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Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 15 - Reviews and Court Appeals
(01 September 2020)Note: Since this chapter was last updated on 01 September 2020, the LTB Specific Rules were revised on 01 December 2020. - Overview
- Reviews
(a) Overview
(b) Source Law
. Overview
. SPPA
. RTA
. Board Rules
(c) WHAT Can be Reviewed?
(d) WHEN: Limitations
(e) WHY: Grounds of Review
(f) WHO: Standing
(g) HOW: Procedures for a Review
- Court Appeals
(a) Overview
(b) WHAT can be Appealed?
(c) WHEN: Limitations
(d) WHY: Grounds of Appeal
(e) WHO: Standing
(f) HOW: Appeal Procedures
(g) Appeal to Court of Appeal
- When To Choose a Review, an Appeal - or Both?
- Judicial Reviews
- Reasons, Board File and Record of Proceedings
(a) Request Board Reasons
(b) Board File and Transcript
Note: Re Amending Orders
The review procedures discussed in this chapter are distinct from those available to modify Orders to correct minor and uncontentious clerical or arithmetic errors. For those "amendment" procedures, see Ch.14, s.6(f): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Amending Orders".
1. Overview
After receiving an unsatisfactory Notice of Decision, a party's mind may immediately turn to thoughts of an 'appeal'. While a court appeal is available in some circumstances, the RTA - like most modern administrative tribunal procedural regimes these days - also has a "review" procedure which normally should be considered and explored fully along with any consideration of court appeal proceedings.
But readers are cautioned that the court appeal deadline is not delayed for the time that it takes to resolve a review. Subject to a 'stay' (which only bars enforcement) [see Ch.14: "Hearings, Orders and Enforcement", s.7 "Enforcement and Stays of Enforcement"], an LTB Notice of Decision is considered "final and binding" for further appeal purposes as well as for further review purposes [Act s.209(1)].
Unfortunately - from the point of view of procedural certainty - the choice of whether to review or appeal (or to do both at the same time), is commonly not clear. Parties may find themselves in the situation of having to both review and appeal the Board's ruling in order to fully protect their rights [this contrasts unfavourably with the similar situation before the Social Benefits Tribunal where the running of time for the court appeal deadline is delayed until any "reconsideration" (the equivalent of a review) is resolved].
Making these sometimes complex choices properly requires a comparison of the two procedures in light of five issues (each of which is discussed in turn in s.2: "Reviews" and s.3: "Appeals", below). These issues [which roughly correspond to the questions: what, when, why, who and how] include:- WHAT Can I Review/Appeal? (Reasons, Decisions or Orders)
This issue follows on from the discussion of the difference between 'orders, decisions and reasons' [see s.14: "Hearings, Orders and Enforcement", s.6 "Decisions, Reasons and Orders"]. It has been clarified recently with the new Rules issued at January 2019, so that the focus is on the 'order' or 'orders' issued for both reviews and appeals.
- WHEN Can I Review/Appeal? (Limitation periods)
Be careful with these. For reviews, review must be requested "within 30 days of the order being issued" [R26.4], yet for appeals the time runs from "within 30 days after being given the order" [RTA 210(1)]. 'Being given' the order allows for service delay, which can be crucial.
- WHY is the Original Order Wrong? (Grounds)
The choice between a review and an appeal may turn on the grounds on which a party alleges the Board made an error.
These can include errors of procedural justice, jurisdiction, fact-finding, law, and findings of "mixed law and fact". With recent case law from the Supreme Court of Canada [Vavilov], and the statutory restriction that appeals are only available on "question(s) of law" [RTA 210(1)], the issue can get complicated. The issue can be furthered complicated when the possibility of judicial review (non-appeal, but still high court proceedings) arises.
- WHO Can Review/Appeal? (Standing)
Usually - but not always - the right to review or appeal is restricted to parties to the original application.
- HOW do I Review/Appeal?
This involves the procedural aspects of the processes.
As already stated above - the two procedures of review and appeal do not have a happy co-existence under the RTA regime. A party wishing to challenge a Board Decision is faced with an uncertain choice between review or appeal, or even the necessity to proceed with both simultaneously to ensure that their rights are fully preserved.
Also of concern in any situation where a review, appeal or similar procedure is being contemplated is the issue of "staying" (suspending) the original Order while the Review is being resolved [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement: Stays"]. Without the issuance (and filing with the sheriff's office by the party, most often the tenant) of a 'stay' then the original Order is still enforceable.
2. Reviews
(a) Overview
Reviews are essentially a 'same-level' appeal, that is the LTB conducting a review of an order that the LTB made before in a regular hearing [R26.1].
Sometimes called 'reconsiderations', reviews are relatively new in Ontario law. In their short history they have an odd 'grafted' existence in administrative law, with no thought-through legislative integration into the normal hearing stream - or with the statutory appeal system at all.
(b) Source Law
. Overview
Several sources of law must be considered when exploring the Board's review jurisdiction, including: the SPPA, the RTA, and the Board's Rules.
. Statutory Powers Procedures Act (SPPA)
The primary source of the Board's review jurisdiction is the SPPA, which provides that the Board may, "if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order" [SPPA s.21.2(1)]. The SPPA requires that reviews must "take place within a reasonable time after the decision or order is made" [SPPA s.21.2(2)].
Further, "(i)n the event of a conflict between this section and any other Act, the other Act prevails" - that is, any conflicting RTA provisions are paramount over the SPPA provisions [SPPA s.21.2(3)].
In short, under the Statutory Powers Procedure Act tribunals can gain jurisdiction to hold review (aka reconsideration) hearings, simply by making rules to that effect [see my SPPA Legal Guide: Ch.17 - Tribunal Rule-Making Authority: Review of Orders]. In the case of the LTB this has been done, with additional recognition in it's parent statute [RTA s.209(2)].
. Residential Tenancies Act
The RTA only slightly supplements this SPPA authority by adding a specific ground justifying review: "the Board's power to review a decision or order under that section [SPPA s.21.2] may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding" [Act s.209(2)]. This ground supplements any other grounds for review that may be set out in the Board Rules.
So basically, if you miss your hearing with good reason, you can (also) argue that fact on a review to seek a new hearing.
. Board Rules
The Board has exercised their SPPA authority in creating Rule 26, linked here:
Rule 26: Reviews
Rule 26 sets out the bulk of the law that applies to Reviews, and it's 20 or so sections are considered below.Note:
The LTB itself has jurisdiction to resolve the major problem of RTA appellate practice by making a Rule that no LTB order is "final" until it's review procedures are either resolved or their time limit for initiation is spent. This would prevent aggrieved parties from facing the 'review v. appeal' (or both) conundrum when receiving a negative decision. The LTB has authority to establish when an order is final (and thus subject of appeal) in the RTA itself:RTA 209(1)
Except where this Act provides otherwise, and subject to section 21.2 of the Statutory Powers Procedure Act, [SS: which authorizes the Board to make rules governing Reviews], an order of the Board is final and binding. (c) WHAT Can be Reviewed?
. Review of Orders
The above-quoted provision [RTA 209(2)] implies that that 'orders', "which makes a final determination of the party's rights" may be reviewed by parties [R26.1].
Note:
Note that the SPPA [quoted in (a) above] authorizes a tribunal to review its own "decision or order" [SPPA s.21.2(1)], which the previous pre-January 2019 Rules [R29.1] took it up on, by allowing the LTB to review both "orders or any decision". See the discussion in Ch.14 "Hearings, Orders and Enforcement", s.6: "Decisions, Reasons and Final Orders"]. The present Rules do not cover the review of 'decisions', by either the LTB or parties. Review, either of orders or decisions, is consistent with conventional civil litigation doctrine that a party 'cannot appeal reasons'.
. 'Final Determination'
Whether something is a 'final determination' (also final order), as opposed to interlocutory or 'interim' order, is a much-vexed doctrine in civil litigation, where it triggers appeal routes. A fair sample of the established law is quoted here in Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc. (Ont CA, 2020) where the Court of Appeal, considered the distinction between a final and an interlocutory order as it conditioned the appeal route (Court of Appeal if final, Divisional Court if interlocutory). The case refers to several other cases on the issue (not quoted here):[16] An interlocutory order is one which does not determine the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided: Hendrickson v. KalIio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678; Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). Rule 26.1 embodies this 'final versus interlocutory' issue with this addition: "(f)or these purposes an interim order may contain a final determination of rights." The primary issue with this doctrine is that sometimes an order which is procedural (interlocutory) in nature has the effect of terminating a party's rights (finality). A sample of this problem arising would be an (otherwise preliminary) evidentiary ruling which has the practical effect to terminating a party's case: ie. is it a 'final order' which can be reviewed? or something else?
(d) WHEN: Limitations
Further, while normally any review (or appeal) deadline will commence from when the Notice of Decision is served on the party, this is not the case under Rule 26.4 which states that the review deadline is "30 days of the order being issued" [author's emphasis].
While a Board Order is "final and binding" [Act s.209(1)] when made, if it is subject of an clerical error [as per Ch.14: "Decisions, Reasons and Final Orders", s.6(f) "Amending Orders"] the review deadline only starts to count from the date of the amended Order being issued [R26.5].
However, if the requestor misses a deadline they may still request the review, but they "must also file a request for an extension of time and give reasons explaining the delay" [R26.6]. See Ch.13: "General Board Procedures", s.9(f) "Calculation of Time: Where Board May Extend and Shorten Time".
(e) WHY: Grounds of Review
The Rules, which set out the contents required for a request to review, implicitly set out the grounds for a review as: "an alleged serious error" [R26.8].
"Serious error" is a very broad and vague ground of review, and it would appear that any 'serious error' (including one of 'law') may qualify. The Board has also created Interpretation Guideline 8 (linked below), which sets out in some detail the Board's view as to what constitutes "serious error" - they appear to be correspondingly broad.
The upshot of these provisions is apparently that any ruling of substance may be taken to review. This conclusion does much to muddy the procedural waters for parties facing an adverse ruling as it drives them further towards pursuing both Review and Appeal remedies simultaneously, in order to ensure that limitation deadlines are not missed.
Interpretation Guideline 8: Review of an Order
As reflected in R26.8 ["an explanation why the requestor was not reasonably able to participate in the hearing""], the RTA sets out another specific procedural ground justifying review: "the Board's power to review a decision or order under that section may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding" [Act s.209(2)].
(f) WHO: Standing
The RTA definition of 'parties' to an application is broad [RTA 187(1,2)], and R26 (which deals with reviews) mirrors this:187(1)
The parties to an application are the landlord, or the non-profit housing co-operative, and any tenants, or members of the non-profit housing co-operative, or other persons directly affected by the application.
(2) The Board may add or remove parties as the Board considers appropriate. That said, R26.2 includes as a party "the person requesting the review" (if they are not a party to the order), but in that case the requestor must "explain the requestor's interest in the order" [R26.8].
The LTB itself "may review an order on its own initiative where it considers appropriate" [R26.3].
(g) HOW: Procedures for a Review
. By Parties
Requests for reviews should be in writing on the Board-approved form, "signed by the requestor or the requestor's representative" and, be accompanied by the required fee [Act s.181,182; R 26.7] (which may be refunded if successful)]:
Request to Review an Order
Landlord and Tenant Board Fees
They should - minimally - include the following information [R26.8]:- the Board order number;
- the rent unit address;
- the name, address and telephone number of the requester;
- if the requestor is not a party to the order, explain the requestor's interest in the order;
- "sufficient information to support a preliminary finding of an alleged serious error or an explanation why the requestor was not reasonably able to participate in the hearing;"
- an explanation of how the order should be changed;
- if seeking to stay the order, an explanation why a stay is necessary and any prejudice or harm may result if a stay is not ordered;
- information about any appeal of the order; and
- where there is an appeal of the order, the requestor's position on whether the LTB should lift the stay resulting from the appeal.
. By the LTB
"The LTB may review an order on its own initiative where it considers appropriate and will issue directions to the parties with respect to the conduct of the review" [R26.3].
. Preliminary Review of Request
The procedure on a review is for a Board member to first conduct a "preliminary review" for merit on the face of the request (ie. whether a "serious error" may have occurred in the proceedings). In doing so the Board member may exercise its discretion to [R26.9]:- dismiss the request because it was not filed in time;
- extend the time for making the request;
- dismiss the request; or
- direct a review hearing of some or all of the issues raised in the request and, where appropriate, make any interim orders.
. Review Hearing
"The review hearing may be conducted in person, in writing, by telephone or other electronic means, as the LTB considers appropriate" [R26.12]. "Any Member, including the Member whose order is the subject of the request to review, may be assigned to conduct the review hearing" [R26.13].
"If the request to review is dismissed the LTB will lift any stay and confirm the order under review" [R26.14].
"If the request to review is granted the reviewing Member will identify the issues to be re-heard. The Member may include issues not identified in the request but which the Member finds may amount to a serious error in the order" [R26.15]. "Unless otherwise directed, the re-hearing will begin immediately after the request to review is granted. Parties must be prepared to proceed with re-hearing." [R26.16].
"Following the re-hearing the LTB may confirm, vary, suspend or cancel the order, and lift any stay if necessary" [R26.17].
. Withdrawing a Request to Review
"If the LTB has made an interim order following the preliminary review or has begun hearing the request to review, the requestor must obtain the LTB's consent to withdraw the review request" [R26.20], otherwise not.
. Further Requests for Review
"The LTB will not consider a further request to review the same order or to review the review order from the same requesting party" [R26.18]. "A party or directly affected person may request a review of the same order on different grounds provided the requestor's interests in the proceeding are different from those of the first requestor" [R26.19].
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