial impartiality and that the onus is on the party challenging the decision to rebut the presumption:
There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
[51] In Cojocaru, at paras. 35-36, the Court stated that “extensive” judicial copying is to be discouraged but that, on its own, it is not evidence of a lack of independence. The copying must be “of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision”. The Court also held that, while it is expected that adjudicators will make their decisions independently, it is not improper for some copying from the parties’ submissions to take place. The issue is whether the reasoning and assessment of the evidence occurred independently.


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Last modified: 05-10-23
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