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Human Rights System Gate-Keeping. Gardener v. Abell Pest Control Inc.
In Gardener v. Abell Pest Control Inc. (Div Court, 2023) the Divisional Court considered (and allowed) a JR of an HRTO decision dismissing an application as late. From my experience and study these underlying procedural facts are an all-to common and unfair reaction from the Ontario human rights system to applicants:[2] There is no dispute that Ms. Gardener attended at the Tribunal Office to submit her application at approximately 4 PM on August 29, 2019, the last day for filing her complaint under s. 34 of the Human Rights Code. She had with her an electronic copy of the application form on a USB device. With the assistance of a Tribunal staff member she was able to print a copy of her application but, due to computer issues, it took time to print, until 5:20 PM. However, the staff member then refused to accept or date-stamp the printed form as it was after 5 PM.
[3] After speaking to the Tribunal by telephone in attempts to resolve the issue, on September 5, 2019 the Tribunal accepted Ms. Gardener’s application after she attended the Tribunal Office on that date. Ms. Gardener stated that she was unable to attend earlier due to a family emergency.
[4] In our view, the Tribunal’s decision that the filing was out of time is unreasonable. The Tribunal did not put any weight on Ms. Gardener’s actions attempting to file the application on August 29, 2019. Instead, the Tribunal considered whether Ms. Gardener had good faith reasons for delaying until the last day and examined her explanation for the seven days that followed until September 5, 2019, which led it to conclude that the time for filing should not be extended. These issues would have been irrelevant if the application had been accepted for filing by the Tribunal staff, or the Tribunal had simply exercised its discretion to extend the time given the clear intention, and efforts, to file the application on time, but the Tribunal gave those facts no consideration beyond stating them.
[5] In our view, this application was filed on time, and in the alternative the Tribunal could, and should, have simply exercised its discretion under its own Rules of Procedure, consistent with other Tribunal decisions, to extend the time past 5 PM to permit the application to be filed within the statutory limitation period: see, e.g. Brown v. Bellissimo Pizzaria and Restorante, 2014 HRTO 1403, at paras. 13-14; Jones v. Book, 2018 HRTO 1560, at paras. 28-31. Instead, the Tribunal ignored Ms. Gardener’s efforts on August 29, 2019 and unreasonably found that it was out of time, and despite Ms. Gardener’s evidence of her personal circumstances over the preceding year, and of what she had done between August 29 and September 5, 2019, that Ms. Gardener had not made a “good faith” effort to file the application in time.
[6] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 6, the Supreme Court of Canada stated at para. 135:Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. [7] Those words are apt here. The Tribunal’s reasons, including its reconsideration, did not reflect the heightened responsibility on it to appropriately address the circumstances – a printing misadventure that caused the application to be ready to be filed at 20 minutes after 5 PM - or the consequence of its decision which denied Ms. Gardener the ability to pursue her human rights complaint.
Honest Elderly Tenant Tries Again to Work Through the Maze of Our Courts. Potomski v. The Landlord and Tenant Board et al.
In Potomski v. The Landlord and Tenant Board et al. (Div Court, 2022) the Divisional Court considered a non-compliant, but timely, motion for a stay (in part) within a judicial review of an LTB decision (Note: most LTB review activity is by RTA 210 which is by appeal, not judicial review - but there has been much activity lately about using judicial reviews for other than questions of law). The applicant was an unrepresented senior and was obviously trying to abide by the complex procedures of the court but, in the court's view got his procedures wrong [if he appealed he would be temporarily granted the auto-stay under SPPA 25(1)]. The court sent him back to follow then-recently-changed (post-COVID) April 2022 practice directives which add further complexity to an already complex process. Notably, the underlying issue that the applicant lost on before the LTB appeared to be the minor one of whether the applicant/tenant could pay his rent by email transfer as insisted by him, as opposed to cheque or money order as insisted by the landlord.
The case suggests a situation of the court system creating yet further additional barriers to a sincere but unrepresented senior applicant who had throughout the intention to pay rent and to 'be heard' by the court. That such a litigant found themselves further stymied by procedure in a clear case of the triumph of form over substance, gives rise to serious questions about whether justice can be done for unrepresented vulnerable parties in our highly complex and information-atomized court system. A colleague of mine recently described our organization of law as 'obscurantism', and that seems fair to describe the root problem here, despite good judicial intentions.
LTB Awards Paltry General Damages for Illegal Lock-out. Beseiso v. Presendieu
In Beseiso v. Presendieu (Div Court, 2022) the Divisional Court considered the amount of general damages awarded by the LTB for illegal lock-out. The case (and cases cited) are noteable for the low quantum awarded ($5,000 ordered in this case, but $2,500 deemed average) - amounts that some landlords may view as an acceptable 'cost of business' in getting rid of an unwanted tenant. It's hard to imagine these low volumes being awarded in a Superior Court lawsuit, which it is entirely possible to bring in similar future cases [under the RTA 207(2)] [paras 6-11].
Administrative Law Is Second-Class Law
In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual (ZOOM) eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but by excluding the separate tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting a tenant to cross-examine on direct examination that they had been excluded from hearing [para 32]. The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals.
As the court recognized in the presently desperately harsh rental market in Canada today:The right to be heard is particularly important in the context of the Landlord and Tenant Board because housing decisions can have a profound impact on all aspects of an individual’s life. Most tenants don't have the knowledge or resources to commence a s.210 Divisional Court appeal, these were among the lucky few that did (one tenant was represented, the other not). How many others have 'fallen through the legal cracks'? Meanwhile, corporations suing other corporations for their millions get the full natural justice procedural rights that our legal system can avail itself of at public expense in the traditional courts. What's wrong with this picture?
Disturbing Divisional Court Tenancy Case
This is a disturbing case from the courts on 13 April 2022. By all appearances the self-repped appellant was unfamiliar with the practice from the Browne v Dunne rule (UK, 1893) that you first have to 'put' your intended contradictions to a witness before you can call evidence to impeach them - that's why she couldn't have her evidence admitted. Instead the crucially important issue of whether her rental was governed by the RTA or not went against her (again), leaving her with the close-to-zero rights of a licensee or 'unauthorized occupant': Guillaume v. Barney Rivers Investments Ltd. (Div Ct, 2022).
Judge Gets Caustic About Excess Legislation[36] In Canada (National Revenue) v. McNally, 2015 FCA 248 at paragraph 5, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the Court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.” [SS: it's Stratas JA (who else?), quoted by McWatt A.C.J.S.C.J.] Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board (Div Ct, 2022)
Self-Representer Considering Appeal? Read this.
. Narwhal International Limited v. Teda International Realty Inc.
In Narwhal International Limited v. Teda International Realty Inc. (Ont CA, 2021) the Court of Appeal usefully summarizes the limitations of an appeal that are often misunderstood by self-representers:[14] Unfortunately, the appellant misunderstands the function of an appellate court. It is not this Court’s responsibility to conduct a second trial. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. A palpable and overriding error is an “obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo v. MacLaren Art Centre, 2014 ONCA 526, [2014] O.J. No. 3242, at para. 39. It has also been said that:A palpable error is one which is clear to the mind or plain to see, so obvious that it could be easily seen or known or readily or plainly seen. An overriding error is one which had a sufficiently decisive effect, such that it would justify intervention and review on appeal: 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1.
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