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

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].

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