) ) Advocacy Centre for Tenants Ontario Applicant – v. –, 2013 ONSC 7636

CITATION : Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board, 2013 ONSC 7636 DIVISIONAL COURT FILE NO.: 397/12 DATE: 20131211 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) Advocacy Centre for Tenants Ontario Applicant – and – The Landlord and Tenant Board Respondent )) )) )) )) )) Brian A.

Blumenthal, for the moving party Karen Andrews, for the responding party, ) ) ) HEARD: December 10, 2013 Newbould J. [ 1 ] The Landlord and Tenant Board (“LTB”) moves to quash a judicial review application brought by the Advocacy Centre for Tenants Ontario (“ACTO”) for an order prohibiting the LTB from applying rule 32 of its rules of practice in all matters before it.

For the reasons that follow, the motion to quash is granted. [ 2 ] ACTO is a clinic established by Legal Aid Ontario to advocate for legal protection of the housing rights of low-income tenants and homeless persons through test case litigation and law reform advocacy. It also manages a Legal Aid Ontario duty counsel program and through it delivers

summary legal services to low-income tenants. Legislation and rule [ 3 ] The LTB is established under the Residential Tenancies Act , 2006 , S.O. 2006 c. 17 (“Act”). The purposes of the Act are set out in

section 1 , which provides: Purposes of Act 1. The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. [ 4 ] Under the Act, the LTB is to make rules of practice and procedure.

More particularly, Rules and Guidelines Committee 176(1) The Chair of the Board shall establish a Rules and Guidelines Committee to be composed of the Chair, as Chair of the Committee, and any other members of the Board the Chair may from time to time appoint to the Committee. Committee shall adopt rules

(2) The Committee shall adopt rules of practice and procedure governing the practice and procedure before the Board under the

authority of this

section and

section 25.1 of the Statutory Powers Procedure Act. Committee may adopt guidelines

(3) The Committee may adopt non-binding guidelines to assist members in interpreting and applying this Act and the regulations madeunder it. Means of adoption

(4) The Committee shall adopt the rules and guidelines by simple majority, subject to the right of the Chair to veto the adoption of anyrule or guideline. Make public

(5) The Board shall make its rules, guidelines and approved forms available to the public. [5] In January, 2012 the LTB promulgated rule 32. The rule, and the commentary to the rule, is as follows- 32. Subject to the discretion of the Board Member, at a hearing before the Board, a party’s legal representative appearing onbehalf of a party may be both an advocate and a witness.

The Law Society of Upper Canada’s Rules of Professional Conduct provide that, subject to the discretion of the tribunal, a lawyer orparalegal shall not appear as both an advocate and a witness in the same proceeding unless the matter is purely formal oruncontroverted, or, the tribunal’s rules of practice allow for a lawyer or paralegal to be both an advocate and a witness. The Board’s practice is generally, in the absence of an objection, to allow a legal representative to be both a witness and an advocate inthe same proceeding.

On a challenge by a party, or in the exercise of the Board’s discretion, a Member, in making a decision whether topermit or to refuse a party’s legal representative to be both an advocate and a witness in the same proceeding, will consider a number offactors including, the type of application, whether the hearing is contested, the nature of the evidence proposed to be given, the potentialprejudice to a party, and the reasons given by the party’s legal representative appearing as an advocate who seeks the Board’spermission to give evidence in the proceedings.

Even where the Board allows a legal representative to be both a witness and an advocate in the same proceeding, the Board willconsider the weight to be given to the evidence. [6] ACTO is a member of the LTB’s stakeholder advisory committee. During a consultative process prior to rule 32 beingpromulgated, ACTO voiced serious reservations about the proposed rule, including assertions that the rule would place lawyers andparalegals in a conflict of interest and put their credibility in issue and that the rule was contrary to the general standard set by the LawSociety.

Nevertheless the rule was promulgated by the LTB. Position of the parties and analysis [7] ACTO recognizes that the LTB has the legislative jurisdiction to promulgate its rules. It takes the position, however, thatrule 32 is procedurally unfair and undermines the administration of justice.

It points out that a very high percentage of tenants whoappear before the LTB are unrepresented and are not equipped to deal with issues that will arise under rule 32. [8] The basic position of the LTB is that the rule cannot be challenged in a vacuum and that there can be no assessment ofprocedural fairness until such time as the rule engages the participatory rights of a party in the context of a proceeding and to theirdetriment. Absent that factual context, the argument that the rule in itself breaches procedural fairness is hypothetical and speculative.

Inmy view this position of the LTB is correct. [9] The test on a motion such as this to quash an application for judicial review is the plain and obvious test. In Deeb v. IIROC,2012 ONSC 1014 , [2012] O.J. No. 691, Pepall J. (as she then was) in quashing a motion for judicial review stated: 32 The test on a motion to quash is whether it is plain and obvious that the application cannot succeed: Adams v. Canada, 2011 ONSC325. Is it beyond doubt that the application for judicial review will fail?

[10] It is clear that rule 32 is discretionary. How it will be applied in any given case is unknown. The commentary by the LTBfollowing the rule indicates the kind of considerations that will be taken into account in the exercise of the discretion of a board member.Such an exercise of discretion may or may not be against the interests of a tenant and the results of the particular case may be a decisionin favour of the tenant not requiring any review or appeal by the tenant.

That is, whether rule 32 works procedural unfairness permittingan application for judicial review will not be known until an actual case is heard and determined. [11] Essentially for that reason, it cannot be established that rule 32 necessarily results in a procedural unfairness, which is whatACTO would have to establish as it seeks an order prohibiting the LTB from applying rule 32 of its rules of practice in all matters beforeit. [12] In Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 L’Heureux-Dubé J. made clear that the duty of fairness is not to be considered in a vacuum but rather in the specifics of a particular case. She stated: 21 The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set ofcircumstances. As I wrote in Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682,"the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case".

All of thecircumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal,supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, per Sopinka J. [13] There is little direct authority on the issue of challenging a rule of a tribunal or board, but what there is supports the LTB. InMinister of Citizenship and Immigration v.

Daniel Thamotharem, 2007 FCA 198, a challenge was unsuccessfully made to a guidelineissued by the chairman of the Refugee Protection Division of the Immigration and Refugee Board on the grounds that it deprived refugeeclaimants of a fair hearing. The guideline provided that the standard practice in a refugee protection claim would be for the RefugeeProtection Officer to start questioning the claimant, although the member hearing the claim might in exceptional circumstances vary theorder of questioning.

There were a large number of cases consolidated for the hearing of the appeals, all taken from particular decisionsrelevant to each claimant. Thus there was a great deal of evidence before the court as to how the guideline in question was being applied. [14] Evans J.A. held that the guideline was discretionary and that the evidence did not disclose that members slavishly followedthe general practice without considering the cases before them.

He stated: 10 For substantially the reasons that they gave, I agree with both Justices that Guideline 7 is not, on its face, invalid on the ground ofprocedural unfairness, although, as the Minister and the Board conceded, fairness may require that, in certain circumstances, particularclaimants should be questioned first by their own counsel. … 11 However, in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members' discretion on the conduct of refugeeprotection hearings.

The Guideline expressly directs members to consider the facts of the particular case before them to determinewhether there are exceptional circumstances warranting a deviation from the standard order of questioning.

The evidence does notestablish that members disregard this aspect of Guideline 7 and slavishly adhere to the standard order of questioning, regardless of thefacts of the case before them. … 82 In short, those challenging the validity of Guideline 7 did not produce evidence establishing on a balance of probabilities thatmembers rigidly apply the standard order of questioning without regard to its appropriateness in particular circumstances. [15] Unlike Thamotharem, there is no judicial review by ACTO attacking any particular decision of the LTB dealing with rule 32.Nor is there any evidence on this application as to how rule 32 is being dealt with by the LTB.

There is a transcript of one hearing onlyand no decision was made under rule 32 in that case and the case was adjourned by the member of the LTB. [16] ACTO refers to Canada (Attorney General) v. Mercier, 2010 FCA 167. In that case a number of inmates objected to adirective of the Commissioner of Correctional Service of Canada banning smoking in correctional facilities. They brought an applicationfor judicial review that failed. None of the applicants had defied the ban and been punished, and ACTO says that in spite of that thejudicial review application was heard.

There is no indication, however, that a motion to quash the judicial review application was soughtor even considered. Moreover, the directive was not one that gave prison wardens any discretion. It was mandatory, and the issue waswhether the directive was ultra vires the powers of the Commissioner. That is not the situation here. [17] In my view, it is plain and obvious that the application for judicial review is bound to fail. The motion to quash is granted. [18] ACTO acts in the public interest. I do not see this as a case in which costs should be ordered. No order as to costs.

Newbould J. Released: December 11, 2013 CITATION : Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board, 2013 ONSC 7636 DIVISIONAL COURT FILE NO.: 397/12 DATE: 20131211 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Newbould J. BETWEEN: Advocacy Centre for Tenants Ontario Applicant – and – The Landlord and Tenant Board Respondent REASONS FOR JUDGMENT Newbould J. Released: December 11, 2013