Landlord Tenant Board Order has Serious Error: Appeal, Review or Re-file?
The Landlord and Tenant Board (LTB) has a procedure by which any Order from a Hearing can be appealed. Before an appeal to the upper court will be heard, the person has an obligation to exhaust all other remedies that the tribunal provides.
The Landlord Tenant Board provides such a remedy. Any person who is directly affected by a final order in an Application may request the LTB review its own decision if the order contains a serious error, or a party was not reasonably able to participate in the proceeding.
A request for review must be made within 30 days of the date of the order or amended order. A request to review an order must be, in writing signed by the requestor or the requestor's representative, and accompanied by the required fee. Pursuant to Rule 26.8 e of the Board’s Rules of Practice, a request for review must contain sufficient information to support a preliminary finding of an alleged serious error. A request to review an order must provide:
1. the order number;
2. the address of the rental unit or member unit; the requestor's name, address and telephone number;
3. 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;
4. an explanation of how the order should be changed; if seeking to stay the order, an explanation why a stay is necessary
5. and any prejudice or harm may result if a stay is not ordered; information about any appeal of the order;
6. 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
A Request for Review of an Order is undertaken in two stages. A preliminary review is done to determine if the all the procedural requirements as outlined above have been met. If the request does not provide enough detail, is not cogent in its argument or it does not meet the other tests for review the request can be dismissed without a hearing. If the request is dismissed at this stage the LTB will issue an order but is not required to provide reasons for its decision.
The LTB can make a decision to amend the Order directly and is likely to do so if the Order suffers from an obvious and blatant mistake such as a transcription or mathematical calculation error. If the request is not dismissed the LTB will issue a notice of hearing to all parties.
The Review Hearing is often set to be heard on the next Hearing day at the hearing location with the decision to be made by the Tribunal Chairman sitting at that time. If the Request to Review is successful, a hearing on the substantive issues will be held, probably immediately following the Review Hearing.
From LTB Guideline # 8 a serious error includes:
1. An error of jurisdiction. For example, the order relies on the wrong section of the RTA or exceeds the LTB's powers. This issue need not have been raised in the original hearing;
2. A procedural error which raises issues of natural justice;
3. An unreasonable finding of fact on a material issue which would potentially change the result of the order;
4. New evidence which was unavailable at the time of the hearing and which is potentially determinative of one or more central issues in dispute;
5. An error in law. The LTB will not exercise its discretion to review an order interpreting the RTA unless the interpretation conflicts with a binding decision of the Courts or is clearly wrong and unreasonable; and ,
6. An unreasonable exercise of discretion which results in an order outside the usual range of remedies or results and where there are no reasons explaining the result.
If the Request to Review is dismissed the decision can then be appealed to the Divisional Court. s.210 (1) 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. 2006, c. 17, s. 210 (1).
In North Avenue Road Corporation v. Travares, 2015 ONSC 6986 the court affirms s.210 of the RTA, and considered the factors relevant in determining whether the decision in issue is reasonable. These factors relate to the “justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision fall within a range of possible, acceptable outcomes, given the facts and the law”.
A party is allowed to represent themselves at any stage of a proceeding but with the specialized procedure at the Divisional Court it is extremely recommended that any party engage competent legal counsel. At present, while paralegals are specialized in landlord and tenant law, only lawyers are allowed to practice in Divisional Court.