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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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9. Calculation of Time

(a) Overview

There are numerous instances throughout the RTA, its General Regulation and the Rules where timelines apply - in particular to the notice period for a Notice of Termination, and the limitation periods that apply for the filing of a Notice of Application after the date of termination set out in a Notice of Termination.

This section explains how to count time for these purposes, and the rules governing when the Board can extend or shorten timelines.

(b) Basics

The most basic rule to keep in mind when calculating time between two events (eg. service of Notice of Termination and date of termination) is to exclude the day on which the first event occurs, and include the day on which the second event occurs [Act s.193, R1.13].

When a number of days is set for something to be done, those days are calendar days [R1.12]. Any previous rules that counted only business days (ie. time for filing) are abolished.

Remember as well that mail service is only effective on the fifth day after mailing [Act s.191(3)] - so if a document is mailed, it is not effective until the fifth day after it is mailed.

(c) Holidays and their Effect

. Holidays

By the Rules [R1.1], "'holiday' means any Saturday, Sunday or other day on which the LTB's offices are closed". In past (pre-2019) the Rules indicated specifically which days they considered "non-business days" which were days that LTB offices and ServiceOntario offices were closed. So this present 'days closed' definition doesn't help with clarity, in difficult cases you'll have to check specific day as to whether the LTB's office was in fact closed (eg. bad snow storms).

The Ontario Legislation Act has a list of days considered "holidays" [s.88], following . So I repeat that here for convenience without any warranty as to whether LTB offices are closed those days:
  • Sunday, [remember, 'Saturday' is an express LTB holiday]
  • New Year's Day,
  • Family Day,
  • Good Friday,
  • Easter Monday,
  • Victoria Day,
  • Canada Day,
  • Labour Day,
  • Thanksgiving Day,
  • Remembrance Day,
  • Christmas Day,
  • Boxing Day,
  • any special holiday proclaimed by the Governor General or the Lieutenant Governor.
When New Year’s Day falls on a Sunday, the following Monday is also a holiday. When Christmas Day falls on a Saturday, the following Monday is also a holiday, and when it falls on a Sunday, the following Tuesday is also a holiday. When July 1 is a Sunday, Canada Day falls on July 2.

. Effect of Holidays

When the time for concluding the thing occurs on a holiday, the time is extended to the next day that is not a holiday [R1.14] - but this is subject to major exceptions.

Exceptions for this are twofold: [1] "(a) notice or document may be delivered to a party or a person on a holiday" and [2] "a notice may take effect on a holiday" [R1.15]. Great care must be taken in distinguishing the application of these exceptions.

Exception 1: Delivery of Notice or Document

The first of these exceptions, ie. 'delivery of notices or documents' - is fairly straightforward, just count calendar (ie. all days, including holidays and weekends) days in the time period. So if you have a time period running 15 days, count the holidays and weekends. So a time period would could like this:
a. notice delivered 8th of month - day zero [first day not counted: R1.13]
b. 9th of month - day one
c. 23rd of month- day fifteen [time period expires on the 23rd]
Exception 2: Expiry of Notice

For the second, which only applies when a notice period expires, also count calendar days. So when in the above example the 23rd is a weekend or another holiday, it still 'counts' as the expiry day. So in that case if you had to do anything that requires offices to be open, you better do it before the expiry date.
Interestingly, the Legislation Act provides that "(t)ime limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday [s.89(1)]". I have not assessed the impact of that provision against the LTB Rules.
(d) No Waiver or Variance of Counting Rules

Rule 1.16 reads simply that:
Rules 1.12 to 1.15 may not be waived or varied.
These are the rules set out in (b) and (c) above. This means that the rules may not be waived varied, not the time period.

Extending or shortening the time periods is the subject of specific (and complex) rules, next following.

(e) When Extending or Shortening Time Periods is Allowed and Prohibited

. Overview

The subject of extending and shortening time periods is quite complex, partly because the RTA regime has so many different time periods.

. Which Time Periods May Be Extended or Shortened

The Board may extend or shorten the counting of time for the following purposes [Act s.190(1,2)]:
(i) making above-guideline rent increase applications under s.126 [see Ch.11];

(ii) application to the Board for determination of reasonableness of refusal of consent to assign mobile home park site under s.159(2) [see Ch.2, s.4];

(iii) applying to the Board for a review of an inspector's work order under s.226 [see Ch.3, s.4(d): "Tenant Rights, Responsibilities and Remedies: Repairs, Vital Services and Maintenance: Maintenance Standards"], and

(iv) any other time period, not listed immediately below [Act 190(2), Reg 56].
This last category leaves it open for parties to find time periods that are not listed in Reg 56, below - something which I have not done.

. Which Time Periods May Not Be Extended or Shortened

The following time periods may not be extended or shortened [Reg 56]:
  • "All time requirements related to notice requirements for terminating tenancies";

  • "All deadlines for filing applications", except those listed in (i-iii) in "Which Time Periods May Be Extended or Shortened", above.

  • "The 24-hour notice required under subsection 27 (1) of the Act."

    These are the 24-hour entry with notice provisions [see Ch.3, s.3(f)].

  • "The 72-hour period referred to in subsection 41 (2) of the Act."

    This is the 72-hour time period that a landlord has to wait before they can "sell, retain or otherwise dispose" of a tenant's property after enforcement of an eviction order [see Ch.8, s.4(b)].

  • "The six-month periods referred to in subsections 42 (7), 92 (3) and (4) and 162 (4) and (5) of the Act";

    These are the six-month periods as follows:

    • where a landlord has given notice to the tenant of their "intention to dispose of the property", and the tenant has six months to claim proceeds of sale [see Ch.8, 4(c)];

    • six months for estate's claim on property or proceeds of property sale after death of tenant [see Ch.8, s.4(1)(d)];

    • six months for tenant's claim on mobile home or proceeds of sale after abandonment [Ch.2, s.4(f)].

  • "The 30-day period referred to in subsection 46 (1) of the Act."

    This is the 30 days after termination that a Notice of Termination has before it voids for not starting an LTB application in that time (not applicable to failure to pay rent terminations) [see Ch.4, s.2(e)].

  • "The period described in subsection 77 (5) of the Act during which an eviction order is not effective."

    This are the dates when an order to terminate and evict on a tenant's notice or an agreement to terminate is not effective (before the dates specified in the notice or agreement, respectively) [see Ch.4, s.3(e)].

  • "The period described in subsection 80 (1) of the Act, subject to subsection 80 (2) of the Act, during which an eviction order is not effective."

    These are the dates before which eviction orders may not be effective (the date of termination set out in the notice, with exceptions).

  • "The 30-day period referred to in subsection 91 (1) of the Act."

    This is the time period to termination after the death of a sole tenant [Ch.4, s.1(d)]

  • "The seven-day period referred to in clause 95 (4) (d) of the Act."

    This is the time period that a tenant has to wait after requesting a landlord to consent to a specific assignment of the tenancy [see Ch.1, s.5(d)].

  • "The 60-day period referred to in subsection 104 (3) of the Act".

    This is the time period an overholding sub-tenant has to enter into a tenancy agreement with a new negotiated rent level [see Ch.1, s.5(f)].

  • "The 90-day notice period required by sections 116 and 150 of the Act."

    These are the time periods for notice of rent increase [see Ch.10, s.2(a)] and notice of increase of care home services and meals [see Ch.2, s.3(g)].

  • "The 12-month period referred to in subsection 119 (1) of the Act."

    This is the time period that a landlord must wait before increasing rent [see Ch.10, s.3(b)].

  • "The five-day period in which an agreement to increase the rent charged may be cancelled under subsection 121 (4) of the Act."

    This is the time period that a tenant has to cancel an agreed increase in rent due to specified capital expenditures or services changes [see Ch.12, s.5(c)].

  • "The six-day period referred to in subsection 121 (5) of the Act."

    This is the time period that an agreement for an increase in rent due to specified capital expenditures or services changes cannot be in force [see Ch.12, s.5(c)].

  • "The one-year period after which rent and rent increases shall be deemed to be lawful under subsections 136 (1) and (2) of the Act."

    This is the time period after which an unchallenged rent level is deemed lawful [see Ch. 10, s.4(b)].

  • "The five-day period in which a tenancy agreement may be cancelled, as described in section 141 of the Act."

    This is the time period that a care home prospective tenant may cancel the tenancy agreement [Ch.2, s.3(c)].

  • "The 10-day period referred to in subsection 145 (2) of the Act."

    This is the time period in which a terminating care home tenant has to give notice of termination of care and meal services [see Ch.2, s.3(e)].

  • "The 30-day period referred to in subsection 206 (6) of the Act."

    This is the time period that a landlord has to move to re-open an unmediated settlement of a non-payment of rent application [see Ch.7, s.10(d)].

  • "The 60-day period referred to in paragraph 2 of subsection 3 (3) of this Regulation."

    If a spouse vacates within 60 days after the tenant leaves, the spouse can't qualify as the (new) "tenant" for purposes of spousal assumption of the tenancy [see Ch.1, s.4(c)].

  • "The 45-day periods referred to in paragraphs 4 and 5 of subsection 3 (3) of this Regulation."

    These are 45-day periods for a landlord to give notice to a spouse, after an in-arrears tenant leaves, that they must agree to take over the tenancy or agree to pay rent arrears. If the spouse doesn't respond positively to this notice or the landlord obtains an order evicting the spouse an unauthorized occupant, the spouse can't qualify for purposes of spousal assumption of the tenancy [see Ch.1, s.4(c)].
(f) Procedures to Extend or Shorten Time Periods

. Overview

Normally in legal proceedings there are two methods used to extend or shorten time periods (practically almost all of these are to extend time periods, so I'll just refer to that), roughly equivalent to the difference between a 'motion on notice' and a 'motion without notice' in civil court procedure. I'll call these 'formal requests' and 'informal requests', respectively. Informal, no-notice requests are properly used when the party is caught by surprise at the last minute by something that they could not have foreseen.

On top of this normal and unavoidable procedural circumstance the Rules draw a distinction between when a request is made with or without the document (motion, application or request) which is the subject of the extension of time request.

. Formal and Informal Requests to Extend or Shorten Time

'Formal' (with notice) requests for extensions are what you would expect. They are governed by Rule 16.1, which reads:
Except where an extension of time is prohibited by the RTA [SS: Reg 56], the LTB may consider a request to extend or shorten time for doing anything if the request is:

. in writing;
. provides reasons in support of the request; and
. filed as required by these Rules.
As for informal (without notice) requests, the LTB really doesn't want them to happen, but they will inevitably. Note the language of R16.1: "the LTB may consider ... if the request is in writing" - not that 'writing' is mandatory for requests. R16.1 creates an implicit, but false, procedural 'should' - really an administrative wish against litigation reality.

. Requests With or Without Document (Motion, Application or Request)

The next topic is another LTB attempt to achieve a world as they wish it. The following extension requests, "absent exceptional circumstances ... must be filed together with the motion, application or request" [R16.2]:
. landlord's motion to set aside an order made under s.74(6);
. tenant's motion to set aside an order made under s.77(4);
. tenant's motion to set aside an order made under s.78(6) or (7);
. landlord's application for a determination of whether grounds for refusing consent to an assignment of a site for a mobile home are reasonable;
. landlord's request for a review of a work order;
. request to amend an order; and
. request to review a decision or order
But "exceptional circumstances" are many - and the Rule does not say what happens when people want an extension and do not file the subject document in other cases [that survive the prohibitions set out in (e) above]. The logical conclusion is that R16.2 does not apply to those other cases.

The rules recognize the reality that subject documents will not always be ready at the time of an extension requests, by them requiring that - when such a request is granted - a date be ordered by which they will be filed (with filing fee), "failing which the document will be refused" [R16.3].

. Criteria

The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules [R16.4]:
. the length of the delay, and the reason for it;
. any prejudice a party may experience;
. whether any potential prejudice may be remedied;
. whether the request is made in good faith; and
. any other relevant factors.
. Other Procedural

A few other rules are:
  • such a request may be decided "without requesting submissions from other parties" [R16.5]; and

  • a party may only make one request to extend or shorten "the same time requirement" [R16.6].
There is another rule, which reads: "(i)f the request to extend or shorten time is granted, the document is deemed to be received on the date on which the party filed it" [R16.7]. I can't figure it out, as it seems that the date of 'receipt' and 'filing' are the same - if anyone knows why this rule exists please explain.

10. Summary Dismissal

(a) Overview

Over the last few years administrative tribunals have started to develop a series of procedures for quick disposition of cases, similar to what the courts have had for years ("summary judgment motions").

Firstly, all SPPA-governed tribunals (which includes the Board) have general procedural authority available to them, to "may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes" [SPPA s.23(1)], as is explained at this SPPA program link:

Administrative Law (Ontario)(SPPA): Ch.5: Summary Proceedings

'Abuse of process' is a relatively recent doctrine, and several cases are extracted at this 'Latest Word' link:
Abuse of Process

Next, the SPPA grants it's tribunals "rule-making authority" to address situations where dismissal may be justified for "cause". Such "causes" can include proceedings being brought in "bad faith", "frivolous or vexatious" or beyond jurisdiction [see (b) and (c) below]. This authority is explained further in this SPPA program link:

Administrative Law (Ontario)(SPPA): Ch.20: Summary Dismissal for Cause

Next, the SPPA allows its tribunals to refuse to process documentation that it considers inadequate regarding contents and other reasons [see (d) below]. This SPPA authority is discussed more fully at this link:

Administrative Law (Ontario)(SPPA): Ch.19: Tribunal Refusal to Process

All of these authorities, to greater and lesser extents, are utilized by the Board in making the summary procedure rules discussed below.

(b) Summary Refusal and Dismissal of Applications for Cause

. Overview

The Board may (typically through the decision of a single presiding member) (1) dismiss an application without a hearing or (2) refuse to accept an application for filing, if it is of the opinion that the matter [Act s.197(1)]:
  • is frivolous or vexatious,

  • has not been initiated in good faith, or

  • discloses no reasonable cause of action.
. Frivolous and Vexatious

What constitutes being "frivolous and vexatious" is a very broad category drawn from civil litigation and the old Ontario Vexatious Proceedings Act. Some of the types of situations it can encompass include (but are not limited to): matters that are extremely minor (what lawyers would call "de minimus"), matters that are repeatedly litigated despite already being finally resolved (res judicata), and matters where the behaviour of a party is repeatedly disruptive and abusive.

These situations sometimes occur amongst those with mentally disabilities, particularly those with schizophrenic or dementia-induced paranoia. If this is suspected to be the case a greater burden lies on both the Board and any legal professionals involved to ensure that the disability of the would-be applicant is accomodated to the extent possible. Boards in particular should be loath to dismiss such a matter without hearing, and should consider holding hearings to determine if - through any overlay of delusion - any legitimate legal issues are present.

"Frivolous and vexatious" matter can closely resemble, and sometimes overlap, matters that are "initiated in bad faith".
Case Note: Goble v Vranjes (Div Ct, 2010)

On a tenant's Divisional court appeal of a Board order requiring payment of rent arrears by way of increased monthly rent, backed by a s.78(1) condition that on breach the landlord could move ex parte for eviction, the landlord responded with a motion to - amongst other things - to quash the appeal as being frivolous and vexatious. On uncontested affidavit evidence the court found that the tenants had engaged in a course of litigation conduct (which it characterized as a "scam") designed primarily to impede the landlord from regaining possession of the premises so that they could live there continuously rent-free. Applying it's "frivolous and vexatious" jurisdiction under s.140 of the Courts of Justice Act (CJA), and its general CJA s.134(3) authority to quash an appeal, the court quashed the appeal. Having done so, and while characterizing the tenant's written submissions as generally without merit, the court did not engage in any any detailed consideration of those arguments.
. Bad Faith

"Bad faith" is similarly a broad term that can roughly be equated with "ulterior motives". Examples might include an intent to harass another party, political attempts to 'clog the Board' with repeated meritless applications, and continued pressing for remedies for the same cause of action before both the Board and in the civil courts.

. Disclosing No Reasonable Cause of Action

Civil proceedings in the court have what is called a "non-suit" motion, designed especially for situations where it is alleged that that the matter "discloses no reasonable cause of action". Such motions generally operate by presuming all the factual allegations to be true from the pleadings, and then examining any remaining legal issues for merit. Obviously, if all of one's alleged facts are proven true - and still no case remains - then the case overall has no merit.

This ground of summary dismissal might also be available there is a defect in the jurisdiction of the Board to properly deal with the matter before it [such defects may occur in relation to any of several jurisdictional aspects of the case: see s.3 "Board Jurisdiction", above] - although a 'stay' (suspension) of proceedings is the traditional legal response to absence of jurisdiction.

(c) Additional Summary Dismissal: False or Misleading Documentation

The Board may (typically through the decision of a single presiding member) dismiss an application without a hearing if it "finds that the applicant filed documents that the applicant knew or ought to have known contained false or misleading information" [Act s.197(2)]. This authority is really an expression of the broad "bad faith" cause for summary dismissal discussed above.

Note that this standard applies to "filed documents" only, and that it extends to any of the following types of information:
  • intentionally false;

  • intentionally misleading;

  • negligently false;

  • negligently misleading.
"Negligently" as I use the term here applies to situations where a party had a duty to (ie. "ought to") verify the reliability of the information they put forward, but failed to reasonably fulfill that duty. This standard does not require complete accuracy, just "reasonable" and good faith efforts to ascertain and convey accurate information - and to reflect any uncertainty uncovered or known.

(d) Documents With Inadequate Content

Broad authority lies in the Statutory Powers Procedure Act (SPPA) for tribunals to make rules as follows [4.5(1-3)]:
Subject to subsection (3), upon receiving documents relating to the commencement of a proceeding, a tribunal or its administrative staff may decide not to process the documents relating to the commencement of the proceeding if,

(a) the documents are incomplete;

(b) the documents are received after the time required for commencing the proceeding has elapsed;

(c) the fee required for commencing the proceeding is not paid; or

(d) there is some other technical defect in the commencement of the proceeding.
One brief LTB rule addresses this authority respecting inadequate content:
An application which is incomplete because it does not include documents required by the RTA, regulations or Rules will not be accepted.
There may be some issue as to the validity of this rule, as the SPPA authority that it relies on also requires that:
A tribunal or its administrative staff shall give the party who commences a proceeding notice of its decision under subsection (1) and shall set out in the notice the reasons for the decision and the requirements for resuming the processing of the documents.
The Board may be thinking that they avoid this rule [and all of SPPA s.4.5 for that matter] by not 'receiving' or 'accepting' such documents (ie. refusal at the counter or sending by return mail), or by not thereby initiating an application. However, it is a fine (perhaps non-existent line) between that and a 'refusal to process' as is countenanced in SPPA 4.5. Summary dismissal of any case is challengeable, especially given the several basic rights that people have under the RTA to make various applications, eg.:
A landlord may apply to the Board for an order terminating a tenancy and evicting the tenant if the landlord has given notice to terminate the tenancy under this Act or the Tenant Protection Act, 1997.
A similar issue of refusing or suspending new proceedings when a person is in arrears of 'fine, fees or costs' is addressed in this chapter at s.3(b) ["Board Jurisdiction: Parties"], above. It is the subject of R6 of the LTB Rules.

(e) Comment

The function of these various summary refusal and dismissal powers is to serve the convenience and logistical efficiencies of the Board and the "other" parties, in itself a worthwhile policy goal.

On the other hand what they risk - if improperly applied - is the complete abrogation of the would-be applicants' rights with respect to the matters involved. Except where the issue is jurisdictional (eg. an allegation of "wrong forum"), the application of these rules risks a denial of the rule of law.

As such - as especially where abuse of process is suggested, it seems appropriate that these powers should be used very conservatively - and only after clear grounds or provocation can be plainly shown on the documentary record alone. Any uncertainty in this regard should require the matter to proceed to hearing so that testimonial evidence can be called on the summary dismissal issue as a preliminary matter.

11. Document Disclosure

(a) Overview

The Board has enacted authority given to it under the SPPA [s.5.4] to make rules regarding pre-hearing disclosure of documentary evidence amongst parties. This authority, which cannot extend to privileged material, is discussed in the SPPA program as linked here:

Administrative Law (Ontario)(SPPA): Ch.14: Document Disclosure

(b) Case-by-Case Disclosure

While the Board has used this authority in making Rule 19: "Disclosure and Evidence", it has not [with limited exceptions, see (c) below] imposed a general duty of disclosure of documentary evidence in all applications before it. Rather it has simply authorized each presiding Board to require disclosure on a case-by-case basis, on such schedule as the Board may impose [R19.1].

The sanction for failing to disclose as directed is that the party failing "may not rely on the evidence that was not disclosed as directed or ordered, unless otherwise ordered" [R19.2].

(c) Disclosure of Electronic Material

The only rule-required 'disclosure' is when a party intends to use "electronic material (audio or video recordings, emails, text messages, social media posts)". Copies of the material are to be supplied to the other parties and the LTB "at the hearing". This is not really a disclosure duty, as it is normal practice at hearings to provide copies of all evidence to the Board and other parties when adducing it.

"Where this is not possible due to the document's format or size of the electronic material, the Member will require the party to file a copy with the LTB by a specified date". If the copy is not filed as directed, the electronic material will not be considered part of the hearing record or considered when making the decision" [R19.3]. This part of the rule (for 'awkward' material) appears to allow this material to be delivered after the hearing.

12. Pre-Hearing Conferences

(a) Overview

The Board has enacted authority given to it under the SPPA [s.5.3] to make rules for "pre-hearing conferences" at which the parties, with the facilitation of a Board member or staff person may [R8.2]:
  • identify and simplify the issues in dispute;

  • identify agreements on facts or evidence;

  • set dates by which any steps in the proceeding are to be taken or begun;

  • estimate the length of hearing; and

  • make any other agreements or directions that are appropriate.
This authority is discussed in the SPPA Legal Guide as linked here:

Administrative Law (Ontario)(SPPA): Ch. 13: Pre-Hearing Conferences

(b) Pre-Hearing Conference

The decision to hold a pre-hearing conference will be exercised by the Board on a case-by-case basis [R8.1]. If a pre-hearing conference is held, the Board may make procedural orders (eg. disclosure) or directions to facilitate the holding of the full hearing.

13. Motions and Interim Orders

(b) Overview

"Motions" in modern legal practice are traditionally used in a range of different legal proceedings as sort of mini-hearing dealing with (primarily) procedural issues before or at the hearing of the main case. For example, in civil litigation motions are used for interim orders for such things as amending pleadings, summary judgments, motions to dismiss on legal grounds alone, joining and severing parties, adjournments and numerous other steps.

The Board defines 'motions' as "a motion in any proceeding or intended proceeding" [R1.1], and rudimentary 'motion' procedures are set out in the Rules as follows:
A motion by a:
  • tenant asking to set aside an ex parte order;
  • tenant asking to void an eviction order for arrears;
  • landlord asking to set aside an order voiding an eviction; or,
  • landlord asking to increase rent above the guideline because repairs, replacements or other work have been completed
must be served at least 48 hours before the time set in the Notice of Hearing.

All other motions must be served as soon as possible and, in any event, at least 10 days before the hearing date set in the Notice of Hearing.
But otherwise the Rules have no generic 'motion' procedures, nor the Forms a generic 'motion' form. RTA practice uses the concept of the "motion" quite ambiguously - often referring to it as the authority that the Board has to almost spontaneously make procedural Orders "on its own motion". This usage is a source of uncertainty in the RTA scheme regarding the procedures to be followed by parties to achieve desired procedural results.

While there is no express, specific requirement in the SPPA for tribunals to adopt the use of motions for such purposes, it seems plain that the general procedural authority granted by that Act is broad enough to encompass the use of motion-type procedures, both without [SPPA s.25.0.1] - and with [SPPA s.25.1] - the making of additional "Board Rules".
SPPA s.25.0.1
A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

SPPA s.25.1(1)
A tribunal may make rules governing the practice and procedure before it.

The rules may be of general or particular application.
In addition, the Board (like any SPPA tribunal), has authority to:
  • "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes" [SPPA s.23]; and

  • to "make interim decisions and orders" [SPPA s.16.1].
That said, as will be seen below, enough "motion"-type authority [Rule 1.4, 1.6] is set out in the Board Rules that it is apparent that they are perceived of as an integral element in the RTA procedural framework, though practitioners may have to draw on document precedents from their other legal experience.

(b) Motion-Type Authorities

The Rules do grant the presiding Board rudimentary procedural authority for what are normally consider motions:
The LTB will decide how a matter will proceed, may reschedule proceedings on its own initiative, may make procedural directions or orders at any time and may impose any conditions that are appropriate and fair.
Indeed, this authority gets quite extensive and specific:
In order to provide the most expeditious and fair determination of the questions arising in any proceeding the LTB may:
  • waive or vary any provision in these Rules and may lengthen or extend any time limit except where prohibited by legislation or a specific Rule;
  • add or remove parties as it considers appropriate;
  • join applications or hear applications together where it is fair to do so;
  • sever applications or sever parts of an application;
  • conduct any inquiry it considers necessary or request any inspection it considers necessary;
  • direct a party to deliver a notice or document to another party or person in any manner that is appropriate;
  • allow a party to amend any filing;
  • amend an application on its own motion where appropriate, on notice to the parties;
  • view a premise which is the subject of an application;
  • direct parties to attend a CMH or a pre-hearing conference;
  • direct the manner in which a party may communicate with the LTB;
  • direct the order in which issues, including issues the parties consider to be preliminary, will be considered and determined;
  • define and narrow the issues to be decided;
  • question a party or witness;
  • order disclosure of evidence;
  • limit the evidence or submissions on any issue where satisfied there has been full and fair disclosure of all relevant matters;
  • exercise its discretion to permit a party's legal representative to give evidence where appropriate;
  • make interim decisions or orders;
  • dismiss an application which is frivolous and vexatious, has not been initiated in good faith or does not disclose a reasonable cause of action on its own motion and without a hearing;
  • refuse to consider a party's evidence or submissions where the party has not provided the evidence or submissions to the LTB and the other parties as directed by the LTB; and
  • take any other action the LTB considers appropriate in the circumstances.
It would also appear to be open to the Board to hear motions by way of either written or electronic hearings [see Ch.14, s.4: Hearings, Orders and Enforcement: Hearings"].

14. Adjournments and Scheduling

(a) Overview

It is an integral aspect of any administrative tribunal regime that either the administrative or the presiding Board (or both) have procedural authority to schedule and adjourn hearings as required by their workload and principles of natural justice [SPPA s.21, Act s.183].

Generally - the principles, practices and conditions likely to be applied by the Board in making adjournment decisions are set out extensively in Interpretation Guideline #1 which is linked here:

Interpretation Guideline 1: Adjourning and Rescheduling Hearings

(b) Pre-Hearing Adjournments of Hearings on Consent

'Consent adjournments' is misleading. The LTB rules allow parties to request a hearing adjournment, before the hearing if [R21.1]:
. all parties consent (regardless of whether the notice of hearing and application have been delivered to the responding party or not);

. no prior adjournments have been granted.
Despite this clarity, the Rules anticipate parties wanting to engage in repeated adjournments, as "the LTB will not consider a request to reschedule a hearing that has been adjourned before unless it is received more than two business days before the scheduled hearing" [R21.2].

In any event, parties making an adjournment request "must file a list of the dates each party and any representative is unavailable to attend a hearing in three months after the date of the scheduled hearing" [R21.3].

The "(p)arties must contact the LTB to learn whether the request is granted and, if granted, the date of the rescheduled hearing. If the request is denied, the hearing will proceed on the scheduled date" [R21.4].

(c) Adjournments at Hearing

The Rules also allow adjournment requests at the beginning of the hearing [R21.7].

The criteria that the Board shall have regard on such a request include [R21.8]:
  • the reason for the adjournment and position of the parties;
  • the issues in the application;
  • any prejudice that may result from granting or denying the request; and,
  • the history of the proceeding including other adjournments or rescheduling.
(d) Adjournment of Case Management Hearings (CMH)

Case Management Hearings are not mandatory, but the Board will schedule them when they think it appropriate. Failure to attend and participate in a CMH by an applicant can result in the dismissal of the application, and by a respondent in the deemed acceptance of all the allegations in the application and no further notice of procedings (including the hearing) [R9].

"Requests to adjourn a CMH will only be considered in exceptional circumstances." Criteria for deciding whether to adjourn a CMH include [R21.5]:
  • the nature of the issues raised in the application;
  • any prejudice that may result from granting or denying the request; and
  • positions of the parties.
"Where a CMH is adjourned, the LTB will make any order, or give any direction, it considers appropriate for the fair, just and expeditious hearing of the issues in dispute, including denying any further adjournment requests unless there are exceptional circumstances, requiring payment of money to the LTB and ordering costs" [R21.6].


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Last modified: 19-01-23
By: admin