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Leduc v Glen Echo Park Inc.
The appeal case of Leduc v. Glen Echo Park Inc. (Div Ct, 2011) shows that by raising (and only questionably disposing) of an issue that goes to the heart of reviews as a legal proceeding, something that should have been made plain all along - wasn't made plain at all.
The Leduc case was advanced as a Divisional Court s.210 appeal of review proceedings. The LTB proceedings were decided in favour of the tenant, and the landlord requested a 'review' of that decision. It is essential to recognize that a review request initially raises the issue of whether a new hearing should be held, and - if that is decided in the affirmative - then a de novo hearing is held (as new, as though the prior hearing had not been held).
A full review procedure goes in three steps: 1. first the 'request' for the review, and then 2. the granting of the request for a de novo hearing, and 3. the conduct of the new hearing resulting in a new decision. In Leduc the review proceedings had advanced through all of these stages, resulting in a 'win' for the landlord. The tenant appealed to the Divisional Court, and the landlord successfully moved to quash the appeal.
These are the dates:- LTB 'Normal' Decision [tenant wins] ............ 02 October 2009
- Landlord Review Request ............ [no date given]
- LTB Orders De Novo Hearing ............ 11 January 2010
- LTB Issues Review Hearing Decision [LL wins] ............ 05 January 2011
- Tenant Files (this) Div Ct Appeal ............ 04 February 2011
The landlord's motion to quash was granted on the grounds that the appeal was out-of-time, almost a year. The appellant tenant when filing the appeal, took the route that many would think reasonable, they held off on the s.210 statutory appeal until the review procedure was fully spent - implicitly treating the review as part of the main LTB application procedure, and the 30 day timeline as starting to count when the new decision regarding the fate of his client, was issued.
This thinking was made understandable by the fact that, in terms of judicial economy that one only appeals when it matters, and by the fact that the ultimate decision is also an 'order', consistent with the s.210 appeal wording:Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
But what the Divisional Court did was treat the 30-day appeal time as counting from the earlier granting of the review request (to hold a de novo hearing: 11 January 2010), not the resulting 'ultimate' order from this new hearing. As such the appeal was almost a year late. The court reasoned, with respect to the granting of the review request, that:[11] This was a final determination of the earlier proceedings and marks the commencement of a fresh hearing considering the jurisdictional issues raised by the appellants. The result was that the original LTB 'proceeding' ended with the order to hold a de novo hearing [not with the result of that hearing], that was in essence the commencement of a new, ostensibly unrelated new hearing. The court could have, but did not, exercise it's discretion under RTA s.210(5) to extend the appeal time limit [as was done in Fernando v Medallion Corporation (Div Ct, 2010)].
The questions that this gives rise to include:- why didn't the court overlook any technical pleadings and treat the appeal as what it really was, an appeal the 'new' ruling [using it's appeal authority under CJA 134(1): "make any other order or decision that is considered just"];
- with the creation of a new proceeding, what prevents res judicata complications where an appeal is continued in the first proceeding, and a contrary result occurs in the second? (there is no prohibition against both a review and an appeal being conducted within a proceeding);
- the above res judicata concern multiples when appeals and further reviews (further reviews are possible by other parties under Rule 26.18-26.19) in both proceedings, so the permutations multiply.
The practical problem that reviews give rise to, and the first issue that prudent counsel confronts, is whether (after a negative ruling before the LTB in the normal course) to appeal, review or both. The answer still appears to be: both. Barring the other side bringing a stay motion (likely based on abuse of process) to stop the run-away proceedings, this is what will happen.
It reminds me of the situation that occured with employment/human-rights cases post-Bhaduria for decades where employee claimants filed mixed cause-of-action cases (both wrongful dismissal and human-rights) separately before the courts and the human rights system, and employers moved for stays of whichever forum they didn't favour - much to the disservice of relatively impecunious employees.
Politically, it suggests machinations of the 'administrative (or managing) Board' versus the 'presiding Board' [see SPPA Ch.3, s.1: General SPPA Rules: Tribunals]. It seems plain in terms of natural human dynamics that reviews (or reconsiderations) are a tool of the 'administrative Board', for who else would feel the entitlement to override the result of a hearing, that archetypal common law institution, than a Board's administration. But I have no evidence of that. For all I know they could be randomly assigned to all Board members when the need arose.
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