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DISCRETIONARY POWER OF DECISION

When you appear before the Landlord Tenant Board (LTB), you are asking the board to exercise its statutory discretionary power of decision under the Residential Tenancies Act (the Act).

NATURAL JUSTICE

Natural justice does not relate to what the LTB decides, but how the LTB exercises its decisions. The procedural rules and principles that the LTB must follow, including the giving of adequate notice of hearings and ensuring that matters are fully and fairly heard, are known as natural justice. Natural Justice requires Members to adjudicate independently and to make their own decisions, and for those decisions to be based on the intent and purpose of the Act.

PROCEDURAL FAIRNESS

Hearings are subject to the natural justice principle of procedural fairness. This means that landlords and tenants have the right to be heard and the right to an unbiased decision-maker.  You have the right to be present at your hearing; the right to be represented (if you choose); the right to present evidence; the right to cross-examine the opposing party and make closing submissions; the right to have the Member who hears the matter be the one to make the decision; the right for that decision to be based on the evidence; and, the right to be given reasons for the decision. All together, these constitute your right to be heard.

Any Member who, for example, expresses negative opinions about a matter or a party displays bias, and there is a reasonable apprehension of bias when a Member is, for example, friends with or related to a party.  You have the right to an unbiased decision-maker. Examples of procedural fairness in action that you may experience or observe in hearings include, but are not limited to, adjournment requests being granted because a party is not reasonably able to participate in the proceeding or did not receive adequate notice of the hearing.

PROCEDURAL FAIRNESS AND THE SUPREME COURT OF CANADA

The duty of procedural fairness is owed when the administrative decision affects the rights, privileges, or interests of an individual. Baker and Vavilov are Supreme Court of Canada (SCC) decisions which inform our comprehension of the foundation, duty, and application of procedural fairness.^[1] Upon reading, we learn that one factor “determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected.  The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated”^[2]. Neither Baker nor Vavilov were related to landlord tenant matters or subject to the RTA, but both are fundamentally important caselaw regardless of which level of court is hearing and making decisions regarding a landlord tenant dispute.

REVIEW AND APPEAL

If you have been denied any aspect of procedural fairness, you have the right to request a review of the decision and request that your matter to be heard afresh (de novo) by anther Member. If a de novo hearing is granted, the Member who hears your matter may arrive at the same decision or a different decision to that of the presiding Member. Of importance is that the Board provides an opportunity for the decision to be made while affording you procedural fairness. The RTA also allows for the right to appeal to the Divisional Court, but only on questions of law, and only after exhausting the LTB’s power to review its own decisions.

NOTICES OF TERMINATION

If a matter is dismissed without a hearing because a Notice of Termination contained an error pursuant to section 43 of the Act e.g. incorrect name of the tenant or incomplete address of the rental unit, you have not been denied procedural fairness. Tenancies must only be terminated in accordance with the Act (section 37), and any Member ordering the termination of tenancy based on a Notice of Termination that is not compliant with section 43 would be exceeding their jurisdiction (authority), and this would be grounds for a review.

ADVOCACY BEFORE THE LTB

Hearings where one party is not “heard” may be shorter in duration, but often result in matters taking longer to reach a final resolution because requests to review can be filed. Ensure that you understand how natural justice impacts and informs the hearing process and procedures before you choose to advocate for yourself before the LTB. Become familiar enough with these legal principles that you can recognise their presence and absence. That way, you can ensure that the rule of law is adhered to during your hearing and reduce the necessity for a review or appeal.

1. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para 20, Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), retrieved on 2024-03-15
2. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para 25, Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), retrieved on 2024-03-15

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No legal advice give. All information provided is for education purposes only and must not be relied upon as legal advice.

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About the Guest Author: Nicola Bain, MA, OCELT

Nicola Bain is a Paralegal, Notary Public, and Commissioner for Taking Oaths who facilitates access to justice throughout Ontario.

Before receiving her licence from the Law Society of Ontario, Nicola received a Master of Arts from the University of Glasgow, a post-graduate certificate in Teaching English as a Second Language from Humber College, and a Paralegal Diploma from Sheridan College.

Nicola advocates before the Landlord Tenant Board for landlords while ensuring they understand their rights and responsibilities. She offers legal coaching to those who wish to self-represent, as well as unbundled and full-service packages.

Website: https://lawsidelegal.ca
‍Email: nicola@lawsidelegal.ca
‍Phone: 1 (416)-953-5459

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