Administrative Law Blog
Knowledge Centre

Landlord and Tenant Board’s decision to order a de novo hearing following the departure of their panel member was procedurally unfair in the circumstances

May 16, 2023

Administrative law – Decisions reviewed – Landlord and Tenant Board – Hearings – Hearing de novo – Judicial review – Procedural requirements and fairness – Remedies

Faruk v. Ontario (Landlord and Tenant Board), [2023] O.J. No. 1617, 2023 ONSC 2191, Ontario Superior Court of Justice, April 13, 2023, M.G. Ellies R.S.J., N.L. Backhouse and T.R. Lederer JJ.

The landlord, Pinedale Properties, brought fifteen applications to the Landlord and Tenant Board (the “Board”) to terminate tenancies in the same residential complex as a result of rent arrears. It was known to the Board that the tenants were represented by the same counsel, and that the evidence and arguments being advanced were common to them all.

The tenants requested a case management hearing to resolve how the matters would be heard. Through this case management hearing, it was made clear to the Board that the tenants intended to negotiate the matter collectively, and that the tenants were concerned that it was their membership in a tenancy association, the Crescent Town Tenants’ Union, that was the actual catalyst for the applications to terminate their tenancies.

Following the case management hearing, the tenants brought a pre-hearing motion to have the eviction applications against them dismissed on the basis of subsections 83(3)(d) of the Residential Tenancies Act, S.O. 2006, c.17, which provides that the Board shall refuse to grant the eviction application where satisfied that “the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association.”

After a comprehensive and careful analysis, the Board determined that the landlord was in breach of subsection 83(3)(d) because those who were members and made payment proposals to the landlords to clear their arrears were treated differently than tenants who made such proposals and were not members of the association. The decisionmaker subsequently requested evidence as to which respondent tenants sent repayment proposals to the landlord, and confirmed that once that evidence had been adduced, the applications to evict those tenants would be dismissed.

Some time later, the parties learned that the member of the Board who had conducted the proceeding was resigning from the Board. Both the landlord and tenants contacted the Board to express their views that a de novo hearing should not be directed. The Board then advised that the application had been scheduled for a de novo hearing, without providing any explanation.

The court considered whether, in setting aside the decision that had been made and requiring a de novo proceeding, the Board denied the tenants procedural fairness. The court held that, through consultation with the parties at a case management hearing, a consolidated process led to the determination of the substantive issue in the application. All that was left to determine was who qualified for the remedy. The court noted that the Board, on its own and without consultation with the parties, decided to start again, possibly with a different process (individual rather than consolidated), raising the prospect of a different and inconsistent finding on the same issue. The court commented that the way the Board had handled the departure of its member had squandered the care taken at the outset of the proceeding by the member, and in doing so had risked the Board’s credibility with those it serves.

The court ultimately granted the application for judicial review, holding that the prior decision on the application of s.83(3)(d) stands. The matter was remitted to the Board to determine which of the parties made repayment proposals for the applications to evict those tenants to be dismissed.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at [email protected].

To stay current with the new case law and emerging legal issues in this area, subscribe here.

Tags

Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: May 16, 2023.

Related

Harper Grey’s New Website Recognized by Hermes Creative Platinum Website Award
Harper Grey’s New Website Recognized by Hermes Creative Platinum Website Award
Erin Hatch appointed Harper Grey’s Chief Diversity Officer
Erin Hatch appointed Harper Grey’s Chief Diversity Officer Erin Hatch appointed Harper Grey’s Chief Diversity Officer
Rose Keith, KC authors Mediation Moment column for Summer 2024 Issue of The Verdict
Rose Keith, KC authors Mediation Moment column for Summer 2024 Issue of The Verdict Rose Keith, KC authors Mediation Moment column for Summer 2024 Issue of The Verdict
Roshni Veerapen explores the critical issue of mental health in her recent BarTalk article
Roshni Veerapen explores the critical issue of mental health in her recent BarTalk article Roshni Veerapen explores the critical issue of mental health in her recent BarTalk article
Rose Keith, KC authors Employment Update Column for Summer 2024 Issue of The Verdict
Rose Keith, KC authors Employment Update Column for Summer 2024 Issue of The Verdict Rose Keith, KC authors Employment Update Column for Summer 2024 Issue of The Verdict
Expanding the Scope of Cost-Recovery Actions under BC’s Environmental Management Act
Expanding the Scope of Cost-Recovery Actions under BC’s Environmental Management Act Expanding the Scope of Cost-Recovery Actions under BC’s Environmental Management Act Expanding the Scope of Cost-Recovery Actions under BC’s Environmental Management Act
Natasha Cooke elected to Insurance Law section of Canadian Bar Association
Natasha Cooke elected to Insurance Law section of Canadian Bar Association Natasha Cooke elected to Insurance Law section of Canadian Bar Association
Harper Grey Supports the 2024 ACEC-BC Awards
Harper Grey Supports the 2024 ACEC-BC Awards
Harper Grey to host Angel Forum x Startup TNT for a Founder Check-In
Harper Grey to host Angel Forum x Startup TNT for a Founder Check-In
Tribunal finds no discrimination where there is a valid business reason for termination
Tribunal finds no discrimination where there is a valid business reason for termination Tribunal finds no discrimination where there is a valid business reason for termination
Harper Grey Hosts 2024 Spring Insurance Law Seminar
Harper Grey Hosts 2024 Spring Insurance Law Seminar
Nick Sulentic to present “Law Firm Finance for Non-Finance Professionals” to BCLMA members
Nick Sulentic to present “Law Firm Finance for Non-Finance Professionals” to BCLMA members Nick Sulentic to present “Law Firm Finance for Non-Finance Professionals” to BCLMA members
Harper Grey welcomes 2024 Temporary Articling (Summer) Students
Harper Grey welcomes 2024 Temporary Articling (Summer) Students
“Dependent” Contractors Entitled to Reasonable Notice of Termination
“Dependent” Contractors Entitled to Reasonable Notice of Termination “Dependent” Contractors Entitled to Reasonable Notice of Termination
Charleen Sibanda attends 2024 Black Business Summit hosted by the Black Entrepreneurs & Businesses of Canada Society (BEBC)
Charleen Sibanda attends 2024 Black Business Summit hosted by the Black Entrepreneurs & Businesses of Canada Society (BEBC) Charleen Sibanda attends 2024 Black Business Summit hosted by the Black Entrepreneurs & Businesses of Canada Society (BEBC)
arrow icon

Subscribe