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Fairness - Transcript Availability. Richmond v. Rodriguez [absence of transcript]
In Richmond v. Rodriguez (Ont Divisional Ct, 2025) the Divisional Court quashed a S.210 RTA appeal, here where the LTB could not produce a transcript and the tenant argued breaches of fairness:Does procedural fairness require a new hearing because of the absence of a transcript?
[9] There is no statutory or common law requirement for a tribunal to produce a recording of its proceedings capable of generating a full transcript. However, if there is no transcript, and proper appellate review is compromised, this can be the basis for the reviewing court to order a new hearing: Billion v. Vaillancourt, 2016 ONSC 5820 (Div Ct.) at para. 7. It is unfortunate that no recording was available in this case.
[10] That said, I have concluded the ability of the court to review the decision is not undermined. There is an adequate record of what occurred before the Board to permit appellate review. Both parties submitted affidavits sworn by the representatives who attended the hearing detailing how the hearing unfolded. While there are some differences in perspective, the affidavits are largely consistent in setting out what occurred.
[11] For example, with respect to the allegation that the Board member improperly limited questioning, the affiants agree that the Board member interrupted and limited questioning by the tenant’s representative because of concerns about relevance. They also agree the hearing lasted approximately two hours, with most of the time spent on the tenant’s representative’s questioning. In the Board’s order, the Board member stated: “I allowed the Tenant’s Legal Representative a lot of time to present evidence that refuted the Landlord’s…” (emphasis added). It was overall agreed that the Board allowed the tenant extensive time for questioning but also interrupted her representative multiple times because of concerns about relevance.
[12] Similarly, there was no dispute that the Board ended the hearing without expressly asking the tenant’s representative if he intended to cross-examine the landlord’s mother and without specifically seeking to elicit evidence that might be relevant to considerations under s. 83(2) of the RTA, other than to ask how long the tenant would need to find new housing. The tenant characterized the Board as having ended the hearing “abruptly.” The landlord characterized Board as having ended the hearing after giving the tenant’s representative ample time to present his case. In short, there was little dispute about what occurred, although the parties characterized it differently. In these circumstances, the court is in an adequate position to conduct appellate review.
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