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Fairness - Notice. Equity Builders Ltd. et al. v. Landlord and Tenant Board et al.
In Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. (Ont Divisional Ct, 2025) the Divisional Court (mostly) dismissed a multiple-proceeding combination of both LL-initiated JRs and RTA s.210 appeals, here respecting multiple units in a Sarnia apartment building. After a fire "the Chief Building Official for the City of Sarnia issued an order to the Landlord directing that the premises be vacated", followed by a second order several days later restricting access to a lesser number of units. The LL subsequently refused re-entry to tenants not covered by the later less restrictive order, eventually resulting in RTA orders of illegal lock-out for numerous units - and that "the Landlords had substantially interfered with the reasonable enjoyment by the Tenants of their units; and found that the Landlords obstructed, coerced, threatened or interfered with the Tenants".
Here the court finds that a individual party should have received notice before they were held to be a landlord, which entailed jointly and several liability with a corporation:Did the Board deny Mr. Singh procedural fairness by finding him to be a landlord without notice?
[68] The Landlords argue that it was procedurally unfair for the Board to find that Mr. Singh is “landlord” as defined in the RTA and therefore personally liable for the monetary awards without giving Mr. Singh notice it was considering so and receiving submission on the issue. We agree.
[69] The term “landlord” is defined in the RTA to include the owner of a rental unit as well as any person who “permits occupancy of a rental unit” or any person who is “entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord.”
[70] Mr. Singh was not named by the Board as a landlord in the first or second interim orders (dated March May 8, 2023, and March 11, 2024, respectively). He was only named as a landlord in the unit specific orders. In those orders, the Board incorrectly stated that the tenants had sought an order against Mr. Singh. In fact, none of the tenants named Mr. Singh as the landlord in their application. They each named Equity Builders or EQB as the landlord.[1]
[71] The Board did not give reasons for naming Mr. Singh as a landlord.
[72] The Tenants argue there was ample evidence to support the finding that Mr. Singh is a landlord as defined in the RTA. The Tenants argue there was nothing unfair about the Board naming Mr. Singh as a landlord because he referred to himself as the landlord throughout his testimony and he testified that he was responsible for many of the decisions about whether the tenants would be permitted back into their units, which was the central issue in the hearings. Finally, the Tenants argues that Mr. Singh was effectively on notice that he may be named as a landlord because the Board raised the issue during the hearings.
[73] Ms. Singh was entitled to a fair hearing before the Board. What is required for a fair hearing is flexible, variable and context specific. When deciding whether the proceedings below were procedurally fair, we must consider the nature of the decision being made and the process followed in making it, the nature of the statutory scheme, the importance of the decision to Mr. Singh, and the choice of procedure selected by the administrative tribunal: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
[74] In terms of the nature and importance of this issue, the Board’s decision to name Mr. Singh as a “landlord” has very serious implications for him. Because of that decision, he is jointly and severally liable for all the damages awarded to the individual tenants. However, he is not personally liable for the administrative fines which total $525,000.
[75] Turning then to the procedure the Board followed in relation to this issue. The Board expressly raised the question of who ought to be named as the landlord during the hearings. At the start of the third day of the hearing, on September 29, 2023, the Board noted that the tenants had named different people and entities as the landlord(s) in their applications and the Board had named different people and entitles as the landlord(s) in the Notices of Hearing. The Board asked the parties to try to reach an agreement on that issue. The Board then said that if the parties could not reach an agreement, “we would probably have to go through on a case-by-case basis to determine who [is] to be listed or not listed.”
[76] The parties never told the Board that they had reached an agreement on who should be named as the landlord(s) and none of the tenants sought to amend their application to name Mr. Singh as a landlord.
[77] In the written closing submission filed on behalf of the 14 tenants, the tenants referred to Mr. Singh as the property manager or a director of Equity Builders. In one paragraph, when describing Mr. Singh’s evidence, the tenants referred to Mr. Singh as “the landlord.” But the tenants did not make any submissions about who should be named as the landlord(s) or why Mr. Singh should be named as a landlord.
[78] The Landlord’s closing submissions only name Equity Builders Ltd. as the landlord. The Landlord’s closing submissions also contain no submissions on whether any other person or entity should be named as a landlord.
[79] The Board did not seek further submissions on the issue it raised on September 29, 2023.
[80] There is no doubt that the Board had the authority to name Mr. Singh as a landlord. The Board can add or remove a party “as it considers appropriate”: Landlord and Tenant Board Rules of Procedure, r. 1.6(b), RTA, s. 187(2). The Board is also expressly entitled to disregard "the separate corporate existence of participants” when making its findings: RTA, s. 202(1). The question, though, is not whether the Board had jurisdiction to name Mr. Singh as a landlord in addition to naming Equity Builder’s Inc. The question is also not whether there was evidence to support the Tribunal’s finding that Mr. Singh is a landlord. The question for us is whether it was procedurally fair for the Board to have done so in this case.
[81] We find that it was procedurally unfair for the Board to name Mr. Singh as a landlord in the absence of an express request by the tenants to do so without giving Mr. Singh notice of its intention to name him as a landlord and without giving him an opportunity to make submissions on that issue.
[82] The appropriate remedy for this breach of the duty of procedural fairness is to remit the matter back to the Board for a new hearing only on the narrow issue of whether Mr. Singh should be named as a landlord in the orders. . Walma v. Georgian Bluffs (Township)
In Walma v. Georgian Bluffs (Township) (Ont CA, 2023) the Court of Appeal allowed a 'fairness' appeal by the Crown where - although the Crown was added as a party on consent - the Notice of Application was not amended to claim any remedies against the Crown, here where the issue was responsibility over a landowner's access road (ie. whether the road was a 'public road' or not):THE CROWN’S APPEAL
[14] ... We accept the Crown’s submission that the process followed in this case was procedurally unfair.
[15] No orders were sought against the Ministry in the respondent’s notice of application, which was commenced solely against the Township. The Ministry was added as a party on consent on a motion by the Township, but there was no notice of application or pleading from the Township seeking relief against the Ministry.
[16] In these circumstances, the Ministry did not know the case it had to meet. The orders made against the Ministry are outside the boundaries of the application, the relief sought, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[17] The Crown’s appeal must be allowed. . Hodge v. Registrar Real Estate and Business Brokers Act
In Hodge v. Registrar Real Estate and Business Brokers Act (Div Court, 2022) the Divisional Court considered the adequacy of notice in a disciplinary context, here in a Real Estate and Business Brokers Act, 2002 LAT 'Notice of Proposal' disciplinary appeal:[17] A person who will be affected by a decision of decisionmaker is entitled to notice of the case to be met. This is fundamental fairness. Procedural fairness exists to “ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker”: BCM International Canada Inc. v. Canada (Employment, Workforce Development and Labour), 2021 FC 687 (CanLII) at para. 22; Baker at paras. 22-28.
[18] In follow-up written submissions, the Registrar conceded that the Appellant did not receive notice that the workplace misconduct allegations would form part of the case against him. The Registrar also concedes that no amendment to the Notice was provided, nor did the LAT consider any means by which to mitigate any prejudice to the Appellant arising from the lack of notice to him that it would consider and rely on the workplace conduct evidence.
....
[23] The Registrar submits that this evidence was not referred to in the portion of the LAT reasons discussing penalty, and thus despite the lack of procedural fairness, this made no difference to the outcome and is not a reviewable error. In such cases, it is open to the court on review to dismiss an appeal: See Al-Kazely v. v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (Div. Ct.), at paragraph 48; Dr. Rajiv Maini v. HPARB et al., 2022 ONSC 3326 (CanLII), at para. 30.
[24] The penalty portion of the reasons do not refer to the weight or impact of the workplace misconduct on the decision to suspend the Appellant’s registration for three months. However, the reasons for penalty did not remove these aggravating facts from the penalty calculation. This was not minor misconduct: the LAT characterized it as having weighed in the decision. It is objectively serious conduct. In all the circumstances, I cannot rule out that the LAT did not consider the workplace conduct evidence in assessing the appropriate penalty which it imposed on the Appellant.
[25] On this basis alone, I would quash the appeal and remit the matter to the LAT for a new hearing. On the question of whether the LAT decision to suspend the Appellant’s registration for three months, that question cannot be adequately assessed without knowing the role the workplace misconduct played in the penalty. That will fall to be determined after a procedurally fair hearing into the allegations for which the Appellant had notice.
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