Review of an Order
Interpretation Guideline 8

Interpretation Guidelines are intended to assist the parties in understanding the LTB's usual interpretation of the law, to provide guidance to members and promote consistency in decision-making.  However, a member is not required to follow a Guideline and may make a different decision depending on the facts of the case.


Introduction

LTB decisions are final and binding and may only be appealed on questions of law. See Residential Tenancies Act, 2006 (“RTA”) ss. 209(1), 210(1). 

The LTB has the discretion to review a final order where the order contains a serious error or a party was not reasonably able to participate in the proceeding. In making a decision to review, the LTB considers the public interest in preserving the finality of its decisions together with the opportunity to correct a serious error without the need to appeal or seek judicial review.

The LTB will only exercise its discretion to grant a review when it is satisfied the order contains a serious error, a serious error occurred in the proceeding or the requestor was not reasonably able to participate in the proceeding. Rule 29.2

A review is not an appeal or an opportunity to change the way a case was presented.

The purpose of the review process is not to provide parties with an opportunity of presenting a better or different case than they did at first instance. There is nothing in the record or in the request for review to support a determination that the Member applied improper principles in assessing the evidence introduced or that there was insufficient evidence before the Board to support its conclusions. I would not interfere with the assessment of the evidence by the Member of first instance, who had the opportunity of observing the witnesses and of hearing the evidence in its totality.

TSL-51694-14-IN-RV (Re), 2015 CanLII 23959 (ON LTB) at para 10.

See also TEL-25281-12-RV (Re), 2012 CanLII 45139 (ON LTB) and TEL-34298-13-RV (Re), 2013 CanLII 50425 (ON LTB).

There is no right to review an order.

Only Final Orders May be Reviewed

Requests for review must be about a final order or an interim order which makes a final decision about a party’s rights. See TSL-60151-15-IN-RV (Re), 2015 CanLII 25679 (ON LTB). For example, an interim order terminating a tenancy is a final decision about a party’s rights.

Request Form

The LTB’s “Request to Review an Order” form is available at sjto.ca/ltb.

Where the form is not used, the request to review must be in writing, clearly identified as a request for review and include the following information:

See Rule 29.7-29.8.

Rule 6 tells you how to file the request with the LTB. The request to review is not served on the other parties unless the LTB makes this direction.

Fee

The fee for a request to review must be paid at the time the request is filed unless requestor the granted a fee waiver. If the request to review is granted the LTB may refund the fee.

Who May Request a Review

Any party may request a review of a final order.  

A person who is directly affected by a final order may also request a review. For example, a residential complex has two owners but only one was named in the application and participated in the hearing. In that case, the other owner may request a review if the LTB is satisfied that the order affects his or her interests.

A requestor may not make more than one request to review the same order. A different party may request a review of the same order for different reasons.

Time for Review

A request for review must be made within 30 days of the date of the order or amended order. Rule 29.5 If you intend to request a review you must do so without delay.

If the request is late the requester must ask the LTB to extend the time and provide reasons explaining the delay. The request to extend time must be filed together with the request for review. Rule 15. The LTB will not consider a request to extend time unless it is made together with the request for review. 

In deciding whether to extend time for review the LTB must consider the requestor’s reasons as well as the length of the delay and any prejudice caused by the delay. See Knights Village Non-Profit Homes v. Chartier, 2005 CanLII 20799 (ONSC); TNT-64667-14-EXT (Re), 2015 CanLII 51511 (ON LTB).

The Review Process

There are two stages to the LTB’s review process. The first stage is a preliminary review of the request. The LTB may dismiss the request or send it to the second stage: the review hearing.

Preliminary Review

In most cases the preliminary review is conducted by a Vice-Chair. The Vice-Chair may assign preliminary reviews to a senior LTB Member. The Associate Chair or the Executive Chair may also conduct preliminary reviews. Preliminary review by the LTB’s senior adjudicators will enhance adjudicative consistency. 

Another Vice-Chair, or the Associate Chair, will normally carry out the preliminary review of a Vice-Chair’s order.

Request for Reasons

The reviewing adjudicator may request reasons for the order from the original hearing Member to assist in the preliminary review.  This request and any response will be in writing and forms part of the LTB’s record.

Decision

The reviewing adjudicator decides if the order may contain a serious error or whether the requestor may not have been reasonably able to participate.

The request may be dismissed at this point because all the information required by Rule 29.8 has not been provided or the request does not provide enough detail in its support or it does not meet the tests for review. Rule 29.2.

A request which simply alleges the order is wrong will usually be dismissed at the preliminary review. See for example TNL-09252-RV (Re), 2008 CanLII 82457 (ON LTB).

If the request is dismissed at this stage the LTB will issue an order but is not required to provide reasons for its decision.  Rule 29.11

Where the request is not dismissed the LTB will issue a notice of hearing to all parties.

Stay of the Order

At the preliminary review the reviewing adjudicator will decide whether the original order should be stayed (suspended) in order to conduct the review hearing. Or, where the order has been appealed to Divisional Court, the reviewing adjudicator will decide whether to lift the statutory stay.

All submissions about the stay should be included in the request. The LTB rarely asks parties for more submissions or holds a hearing on this issue because reviews are processed quickly.

The LTB will order a stay when it is satisfied a party will suffer harm that cannot be undone if the order is enforced. For example, an order for eviction may be stayed to allow the review to be considered before the eviction is carried out.

The LTB may include conditions to address any prejudice to a party resulting from the stay. For example, if the dispute is about arrears of rent the tenant may be required to pay some or all of the arrears into the LTB as a condition of receiving the stay.  

The stay remains in force until the review is decided unless LTB decides it is no longer appropriate.

Note: The party who benefits from the stay must provide a copy of the stay order to the Court Enforcement Office if the order is about eviction.  Rule 30.4.

The Review Hearing

Who hears the review?

The Vice-Chair will assign the review hearing as follows:

Form of Hearing

The LTB will decide the form of the review hearing after considering the issues to be decided. If the review hearing requires the presentation of evidence or where credibility may be a factor it will usually be held in person or by telephone. If the review is about a legal issue a written hearing may be held.

At the review hearing the LTB considers the parties’ positions and decides the request to review. The request to review may be dismissed or the LTB may decide to re-hear some or all of the application, ask the parties to provide additional evidence or submissions on a particular issue, or provide the parties with the opportunity to make further written submissions on a legal point.

The Re-Hearing

Unless the issues are very complex, where the review hearing is held electronically or in person, the LTB will make its decision on the request to review immediately and the re-hearing will follow the same day. Therefore, parties should bring their witnesses and all relevant evidence with them to the review hearing.

Where appropriate, the LTB may consider changes in the relevant facts occurring after the date of the original order. For example, the LTB would not ignore the fact a party has made new payments or repairs. If an overpayment occurred the LTB may order repayments.

After the re-hearing the LTB may decide to: 

If the original order is varied, suspended or cancelled the LTB may also order a refund of the filing fee paid to request the review. See s. 182 of the Residential Tenancies Act.

Grounds for Review: Serious Error

Serious error includes: 

Errors of Fact

A request to review based on an alleged error of fact must include specific details of the alleged error and explain how a different finding of fact would change the result.

The original hearing Member’s findings of fact are entitled to considerable deference. A request will not be granted simply because the reviewing adjudicator might have come to a different conclusion about the evidence. Even where it finds a factual error the LTB may not exercise its discretion to review if the error is trivial, does not relate to a material issue in dispute or would not change the result.

The LTB must be satisfied that there appears to be no rational connection between the findings of fact and the evidence in the original hearing. See SWL-16171-10-RV (Re), 2011 CanLII 13354 (ON LTB).

New Evidence

Parties are expected to make every effort to produce all relevant evidence in support of their positions in the original hearing. The review will be dismissed unless the LTB is satisfied the new evidence could not have been produced at the original hearing, is material to the issues in dispute and its consideration could change the result.  First Homes Society v Henry, [2002] O.J. No. 1754, (Div Ct.); NOL-16865-14-RV(Re), 2014 CanLII 78539 (ON LTB).

Unreasonable Exercise of Discretion

Orders granting relief from eviction (RTA s. 83(1)) or awarding specific remedies involve an exercise of the original hearing Member’s discretion and are entitled to deference. The LTB will not exercise its discretion to review these types of decisions where the result is within the range of reasonable, acceptable outcomes. TSL-62420-15-RV (Re), 2015 CanLII 67891(ON LTB).

Grounds for Review: Not Reasonably Able to Participate 

Section 209(2) expressly permits the LTB to review orders on the basis the requestor was not reasonably able to participate in the proceeding. 

The request must provide a detailed explanation why the requestor was unable to participate in the proceeding and satisfy the LTB he or she genuinely intended to participate. See Kewallal v. Jackson, 2011 ONSC 1557; King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708. See also TSL-21992-11-RV (Re), 2012 CanLII 27914 (ON LTB); TEL-09087-10-RV (Re), 2011 CanLII 26960 (ON LTB); SWT-07158-10 (Re), 2010 CanLII 67967 (ON LTB). This may include evidence about the requestor’s actions in preparing for the hearing, contacts with the LTB or other parties, retaining legal representation or seeking advice from a legal clinic. TSL-06175-10-RV (Re), 2010 CanLII 65490 (ON LTB).

Some examples where LTB has found a party was “not reasonably able to participate”:

The LTB will refuse requests where the requestor’s absence was the result of negligence or it finds no reasonable explanation for the failure to attend. 1474367 Ontario Inc. v. Millien, 2011 ONSC 1563; TSL-67802-15-RV(Re), 2016 CanLII 1738 (ON LTB); NOL-08906-12-RV (Re), 2012 CanLII 59993 (ON LTB); TNL-19146-11-RV (Re), 2011 CanLII 71522 (ON LTB). 

Board Initiated Reviews (BIR)

The LTB may review an order on its own initiative where it considers it appropriate. This happens most frequently where the LTB becomes aware that a party was not properly served with notice of a hearing and could not reasonably participate in the proceeding.

The LTB will exercise its discretion to initiate reviews for serious error in exceptional circumstances. TSL-50630-14-RV-IN (Re), 2014 CanLII 61347 (ON LTB); EAL-47728-15-RV2 (Re), 2015 CanLII 51518 (ON LTB).

The LTB will not consider a request that it initiate a review. The BIR is not intended as a second or third opportunity for review of a disputed order.



sjto.ca/ltb

July 15, 2016