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Fairness - Non-Participation. Ali v. Capreit
In Ali v. Capreit (Ont Divisional Ct, 2025) the Divisional Court allowed an RTA appeal, here where an eviction was grounded at the LTB level by "a threat ... allegedly made to one of their staff in the management office" by a single mother of three.
Here the appellant did not attend the main LTB hearing on the argument that "she was not reasonably able to participate in the hearing":[2] No complaint was made to the police. But the landlord sought to terminate Ms. Ali’s tenancy under s. 61(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA) on the ground she committed an illegal act in the residential complex.
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Procedural Fairness
[7] Ms. Ali did not have a chance to challenge a serious allegation that she threatened to shoot someone in the office. A crime that requires proof, even under the civil standard of proof, of not only the actus reus but also the mens rea: R. v. McGraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72. Also, her long tenancy was terminated without any opportunity to present evidence or make submissions: see s. 83(1)(a) of the RTA.
[8] The review hearing that was conducted focused solely on whether Ms. Ali was not reasonably able to participate in the January 9, 2024, hearing. Not on whether Ms. Ali committed a crime. This was due to the fact the interim stay order of April 2, 2024, ordered that the review hearing would only consider this issue.[1]
[9] Section 209(2) of the RTA expressly permits the LTB to review orders on the grounds that a requester was not reasonably able to participate in the proceedings.
[10] The member who conducted the review hearing decided that she was not satisfied that Ms. Ali was not reasonably able to participate in the proceeding. In part, the member found that Ms. Ali had notice of the hearing and chose not to attend. Had this been the sole basis to deny the request for a rehearing, this would have been a factual finding that could not be impeached on appeal.
[11] However, Ms. Ali testified that she believed that paying the landlord the filing fee would resolve the matter without a hearing. The member did not disbelieve Ms. Ali on this and observed Ms. Ali indeed had a discussion prior to the January 9, 2024, hearing about the filing fee with the landlord’s legal representative. The member merely found her belief to be unreasonable and could not anchor a legitimate request to be heard on the merits. On this alternative basis as well, she found that Ms. Ali had not discharged her onus.
[12] I am mindful that the LTB has enacted Interpretation Guideline 8 which directs that the LTB will refuse requests for a review where the requestor’s absence was the result of negligence or it finds no reasonable explanation for the failure to attend: Gusain v. Arnold, 2023 ONSC 3765 (Div. Ct) at para. 48. I further recognize that a lack of diligence can constitute a reason not to grant a rehearing to avoid a waste of resources: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) at para. 8.
[13] That acknowledged, on the member’s alternate finding, Ms. Ali did not have an opportunity to be heard though she desired so. This is unlike the case of Gusain v. Arnold relied upon by the respondent where at para. 53 of the decision, the court relied on the finding the member conducting the review made that the requester landlord had an adequate opportunity to participate in the original proceedings.
[14] In King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ONSC Div. Ct.) though the tenant received proper notice of a hearing, the tenant made a mistake about when the hearing was to be held. A new hearing was ordered. At para. 3, the court said “[b]eing reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.” This holding has been followed in other cases where a tenant is the party adversely affected by an inability to participate in a LTB hearing: Zaltzman v. Kim, 2022 ONSC 1842 (Div. Ct.) at para. 3; Wright v. Lallion, 2024 ONSC 4132 [2] at para. 12. Given the inherent vulnerability of residential tenants and the purpose of the RTA (see s. 1), this generous interpretation makes sense.
[15] In principle, I see little to distinguish a sincere confusion about the resolution of a hearing after speaking with the landlord’s lawyer from a sincere confusion about the date of a hearing. Moreover, Ms. Ali has been diligent in pursuing a rehearing once she was notified of the initial decision: Zaltzman v. Kim, at para. 2. . Zarabi-Majd v. Toronto Police Service
In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission, that against a TPS discipline hearing finding where the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".
Here the court considered 'non-participation at hearing' as a fairness issue:C. The Hearing Officer’s decision to proceed in Ms. Zarabi-Majd’s absence was not procedurally unfair.
[20] When considering Ms. Zarabi-Majd’s allegations of procedural unfairness, the question for this Court is whether the Hearing Officer afforded Ms. Zarabi-Majd the requisite level of procedural fairness in light of the nature of the decision, the nature of the statutory scheme, the importance of the decision to the Applicant, the legitimate expectations of the Applicant and the procedure followed by the Manager: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27. There is no applicable standard of review.
[21] Ms. Zarabi-Majd argues the discipline hearing was procedurally unfair because it proceeded in her absence. We disagree.
[22] The Hearing Officer had discretion to proceed in Ms. Zarabi-Majd’s absence if satisfied that Ms. Zarabi-Majd was given notice of the hearing and failed to attend: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 7(1).
[23] The Hearing Officer found that Ms. Zarabi-Majd was given notice of the hearing dates. The Hearing Officer also found that Ms. Zarabi-Majd made a “conscious, fully informed and educated decision” not to participate in the hearing. Finally, the Hearing Officer found that Ms. Zarabi-Majd understood the discipline hearing could proceed in her absence. Those findings were open to the Hearing Officer.
[24] Ms. Zarabi-Majd was served with a Notice of Hearing that required her to attend on November 1, 2022. She was clearly aware of the hearing dates because she brought two applications to adjourn the hearing. When those adjournment requests were denied, Ms. Zarabi-Majd, through her counsel, continued to take the position that she was not well enough to attend. Ms. Zarabi-Majd’s lawyer sent a letter to that effect to the Hearing Officer two weeks before the hearing.
[25] Ms. Zarabi-Majd was also aware the hearing could proceed in her absence. Counsel for the TPS brought a motion to proceed in Ms. Zarabi-Majd’s absence at the same time as Ms. Zarabi-Majd’s first adjournment application. The Hearing Officer declined to hear the TPS motion at that time. The Hearing Officer said she would consider the TPS motion only if Ms. Zarabi-Majd’s adjournment motion was dismissed and Ms. Zarabi-Majd failed to attend the hearing. Ms. Zarabi-Majd was, therefore, on notice that the hearing might proceed in her absence if she did not attend and if the TPS renewed its motion.
[26] The Hearing Officer’s factual findings that Ms. Zarabi-Majd was aware of the hearing dates and made a fully informed decision to not attend are unassailable. The Hearing Officer did not err in exercising her discretion to proceed in Ms. Zarabi-Majd’s absence and her decision to do so did not render the hearing procedurally unfair. . Sochnyeva v. Lawyers’ Professional Indemnity Company
In Sochnyeva v. Lawyers’ Professional Indemnity Company (Div Court, 2024) the Divisional Court allowed an appeal against a motion to "strike out the appellant’s statement of defence without leave to deliver any further statement of defence", here where the underlying allegation was that of fraudulent conveyance to defeat creditors.
Here the appeal was granted for problems in accessing Caselines:[4] In this endorsement, I do not recite either the long history that led to the Decision or the reasons for decision because a ground that was not before Jolley A.J. determines this appeal. Specifically, the appellant has put forward evidence that she tried to, but could not, obtain the information needed to join the virtual hearing. The appellant wrongly says that LawPRO was obliged to provide it – it was not. But I accept the evidence, including a screen shot, that the CaseLines program indicated that the appellant was not authorized to view the case. This was the Sunday before the hearing on Monday morning.
[5] While I agree with LawPRO that the appellant could have, and apparently did not, take steps to draw this to the prompt attention of Jolley A.J., she did promptly raise the issue in this Court when commencing the appeal shortly thereafter.
[6] The only evidence before me supports that denial of access. I have no evidence of any communications to the appellant, in advance, that would address the denial of access to CaseLines and the link for the hearing.
[7] LawPRO accepts that a fair hearing requires that all parties have a reasonable opportunity to participate. However, it invites me to dismiss the appeal despite that fairness issue, relying on R. v. Nahanee, 2022 SCC 37, as followed in cases such as Jones v. Quinn, 2024 ONCA 315. In R. v. Nahanee, a sentencing judge had failed to provide notice and an opportunity for further submissions regarding a harsher sentence than that proposed by the Crown. A majority of the Supreme Court found that the judge had erred in principle but that it was not a breach of procedural fairness unless the appellant showed that the submissions that would have been provided would have had an impact on the sentence.
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