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Fairness - Limiting Evidence (2). Gorscak v. Jarzabek
In Gorscak v. Jarzabek (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, this brought against the termination of tenancy on grounds of RTA s.66 ['Termination for cause, act impairs safety'] in the context of a fire.
The court finds what I call a 'procrustes' administrative error, here where the court appeal was allowed when the LTB refused to admit material evidence on a s.83 eviction relief issue:[25] The appellant tenant submits that the Hearing Member refused to permit her to lead evidence that she was illegally locked out of her apartment for a period of time following the completion of the repairs and that this circumstance was relevant under s. 83 of the RTA for purposes of determining whether the application for an eviction.
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[28] At the hearing, the appellant tenant submitted that an eviction order would be unfair. On the issue of whether the appellant tenant was locked out, the Hearing Member stated:37. The Tenant’s Legal Representative submits that the actions of the Landlord and their alleged breaches should be considered in providing relief from eviction. Pursuant to section 83(3)(a) of the Act, I must refuse to grant eviction if “satisfied that, the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement.”
38. The Tenant’s Legal Representative submitted that the Landlord was in breach by failing to allow the Tenant to return to the rental unit unless she obtained insurance and relied upon the decision in [Puterbough v. Canada (Public Works & Government Services), [2007] O.J. No. 748]
39. There was no evidence presented during testimony of this issue. This issue was presented only as assertions from the Tenant’s Legal Representative during preliminary and final submissions. In any event, the Tenant has returned to the unit and has been residing there since August 1, 2023 without purchasing the required insurance. [Emphasis added] [29] There was no evidence presented on this issue because, as noted above, the Hearing Member refused to permit such evidence.
[30] The RTA states:83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection
(3) Without restricting the generality of subsection (1), the Board refused to grant the application, were satisfied that:
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement.
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards.
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding. [Emphasis added] [31] In Musse v. 6965083 Canada Inc., 2021 ONSC 1085, at paras. 52-58, C. Boswell J. stated:52 Section 83 mandates the Board to consider all of the prevailing circumstances before ordering an eviction, having regard to whether it would be unfair to refuse to evict.
53 Section 83 reflects the remedial nature of the legislation, and its tenant protection focus. See Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44 (Ont. C.A.) at para. 19.
54 While the granting of relief under s. 83 is discretionary, the consideration of all of the prevailing circumstances is not.
55 In my view, the Member did not take into account all of the relevant circumstances she was mandated to do. ...
57 Eviction is a remedy with obviously serious consequences for the tenant. This is particularly so in a very difficult rental market like that in Toronto, where available, affordable rental units are often few and far between, especially for low-income families like that of the tenant.
58 Section 83 plays an important role in the framework of the legislation and in mitigating the harsh realities of an eviction. It can only properly function in its intended role if the Board takes into account all relevant circumstances, as it is mandated to do. A failure to do so is an error in law. [Emphasis added] [32] I find that the Hearing Member erred in law did not take into account all of the circumstances, as required by s. 83(1) of the RTA. The Hearing Member’s refusal to permit the appellant to lead evidence of an alleged illegal lockout was a denial of procedural fairness.
[33] The LTB submits that it routinely interprets and apply s. 83(3) of the RTA to mean that the breach of the landlord’s responsibilities under the RTA must be ongoing in order to engage the mandatory relieving power under s. 83(3) of the RTA. However, that provision is subject to the broader discretion under s. 83(1) of the RTA to refuse to grant an eviction application unless it would be unfair to refuse to do so in the circumstances. The fact that the usual remedy for a tenant’s illegal lockout from their apartment is damages or a rent abatement under T2 application does not mean that it is an irrelevant circumstance under s. 83(1) of the RTA. Such an interpretation would be inconsistent with the “tenant protection focus” of the RTA: Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, at para. 19.
[34] Finally, the respondent landlord submits that this error of law did not result in a substantial wrong or miscarriage of justice sufficient to justify appellant intervention. I disagree. This issue of being locked out was a significant theme of the appellant tenant’s case. Even though the LTB is owed considerable deference in respect of its procedural decisions, the appellant tenant should have been permitted to present evidence, and cross-examine the landlord’s representative, so that she could have made her case that the eviction should be refused under s. 83(1) of the RTA (and possibly s. 83(3) of the RTA) on the grounds that she had been illegally locked out during her tenancy. Without that evidence, I cannot assess the strength of the argument nor the likelihood that it would have resulted in a refusal to grant an eviction or that it might have resulted in other relief being granted. Accordingly, I am not prepared to find that s. 134(6) of the CJA should be applied. . Paesano v. Coseco Insurance Co.
In Paesano v. Coseco Insurance Co. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a LAT SABS JR.
Here the court considers an administrative 'Procrustes' evidence issue as a fairness matter:The Applicant received a fair hearing
[74] The Applicant submits that she was denied a fair hearing because:(a) She was not permitted to call Dr. Berkhout at the hearing; and
(b) Her disclosure request was denied. [75] The Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, remains the starting point for an analysis of procedural fairness. The factors to consider include:(a) The nature of the decision being made and the process followed in making it;
(b) The nature of the statutory scheme and the terms of the statue pursuant to which the body operates;
(c) The importance of the decision to the individual affected;
(d) The legitimate expectations of the person challenging the decision' and
(e) The choices of procedure made by the agency itself. [76] In this case, the Statutory Powers Procedure Act, R.S.O. 1990, c. 22 (the "SPPA"), applied to the hearing before the Tribunal. Section 25.1(1) provides that a Tribunal may make rules governing the practice and procedure before it. Section 2 provides that any rule made by a tribunal shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. This is reiterated in r. 3.1 of the Licence Appeal Tribunal Rules.
[77] Rule 3.2 provides that the Tribunal may make such orders or give such directions in proceedings before it to control its process or to prevent abuse of its process.
[78] The Tribunal is in the best position to ensure that it maintains procedural fairness while balancing efficiency and participation by litigants before the Tribunal to ensure that there is natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560. It is "the master in its own house it also had the power to determine when it was most efficient and just to conduct a hearing of the appeal": Toronto (City) v. Avenue Road Eglinton Community Assn., 2019 ONSC 146, 84 M.P.L.R. (5th) 239 (Div. Ct.), at para. 60.
[79] The adjudicator made several procedural orders during the hearing and the Tribunal set out the reasons for their decisions in the written Decision.
[80] The Applicant made a request on the second day of the hearing that she be permitted to call Dr. Berkhout as a witness. Dr. Berkhout was the Applicant's treating physician on her recent admission to hospital. The Tribunal found that it would be unfair to allow a witness to testify without providing sufficient notice to the other side.
[81] The Tribunal relied on r. 9.2(b) that provides that a party must give notice of the witness it intends to call along with a brief description of the witness' anticipated testimony, at least ten days prior to the hearing. Rule 9.4 prohibits a party from calling a late witness to give evidence without the Tribunal's consent. The Tribunal found that the Applicant had Dr. Berkhout's notes by May 10, 2023, but only gave notice that she intended to call him as a witness on the second day of the hearing. The Tribunal found that it would be procedurally unfair to allow Dr. Berkhout to be called as a witness.
[82] There is nothing procedurally unfair about the Tribunal's decision and the Application cannot succeed on this ground.
[83] On the fifth day of the eight-day hearing, the Applicant made a disclosure request. The Tribunal denied the request. Although the Tribunal found the requested documents were relevant, the request was made late. The Applicant could have brought a motion in advance of the hearing but elected not to do so. The Tribunal noted that many of the documents requested were not in the Respondent's possession and obtaining them at this stage would result in an adjournment of the hearing. The Tribunal found that the delay would be more prejudicial to both parties than the potential probative value of the records requested.
[84] I find nothing unfair in the procedure at the hearing. It is within the Tribunal's purview to control its own process and procedure. The application cannot succeed on this ground.
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