Request to Review an Order (LTB)

Fava v. Harrison, 2014 ONSC 3352 (CanLII)

[6] The landlords requested a review of Board Member Beckett’s decision. Pursuant to s.184(1) of the Residential Tenancies Act, the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, applies to proceedings before the Board. Section 21.2(1) of the Statutory Powers Procedure Act provides as follows:

21.2(1) A tribunal may, if it considers it advisable and if its rules made under s. 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.

[7] Section 209(1) of the Residential Tenancies Act provides that an order of the Board is final and binding, subject only to s. 21.2 of the Statutory Powers Procedure Act.

[18] In this case, Board Member Beckett made a finding of fact that the notice that one of the landlords wished to occupy the property was not given in good faith. She decided that the credibility of the landlords was undermined because one of the landlords took the position that she wished to live in the house notwithstanding the other landlord’s belief that the unit was unsafe. In our view, the Board was entitled to take this into account in assessing the landlord’s credibility and in assessing the landlord’s good faith. In our view, Board Member Van Delft’s conclusion restricts the meaning of the term “good faith” to an unreasonable degree. By excluding any consideration of the landlord’s motives in deciding whether the landlord has acted in good faith, she has unduly restricted the consideration the Board must give to that term. We see nothing in Salter or Feeney, supra, to the contrary.

[19] It was also unreasonable of Board Member Van Delft to fail to consider the question of whether the landlord’s review application should have been refused by Board Member Beckett because the landlords were in serious breach of their responsibilities under the Act.

Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 (CanLII)

[37] It has been repeatedly held that a failure of natural justice is reviewable on appeal by this court (see Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (Div. Ct.) (“Decosse”); and Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) (“Duncan”)).

[38] I adopt the following summary of the requirement for natural justice from Decosse (at paragraphs 6-8):

A Tribunal is required to comply with the requirements of natural justice. There is no standard of review. On appeals on questions of law, the standard of review to be applied is correctness.

Failure to meet the standards will result in a Tribunal's order being quashed.

Under the Residential Tenancies Act, 2006, S.O. 2006 c. 17, there is a statutory right of appeal on questions of law alone, a factor suggesting a more rigorous standard of review. Further, the Court has wide powers on appeal, and may affirm, rescind, replace, or amend the decision below, remit the matter back with the opinion of the Court, and make any other order that it considers proper. It may substitute its own opinion for that of the Tribunal.

[43] Member Henry on the request for review held that Robert “bore a positive obligation to contact the Board at that time, perhaps by telephone, to advise of his circumstances”. Member Henry made that finding without hearing any evidence as to (i) whether the Brewers had a cell phone, (ii) whether there was a telephone number that existed to reach the local office of the LTB on such short notice in an effective manner to advise that the Brewers could not attend, or (iii) whether cell phone service, or such a telephone number for the LTB, if it existed, was readily available to the Brewers in a parking garage three floors below ground when the Brewers asserted that they had been told by workers in the building that the elevators had shut down.

[50] For the reasons I discuss above, I grant the appeal and remit the matter to the LTB, to a different Member, to hold a review hearing to determine if the Brewers were reasonably unable to attend the hearing, and if so, to conduct the fresh hearing. As a result, the Review Order is set aside, and the LTB at the subsequent review hearing will consider whether the decision in the Guzina Order is to be maintained.