) ) ABU FARUK, ANJUM SHARKER, ASIF SHAIKH, EASMATHARA CHOUDHURY, JANE GARCIA, JUBEL AHMED, JULIO CESAR GARCIA, KASRUZZAMAN CHOWDHURY, MD ABDULLAH AL MAMUN, MD REFAYETUL ISLAM, MD UQBAL, MOHAMMAD HABIBI RAHMAN, MOHAMMED ABDUL KADIR, MOHAMMED SAIDUL HAQUE, MOST SHAHIDA SU CHOWDHURY, MOYANO RIVERA, NADIRA PARVEN, PATRIC DAVID HOOK, SAMI CHOWDHURY, SERGIO HERNAN, SHAER FERDOUS, SHAH MOHAMMAD SAGIR, SHIRIN SMITH v. UMME HABIBA URMI, 2023 ONSC 2191

CITATION : Faruk v.

The Landlord and Tenant Board, 2023 ONSC 2191 DIVISIONAL COURT FILE NO.: 287/22 DATE: 20230413 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Ellies R.S.J, Backhouse, Lederer JJ BETWEEN: ) ) ABU FARUK, ANJUM SHARKER, ASIF SHAIKH, EASMATHARA CHOUDHURY, JANE GARCIA, JUBEL AHMED, JULIO CESAR GARCIA, KASRUZZAMAN CHOWDHURY, MD ABDULLAH AL MAMUN, MD REFAYETUL ISLAM, MD UQBAL, MOHAMMAD HABIBI RAHMAN, MOHAMMED ABDUL KADIR, MOHAMMED SAIDUL HAQUE, MOST SHAHIDA SU CHOWDHURY, MOYANO RIVERA, NADIRA PARVEN, PATRIC DAVID HOOK, SAMI CHOWDHURY, SERGIO HERNAN, SHAER FERDOUS, SHAH MOHAMMAD SAGIR, SHIRIN SMITH and UMME HABIBA URMI (The “Tenants”) Applicants – and – THE LANDLORD AND TENANT BOARD and PINEDALE PROPERTIES LTD.

Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Sima Atr i and Aliah El-Houni , for the Applicants (Tenants) Brian Blumenthal and Eli Fellman , for the Respondent, the Landlord and Tenant Board Kristin A. Ley, Joe Hoffer and Kevin Kok , for the Respondent, Pinedale Properties Ltd. ) ) HEARD by video in Toronto: March 20, 2023 Lederer J. [ 1 ] This is an application for judicial review. It concerns fifteen applications brought by Pinedale Properties, the landlord, to terminate tenancies as a result of rent arrears. The tenants believe that they were denied procedural fairness.

After the Landlord and Tenant Board decided the central issue, but before the final determination of which tenants would benefit from that ruling, the member who had carried the matter resigned from the Landlord and Tenant Board. The Board decided to start again, with a de novo proceeding . It did this without giving the parties an opportunity to comment and in the face of submissions from both sides that this was not the preferred course. Was this a denial of procedural fairness? [ 2 ] All the units involved were in the same residential complex. The tenants were, and are, all represented by the same counsel.

From the outset, the Landlord and Tenant Board understood that the tenants were advancing evidence and arguments that were common to them all. On January 6, 2021, the tenants requested that a case management hearing be held to consider how best to hear these

matters. [1] Could the cases be partially consolidated to deal with the common issues? [2] A case management hearing was held on February 16, 2021. It considered an array of issues, each directed to simplifying and allowing for the hearing of the common issues to proceed in an organized and expedited manner. On February 25, 2021, the Landlord and Tenant Board issued an Interim Order reflecting on the issues reviewed at the case management hearing. [3] [ 3 ] In that ruling, the Landlord and Tenant Board outlined its understanding of the issues that would be the subject of the hearing.

It understood, and the parties accepted, that there was no dispute that the tenants were in arrears with respect to the payment of rent and that the tenants intended to raise three defences: (

i) The tenants had formed an association, the Crescent Town Tenants’ Union. The association had tried to negotiate collectively, on behalf of its members, in an effort to resolve the issue of the rent arrears. The tenants indicated that they would argue that the reason the landlord brought the applications to terminate their tenancies was that they were members of the association. Eviction on that basis would be contrary to s. 83(3)(

d) of the Residential Tenancies Act [4] :

(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application [to evict] where satisfied that, ... (

d) 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. (ii) The tenants intended to argue that the requested orders should be refused because in deciding whether to grant relief from eviction, the Landlord and Tenant Board was required to account for the fact that the arrears arose during the pandemic. In making this submission the tenants would rely on s. 83(6) of the Residential Tenancies Act :

(6) Without restricting the generality of subsections (1) and (2), if a hearing is held in respect of an application under

section 69 for an order evicting a tenant based on arrears of rent arising in whole or in part during the period beginning on March 17, 2020 and ending on the prescribed date, in determining whether to exercise its powers under subsection (1) the Board shall consider whether the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant’s arrears.

The Landlord and Tenant Board noted and accepted that the tenants would argue that the landlord was required to negotiate with the association, as their representative and that the landlord having failed to do so, the orders to evict should be refused. (iii) It was understood that the tenants would argue that, in the circumstances, it would not be unfair to refuse the orders to evict as provided in s. 83(1)(

a) of the Residential Tenancies Act : 83

(1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement, (

a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; (b) ... [5] [ 4 ] In support of these defences the tenants proposed to call a number of witnesses whose evidence would be common to all of the applications to evict. The landlord took the position that this evidence was not admissible. At the case management hearing, the Landlord and Tenant Board heard submissions with respect to each of these witnesses and determined whether, and what part of the proposed evidence of each of them, it would hear.

For example: • the tenants proposed to call a particular witness to testify as to communications she had with the landlord. The Landlord and Tenant Board determined that she could testify on that basis but would not be allowed to testify about her opinions or inferences regarding the landlord’s conduct. • the tenants proposed to call a witness who had signed a repayment agreement to testify that in doing so, he or she had succumbed to pressure from the landlord and signed an unfair agreement.

The Landlord and Tenant Board found that if the reason a tenant chose to join the association, which the prospective witness had not done, was to negotiate collectively, that evidence would best come from such a tenant. The Board did not find the proposed third-party tenant’s testimony to be admissible. • the tenants proposed to call a witness to set the social context for the impact of the pandemic on the part of the population the tenants represented. The landlord objected. The witness knew nothing of the individual tenants who were seeking relief from eviction.

Relying on a decision from the Supreme Court of Canada ( R. v. S. (R.D.) [6] , the Landlord and Tenant Board found that “evidence regarding the social and economic context of the pandemic can inform the development of the relevant legal principle” [7] .

The Board acknowledged the landlord’s concern but found the evidence of the witness “may... provide relevant context for the Tenants’ testimony regarding their individual circumstances.” [8] The Landlord and Tenant Board concluded that, provided the witness was qualified, his evidence would be admissible. [ 5 ] There were three more witnesses the tenants proposed to call whose evidence was subjected to a similar level of analysis. One of which, like the last of the three to which I have referred, would be heard so long as his qualifications were accepted.

The tenants would not be permitted to call the other two witnesses. [9] [ 6 ] In its determinations made as a result of the case management hearing, the Landlord and Tenant Board considered requests made by the tenants that the landlord be ordered to produce emails which contained the words “union” or “group of tenants”, statements of its profits from the residential complex for the current and immediately previous year and copies of payment plans other tenants had entered into with the landlord, as well as the outcomes of those agreements. Had those agreements resulted in missed payments and ended with eviction?

As with the issue of which witnesses would be permitted to testify, the Landlord and Tenant Board was careful in

the analysis it undertook. With respect to the emails, it reviewed its authority to make such an order under s. 5.4 of the Statutory Powers Procedure :

(1) If the tribunal’s rules made under

section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for, (

a) the exchange of documents; (

b) the oral or written examination of a party; (

c) the exchange of witness statements and reports of expert witnesses; (

d) the provision of particulars; (

e) any other form of disclosure. [ 7 ] The Board reviewed a case that it felt informed the situation it confronted ( Ontario (Human Rights Commission) v. Dofasco [10] ) The Board ordered a word search of the emails be undertaken with an eye to producing emails that were relevant to the issues at hand. [11] [ 8 ] Since the landlord was not relying on financial hardship as part of its rationale for seeking the eviction orders, the Landlord and Tenant Board refused to order the production of any financial statements.

Similarly, the Board refused to order production of any of the payment plans that may have been entered into. The fact that a payment was missed or the tenant vacated the premises would not assist in understanding why, and therefore, would not further an argument that the landlord did not meaningfully or reasonably negotiate. [12] [ 9 ] As part of the case management hearing, the Landlord and Tenant Board also considered a request from the landlord seeking an order to restrain the tenants, or those supporting them, from taking

part in conduct not associated with the hearing. A demonstration in support of the “union” and the collective action it represented had taken place outside the home of an employee of the landlord and somebody had poured a bucket of cockroaches “...on the front step.” The Landlord and Tenant Board found that it had no jurisdiction to make such an order. [13] [ 10 ] Finally, at the case management hearing the Landlord and Tenant Board set the

schedule for the main hearing. It set four days aside. The first to deal with the common issues, with the individual evidence and arguments to be scheduled over the remaining three days. In scheduling the hearings, the Landlord and Tenant Board took account of the difference in these proceedings: eight matters were to be spread evenly over the three days. Four matters included maintenance issues raised by the applicable tenants. While it was hoped such concerns would be settled, they were to be separately spread out to “avoid scheduling overflow”.

There were five matters where the tenants had vacated their units; accordingly, there was no urgency and they were not scheduled to be heard during the three days. They were to be dealt with at a later date. There was one matter where the evidence of one witness had already been heard. Since that witness was not to be called in any of the other cases, his evidence was to stand in respect of that matter, but only that matter. [14] [ 11 ] What is the point of referring to the outcome of the case management hearing in such detail?

First, the Landlord and Tenant Board through the process it established acted to facilitate an efficient, fair and expedited proceeding. The directions sought demonstrated the desire of tenants, who are members of the association, to negotiate collectively, and that their concern that it is their membership in the association that was the actual catalyst for the applications to terminate their tenancies, was central to the position. [ 12 ] The matter did not proceed as had been determined through the case management hearing.

Instead, the tenants brought a motion that the applications be dismissed pursuant to subsections 83(3)(

c) and 83(3)(d). Subsection 83(3)(

d) is quoted above. Subsection 83(3)(

c) states:

(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that, ... (

c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights; [ 13 ] The motion was heard on June 28, 2021 and the decision rendered on July 7, 2021.

The Landlord and Tenant Board determined that the landlord was in breach of subsection 83(3)(d), not because the applications to evict were brought (both initiated and continued) in retaliation for attempting to organize the Crescent Town Tenants’ Union or for being members, but because those who were members and made proposals to the landlord to clear their arrears were treated differently than tenants who made such proposals and were not members of association: The landlord took a less flexible approach to negotiations with CTTU members than it did with non-members.

As a result, the non- members’ cases settled and the CTTU members’ cases did not settle. [15] [ 14 ] To arrive at this conclusion the Landlord and Tenant Board dealt with a series of issues which took it through a comprehensive and careful analysis: 1. Was the landlord required by s. 83(3)(

d) to negotiate with the association? [ 15 ] This entailed a consideration of the freedom of association under the Charter of Rights and Freedoms in contra-distinction to a supposed right to collective bargaining. As found by the Landlord and Tenant Board, this is not like the Labour Relations Act [16] which authorizes unions to both organize and negotiate collectively with their employers. The Board held that the freedom of association of those tenants who are members of the Crescent Town Tenants’ Union is protected, but they are not provided with the right to bargain

collectively with the landlord: Since the purpose of subsection 83(3)(d), is to protect tenants’ Charter freedoms to organize and join associations, the subsection should be read broadly to afford fulsome protection of those freedoms. However, it cannot be read as protecting tenants’ Charter freedom to negotiate collectively. [17] 2. The meaning of subsection 83(3)(c) [ 16 ] The tenants argued that they had a legal right to bargain collectively. They were seeking to enforce that right and, thus, should be protected through the application of subsection 83(3)(c).

Having found there was no right to collectively bargain, the Landlord and Tenant Board determined that the “[t]enants’ subsection 83(3)(

c) defense cannot succeed”. [18] 3. Did the landlord initiate these proceedings because the tenants were members of a tenants’ association ? [ 17 ] These events took place in the context of the covid-19 pandemic. The Landlord and Tenant Board took account of the circumstances. Shortly after the pandemic began, on April 1, 2020, the landlord received a letter from three of its tenants demanding that it charge no rent during the pandemic and warning that any attempted evictions would result in “a collective appropriate response from our community” [19] .

The letter “clearly implied that the authors intended to organize an association for the purpose of collectively refusing to pay rent opposing eviction for non-payment of rent [20] . At about that time the landlord filed an unusually large number of notices seeking to terminate tenancies because of arrears in rent. The 17 applications that were the subject of these proceedings were served between May and July 2020. [ 18 ] The tenants saw a connection. They argued that the large number of applications should be found to be in retaliation against the formation of the Crescent Town Tenants’ Union.

The Landlord and Tenant Board did not accept this submission. The applications made were consistent with the landlord’s long-standing practice of a written reminder that rent was overdue delivered around the 7 th day of the month, service of notices to end the tenancy (N4 notices) on the 14 th of the month and filing for eviction two weeks later, if the rent had not been paid. [21] There was a simpler explanation for the larger number of applications. As a result of the pandemic a number of the tenants had seen their incomes reduced and were unable to pay their rent.

The tenants produced expert evidence suggesting that the community had suffered a disproportionate loss of income from the pandemic. [22] [ 19 ] The tenants went so far as to suggest that the landlord’s motives were demonstrated by its having retained a particular law firm. The Landlord and Tenant Board was unprepared to draw that inference. Afterall, parties have a right to the counsel of their choice. [23] [ 20 ] The Landlord and Tenant Board determined that during this period the landlord had no way of knowing which of its 1330 tenants were members of the Crescent Town Tenants’ Union.

It had followed its normal policy in the filing of applications. The fact that the tenants were members of the Union was not the reason the applications were filed. [24] 4. Did the landlord continue these proceedings because the tenants were members of a tenants’ association? Was this a pertinent consideration ? [ 21 ] The landlord took the position that the Landlord and Tenant Board could not consider anything that happened after the applications were filed.

This being so, having determined that the applications were not initiated contrary to subsection 83(3)(d), the issue of membership in the association no longer had any application to this case. In taking this position the landlord relied on the words “being brought” in the subsection as having a temporal context limiting its application to the commencement of the any application to terminate a tenancy. It would not matter whether, after the applications were filed the landlord continued on with them because the tenants were members of the union. [ 22 ] The Landlord and Tenant Board did not accept this position.

As it saw the issue, the words “being brought” are ambiguous. They could refer to an event in the past or to an ongoing process. As a practical matter, to propose that, having commenced an application for reasons other than the tenant’s membership in an association, a landlord could continue the same application because of that membership, would render subsection 83(3)(

d) meaningless. It would not be hard for a landlord to work around the limitation at the outset and then continue on in order to impede membership in a tenant’s association. As found by the Landlord and Tenant Board, this would run counter to the intention of the legislation to protect tenants from selective eviction. [ 23 ] In considering this question the Landlord and Tenant Board took up the assertion made on behalf of the landlord that, in fact, the Divisional Court had already determined the meaning of the phrase “being brought” as it appears in subsection 83(3)(d).

This referred to MacNeil v. 976445 Ontario Ltd . [25] As recorded by the Landlord and Tenant Board, that case was an appeal from the Ontario Rental Housing Tribunal under the Tenant Protection Act. (In 2006 the Tenant Protection Act was repealed and replaced by the current Residential Tenancies Act . The Ontario Rental Housing Tribunal was dissolved and replaced by the Landlord and Tenant Board). In that case, as with this one, the tenants argued that the landlord had initiated eviction proceedings against them in retaliation for them complaining to a government authority. They asked that eviction be refused.

The Divisional Court upheld the decision saying that the Tribunal had “correctly decided the issues of law and fact”. Contrary to the submissions that were made on behalf of the landlord, the Landlord and Tenant Board found that there was no suggestion in the decision that the tenants had asked the Tribunal to consider anything that happened after the notices seeking eviction were served.

In such circumstances there was nothing in McNeil that would lead to a finding that the phrase “being brought” was limited to the point of initiation and that anything that happened thereafter was outside the scope of subsection 83(3)(d). [26] [ 24 ] It follows that it was appropriate for the Landlord and Tenant Board to consider whether in continuing the applications for eviction the landlord had acted in a fashion contrary to subsection 83(3)(d). It did so.

The Landlord and Tenant Board considered the discussion that had taken place between the landlord and tenants who were not members of the Crescent Town Tenants’ Union and those who were. These two sets of discussions were undertaken by different employees of the landlord.

[ 25 ] The employee dealing with those that were not members was prepared to offer twelve-month repayment plans and was amenable to considering longer term agreements. If asked if some portion of the arrears could be waived, he was prepared to include a waiver once the remainder of the arrears was paid. In considering the financial circumstances of the individual tenants, he did not ask them for documents that served to confirm their situation. He took them at their word. [ 26 ] In October 2020 some of those tenants who were members of the Crescent Town Tenants’ Union delivered offers to the landlord.

They summarized their financial circumstances, proposed that there be a waiver of some of their arrears and plans for payment of the remainder. Each of these proposals included a clause that the “Tenants and Landlord acknowledge that this Agreement is formed with support of the Crescent Tenants’ Union. Any renegotiation of its terms will occur between Tenant, Landlord and a representative from the Tenants’ Union.” [27] The employee that considered these proposals wrote back to each tenant stating that the landlord would not accept the proposal and making a counter proposal.

He did not explain why the landlord had not accepted the proposals that had been made. [ 27 ] Those tenants took the position that they had been treated differently. The landlord submitted that to establish that would require cross-examination directed to that point. The Landlord and Tenant Board did not agree. No one was challenging what either of the two employees had said.

In both cases the testimony accurately set out the approach that each of them had taken. [ 28 ] With these issues dealt with the Landlord and Tenant Board was ready to respond to three questions that it determined would have to be answered to respond to whether subsection 83(3)(

d) applied to protect the tenants who were members of the Crescent Town Tenants’ Union from eviction: [28] a. Were the tenants members of an association ? [ 29 ] The Landlord and Tenant Board pointed out that the landlord knew or should have realized that the tenants who sent payment proposals in October were members of the Union. It was clear from reading the proposals. [29] b.

Would the landlord have pursued the applications differently if the tenants had not been members of an association? [ 30 ] The landlord treated the members of the Crescent Town Tenants’ Union, who made proposals to deal with their arrears, differently than those who were not. For those who were not members, supporting documents demonstrating their financial circumstances were not required. There was a willingness to consider waiving some portion of the arrears and some waivers were agreed to.

For those tenants who were members of the union, supporting documents were required and waivers were not considered. [ 31 ] The Landlord and Tenant Board relied on Yundt v. Parker [30] which determined that making a finding that applied subsection 83(3) did not require bad faith on the part of the landlord. Whatever the reason for the different approach, the effect was that the landlord treated members eviction proceedings differently than those who were not associated with the union. The purpose of subsection 83(3)(

d) was to protect tenants from such differential treatment. [31] c. Is the differential treatment the reason for the applications “being brought”? [ 32 ] The Landlord and Tenant Board did not know which of the tenants who were members had made proposals and which had not. It found that those who had not made a proposal could not benefit from subsection 83(3)(

d) since they had not participated in the negotiations. For those who had, the Landlord and Tenant Board found that different treatment was the reason why the application to evict “continued to be brought” and allowed for the protection from such treatment under subsection 83(3)(d). The Landlord and Tenant Board observed that but for that different treatment those cases might also have settled. [32] [ 33 ] Why was it necessary to review the reasoning, rationale and decisions of the Landlord and Tenant Board in such detail?

It shows that with the procedure the Board had ordered having been displaced by the motion brought by tenants, it adopted and dealt with each of the issues in a comprehensive manner. This was undertaken in furtherance of giving the issues careful consideration in a fair and expedited proceeding. [ 34 ] What was left to bring the process to an end? The Landlord and Tenant Board needed to know which of the tenants, who were members of the Tenants’ Union had made proposals to resolve their arrears.

With that information in hand the Landlord and Tenant Board would know which of those tenants were protected from eviction by subsection 83(3)(

d) of the Residential Tenancies Act. With this in mind the Landlord and Tenant Board recognized that the motion by the tenants could not yet be determined. Once the evidence that proposals had been made was adduced, the applications to evict those tenants would be dismissed. [33] [ 35 ] The tenants rely on the Affidavit of Leila Gaind, a lawyer at the Community Justice Collective that was affirmed on July 22, 2022.

In that affidavit Leila Gaind deposed that she was “advised that on July 9, 2021 the tenants submitted the evidence that Member Whitmore requested” she does not indicate who or how she was so advised but includes as Exhibit B an email to the Landlord and Tenant Board which has as the subject line “ATTENTION MEMBER WHITMORE - SEIZED, File 15749 et al (Urgent Evidence re Jully 7 IN Order)”. [34] The email states: Pursuant to Member Whitmore’s July 7 Interim Order, Tenants attach evidence requested by the Board.

In Par. 103 of the Interim Order, Member Whitmore writes that the evidence is not yet before the Board as to which respondent Tenants sent repayment proposals to Pinedale Properties. The paragraph continues: “however, once the evidence has been adduced, the applications to evict those Tenants will be dismissed.” Tenants submit and attach all 17 respondent Tenants’ proposed repayment plans. Each repayment plan was submitted to Pinedale Properties.

Repayment plans have also previously been submitted in Tenants’ individual evidence. [35] [ 36 ] In the email the tenants submitted that, the necessary evidence having been provided, no further hearings were necessary. They requested that the applications be dismissed.

[ 37 ] On July 27, 2021 the tenants brought a motion that any subsequent hearing be in writing. Given the limited requirement of what remained, that would be sufficient. Among the concerns expressed was the idea that to proceed otherwise would “allow Pinedale to relitigate the central question of retaliation”. It was submitted that this would be “neither fair nor expeditious. [36] On July 30, 2021 the landlord responded to that motion with submissions arguing for individual video hearings.

No decision on the motion was made and no hearing was scheduled. [37] [ 38 ] At some point in early November 2021 (no specific date is referenced), the parties learned that the member of the Landlord and Tenant Board who conducted the proceeding, including the hearing and decision of July 7, 2021 was resigning from the Board. [38] On November 12, 2021 the landlord wrote to the Landlord and Tenant Board requesting that the hearings be scheduled without further delay, and specifically asking that the Board not proceed by way of de novo hearings: It is the position of Pinedale Properties that the hearings should continue and conclude based on the record and the evidence and Interim determination to date.

This matter should not be directed to a hearing de novo, as that option would amount, in our respectful submission, to an abuse of process and parties who have been left in a continuing state of uncertainty and financial prejudice (to the tenants and to Pinedale) while this matter remains open. [39] [ 39 ] On November 22, 2021, counsel for the tenants wrote to the Landlord and Tenant Board to express their agreement that a de novo hearing was not required: On July 27, Tenants...submitted a motion for any further necessary hearings to occur in writing and attached the evidence necessary to show the differential treatment of tenant union members.

Tenants await a decision from the Board dismissing the eviction applications before it. [40] [Emphasis in the original] [ 40 ] Nothing happened until March 30, 2022. On that day counsel for the tenants, without any prior advice, received 17 “Notices of Pre-Hearing Video Conferences” all of which noted: The Board has scheduled this application for a de novo (new) hearing. This means the hearing will start fresh with a new member. [41] [ 41 ] No reasons were provided explaining the decision of the Landlord and Tenant Board to proceed de novo.

The Landlord and Tenant Board had not communicated any response to the motion and submissions filed by the parties during July 2021. At the prehearing the Landlord and Tenant Board refused to hear submissions to be made on behalf of the tenants, that proceeding with de novo hearings would be procedurally unfair. The stated reason for this refusal was that the decision to proceed de novo had already been made. [42] On May 9, 2022 counsel for the tenants wrote to the Landlord and Tenant Board urging it to reconsider its decision.

Proceeding in this fashion after findings of law had been made in support of the tenants’ motion to dismiss amounted to an abuse of process: The principles of fairness and natural justice dictate that litigants must be able to rely on decisions by administrative decision-makers. There is no justification for rehearing issues that have already been decided. A new decision that contradicts the findings already made by the Board will further erode public trust in this tribunal and its processes, and violate the Tenants’ right to fairness. [43] [ 42 ] The Amended Notice of Judicial Review was issued on June 10, 2022.

Standard of Review [ 43 ] The central issue, really the only issue on this judicial review, is whether in setting aside the decision that had been made and requiring that there be a de novo proceeding the Landlord and Tenant Board denied the tenants procedural fairness. In the case of Law Society of Saskatchewan v. Abrametz [44] the Supreme Court of Canada clarified that the standard of review applicable to questions of procedural fairness and abuse of process in a statutory appeal is correctness.

Analysis [ 44 ] The question to be dealt with is whether it was a breach of procedural fairness for the Landlord and Tenant Board, having carefully considered the issues being raised and in that context: • having determined to consolidate the 17 applications so that the issues common to them all could be considered together, • having reviewed the prospective evidence of each of six individual witnesses, whether, given that evidence, they would be permitted to testify or if that evidence should in someway be limited, • having considered whether certain emails should be produced and how they would be identified, that the financial statements of the landlord and any payment plans that had been agreed need not be produced, • having set a

schedule which prospectively separated the common issues from individual concerns and organized the individual hearings taking account of difference in the proceedings. [ 45 ] Having been confronted with motions that the application to terminate the tenancies and evict the tenants be dismissed pursuant to subsections 83(3)(

c) and 83(3)(d), the Board noted: • conducted a full hearing, carefully analyzing each aspect of the matter, • researched and considered cases found to be helpful, and • applied the facts to a series of questions that logically led to the answer that in some, but not all, cases the actions of the landlord breached subsection 83(3)(

d) of the Residential Tenancies Act.

[ 46 ] Recognizing that the individual hearings required nothing more than a demonstration of which tenants that were members of the association had made a payment proposal, the Board • stated that upon a tenant demonstrating that a payment proposal had been made the applicable application to evict would be dismissed, • having within days of releasing its decision, received, what the tenants now submit, was the evidence that showed such proposals had been made by all 17 tenants, • having received a submission from the tenants that any hearing concerned with establishing that such payment proposals had been made be, in writing, and • receiving submissions from the landlord that such hearings should conducted by video took no action to respond to either the evidence provided or the processes suggested. [ 47 ] Finally, after learning that the Board member who had organized the process, conducted the hearing, determined that there was a breach of s. 83(3)(

d) and identified the one fact that, in each individual case remained to be established, was leaving the Board: • received submissions from both parties that the matter should proceed based on the process that that had taken place and that there should not be a de novo hearing, • did nothing for five months following the parties learning of the departure (early November to March 30, 2022), and then • without notice or warning advised the parties that the process would begin again, refused to hear and consider submissions as that determination. [ 48 ] This matter proceeded through all the substantive debate, to where the results were known.

Only the identity of which tenants would benefit remained to be established. Then, in the face of concerns raised by both parties and approximately five months after the departure of the Board member, the Landlord and Tenant Board, without consultation and any apparent consideration of the impact on the parties, announced a decision to start again. To adjust a well-worn cliché the Landlord and Tenant Board led these parties to water, left them to wait and then, months later told them they would not be allowed to drink. Rather they had to start the trek again.

To my mind, it should not be difficult to see this as procedurally unfair. [ 49 ] The landlord and the Landlord and Tenant Board demur. For the landlord, this is a change. In its email, of November 12, 2021, its counsel described the prospect of further delay and a fresh start as an “abuse of process”. In his submissions, in response to a question from the court, counsel explained the change. The landlord intended to appeal and wanted to get on with it. (As I heard it, this is contrary to another statement made by counsel, that no final determination was made as to applicability of subsection 83(3)(d).

The question of whether it saved any of the tenants from eviction remained open.) Whatever the explanation, it does not matter. The stated position was that to start again would be an abuse of process. This was relied on by the tenants and stood as the only view expressed, and available, to the Landlord and Tenant Board for it to consider and take into account. [ 50 ] For its part the Landlord and Tenant Board refers on Baker v.

Canada (Minister of Citizenship and Immigration. [45] It lists the “five non-exhaustive list of factors that inform the content of the duty of fairness”: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself. [46] [ 51 ] These factors are commonly referred to in cases where procedural fairness is raised.

Their application, however, does not conclusively determine the presence or absence of a fair procedure. In Canada (Minister of Citizenship and Immigration) v.

Vavilov [47] the Supreme Court of Canada introduces its reference to “Baker factors” with the following: The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific. [48] Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances. [49] [ 52 ] This being so, I repeat what has already been said, in the context of this case, it is hard to understand how a reopening of the entire case in the face of a resolution of the substantive issue following a careful setting of the process and a comprehensive consideration of the issue can be said to be procedural fair. [ 53 ] The Landlord and Tenant Board refers specifically to the fifth of the five factors in Baker .

It quotes Baker , as follows Regarding the fifth factor, the Court in Baker noted that the fairness analysis should “[also] take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.” [50] [ 54 ] The paragraph in Baker carries on: While this, of course , is not determinative, important weight must be given to the choice of procedures made by the agency itself and its

institutional constraints: IWA v.

Consolidated-Bathurst Packaging Ltd. [51] [Emphasis added] [ 55 ] The difficulty with the submission made on behalf of the Landlord and Tenant Board is that it is founded on the idea that the decision to start again is administrative in nature, related only “to the scheduling of hearings and how the LTB manages its adjudicative resources” [52] As such it is said that it lies within the authority of the Board to control its own process. [53] On this basis it is submitted that the Landlord and Tenant Board is not required to provide an explanation or reasons for its determination to begin again.

This submission taken to its logical albeit extreme end, suggests that the Landlord and Tenant Board without explanation could stop any of its proceedings and require the parties to begin again. As it is, while everyone assumes that the reason for the de novo proceeding is the member’s departure, no one actually knows. The notices issued by the Landlord and Tenant Board on March 30, 2022 indicates that the de novo proceeding “means the hearing will start fresh with a new member” (see fn. 44 above) but they do not say why the process has to begin again. Could there be another reason?

Only the Landlord and Tenant Board knows but the tenants were at some pains to point out to a similar decision made by the same member before his departure: The Goodwood Tenants, like the tenants here, received favorable interim orders from Member Whitmore, including orders agreeing that the proceedings raised common issues of retaliation and should proceed collectively... Like the tenants here, Member Whitmore also failed to provide the Goodwood Tenants with decisions and orders for motions before him.

However, unlike the Tenants here, the Board has scheduled the Goodwood Tenants’ hearings for July 25th, and has not stated that they will proceed de novo. Based on the Board’s direction to date, it appears that, Goodwood tenants do not need to relitigate their case and member Whitmore’s prior decisions stand. [54] [ 56 ] Unlike the Notices delivered, in this case on March 30, 2022 (see fn. 36) the Notice in Goodwood states: The hearing to consider the landlord ’s application was not completed and the hearing was adjourned.

Another date has been scheduled to continue the hearing at the time and date set out below. [55] [Emphasis in the original] [ 57 ] If the reason for the de novo hearing is the departure of the member one has to wonder why the decision in the Goodwood case is different. [ 58 ] As it is, and contrary to the submission made on behalf of the Landlord and Tenant Board, the decision to hold a de novo hearing was not purely administrative. It had a real and substantive impact, particularly on those tenants who were members of the Crescent Town Tenants’ Union, and who made repayment proposals to the landlord.

For those people, the applications to evict were to be dismissed. If the decision of the Landlord and Tenant Board to proceed with a de novo hearing is sustained, they will have to start again. I point out that the initial response of the landlord to the departure of the Board member expressed concern for the prejudice a de novo hearing would cause to both the landlord and the tenants (see fn. 42 above). [ 59 ] The Landlord and Tenant Board goes further.

In determining to proceed de novo the Board submits it was respecting the ancient principle audi alterem partem generally understood to refer to the right to be heard: The Latin phrase upon which Mr.

McIntosh relies – “ audi alteram partem ”, meaning listen to the other side... [56] ... ...the principle of audi alteram partem —decisions of importance cannot be made unless affected parties have had the opportunity to respond to material evidence offered against them. [57] ... “let the other side be heard as well” [58] [ 60 ] In this case, in its submissions, the Landlord and Tenant Board extended the meaning of the phrase by reference to Administrative Law in Canada (7 th ed. ) to include the provision that the right includes starting again if a single hearing officer is unable to complete the hearing: Where a quorum is prescribed by statute or regulation, a hearing by fewer members is invalid and a decision is void.

If one member is lost, leaving no quorum, the remaining members may not continue the hearing, not even if the absent member is replaced because the replacement has not heard the evidence presented before joining the panel, unless the parties consent to the change in membership of the panel part way through the hearing. Otherwise, a new panel must commence the hearing anew. Similarly, if the Tribunal is constituted by a single member is unable to complete the proceeding, the replacement must start the proceeding anew.

Lack of a prescribed quorum may not be waived by the parties because the purpose of a quorum is to serve the public interest through the collective wisdom of a minimum number of members. [Footnotes omitted, emphasis added]. [59] [ 61 ] There is nothing in this quotation that demonstrates the meaning attributed to the phrase audi alterem partem includes a requirement that a hearing be conducted by a single member without change. Obviously, as a general matter one would expect this to be the case, but its not what audi alterem partem is directed to.

These rules are in place to advance fairness not set it to the side. In exceptional circumstances the court can and will intervene. Contrary to the submission made on behalf of the Landlord and Tenant Board, this is such an exceptional circumstance. The substantive issue was resolved by the member who then left. All that remained was to determine which of the tenants, who were members of the “Union”, had made payment proposals. This was a separate independent fact that was extricable from the determinations that had been made.

It bears noting that the evidence, said by the tenants to demonstrate which of them had made a payment proposal, was delivered on July 9, 2021, or four months before the tenants learned of the departure of the member of the Board. I have already noted and do not accept the submission of counsel for the landlord that the question of whether

the application of subsection 83(3)(

d) remained open to be reconsidered on each of the individual hearings and could be found not to apply in this situation. To accept that this was the case would render meaningless the efforts of the Landlord and Tenant Board to consolidate, treat issues as common and expedite the hearing. Any determination made would be open to reconsideration.

Nothing would have been accomplished despite the efforts of the Landlord and Tenant Board to organize the proceedings. [ 62 ] In dealing with this judicial review, there is no need to go beyond the understanding that the process adopted by the Landlord and Tenant Board in deciding to procced de novo was procedurally unfair. If the process is unfair it has to be set aside; the application should be granted. Even so the tenants submit that there are underlying legal concerns on which the application could be based.

The tenants submit that the proceeding as proposed would be in breach of the legitimate expectation created by the determination that the Landlord and Tenant Board would seek evidence, consider if payment proposals had been made by members of the association and if so, a finding made dismissing the relevant application. The tenants make another submission. They say that the issue of whether subsection 83(3)(

d) of the Residential Tenancies Act provides a defence in this case having been decided, any attempt to rehear the issue would be subject to issue estoppel and ought not to proceed. [ 63 ] I would not apply either proposition to this situation. Generally, legitimate expectation arises where a government agency promises a process and then reneges on the promise, denying the hearing or consideration that was the subject of the promise. I would be loathe to apply that principle here. The Landlord and Tenant Board refers to itself as a high-volume tribunal. Typically, it receives around 81,000 applications a year.

In the year 2020-2021 it received a reduced number, 48,422.

During 2020-2021, it resolved 35,983 applications. [60] The purpose of the Residential Tenancies Act is stated to be: 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. [ 64 ] The Landlord and Tenant Board is engaged in resolving these disputes in a fashion that reflects this effort to balance the rights and responsibilities of landlord and tenants.

This directive and the numbers involved require it to adopt procedures that, while providing an adequate opportunity to understand the issues and for both parties to be heard, allows for flexibility and expedition. To so easily suggest that this or any tribunal should be tied to procedures outlined along that way would detract from their ability to reasonably and fairly do the job we are asking them to do.

In this case it would mean that the landlord, confronted with the tenants’ motion to dismiss the applications to evict in the face of the process promised by the case management meeting, could have raised a similar concern. The problem in this case is not with the change in process but with its impact on the decision that had already been made. [ 65 ] This raises the question of whether issue estoppel could apply. Issue estoppel has been defined as: When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies.

Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action.

The right, question, or fact, once determined , must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis added.] [61] [ 66 ] As a general proposition this refers to circumstance where a question that has been finally decided between the same parties is raised in a subsequent proceeding. [62] In Danyluk v. Ainsworth Technologies Inc. [63] to which the tenants refer, an issue between an employee and her former employer was determined within a complaint she had made pursuant to the Employment Standards Act. The issue having been determined issue estoppel applied.

The employee was not allowed to contest the issue within her action for wrongful dismissal. In the case being considered, there is no subsequent proceeding. Rather it is a restart of the same proceeding, commenced by the same applications to evict. Ultimately the reliance on issue estoppel is subject to discretion.

The factors to be considered in determining whether issue estoppel should be applied in any given case include the understanding that: The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case. [64] [Emphasis added] [ 67 ] This case is determined by the lack of procedural fairness. There is no need to apply issue estoppel. To do so would raise the prospect of issue estoppel being applied in the context of an ongoing process undertaken by an administrative tribunal.

In any circumstance, this could disrupt such a process and detract from the orderly administration justice. This prospect is underscored in context of a high-volume tribunal, attempting to resolve a continuous flow of disputes, in respect of a common relationship such as that between tenants and landlords. [ 68 ] If something further is required, there is a better answer. Like issue estoppel, abuse of process precludes re-litigation when it would undermine the integrity of the adjudicative process.

It arises from the inherent duty of the court to prevent misuse of its procedure and maintain public confidence in the proper administration of justice, including the orderly, efficient, timely, and principled resolution of civil disputes: [T]he doctrine of abuse of process concentrates on the integrity of the adjudicative process … if the result in the subsequent proceeding is different from the conclusion reached in the first one on the very same issue, the inconsistency, in of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [65] [ 69 ] In administrative proceedings abuse of process is a question of procedural fairness. [66] In Law Society of Saskatchewan v.

Abrametz [67] the Supreme Court of Canada considered the relationship of abuse of process to delay. It may be that “...the requirements of procedural fairness sometimes slow the pace at which the proceedings progress. Whether the resulting delays are justified will depend on the circumstances of each case.” [68] That is not the case here. Delay is not the root of the problem. It is the substance of the treatment of the parties in the particular circumstances.

[ 70 ] Through consultation with the parties at a case management hearing, a consolidated process led to the determination of the substantive issue. All that remained was to determine who qualified for the remedy. Despite the departure of the member of the Board, both parties indicated the matter should continue. The Board on its own, without consultation decided to start again, possibly with a different process (individual not consolidated) raising the prospect of a different and inconsistent finding on the same issue.

The way the Landlord and Tenant Board has dealt with the departure of its member has squandered the care taken at the outset and in so doing has risked its credibility with those it serves. Conclusion [ 71 ] For the reasons reviewed herein judicial review is granted. The decision of July 7, 2021 stands. The matter is returned to the Landlord and Tenant Board to determine which of the parties, who were members of the Crescent Town Tenants’ Union made repayment proposals and for the applications to evict those tenants to be dismissed.

Costs [ 72 ] The tenants as the successful party seek costs in the amount of $7,350.00. The landlord submits that in these circumstances either there should be no award of costs (the counsel for the Tenants is acting pro bono ) or, in the alternative any award of costs, should be paid by the Landlord and Tenant Board. The Landlord and Tenant Board, as is its practice does not seek costs and submits it should not be ordered to pay costs. [ 73 ] It is the failure on the part of the Landlord and Tenant Board to respond appropriately to the departure of its member that has caused the need for this application.

The Court does not, as a rule award costs against tribunals in the face of errors they may make. On the other hand, the landlord, who initially took the position that a de novo proceeding would be an abuse of process complicated the matter by changing its position. As a high-volume tribunal, it is inevitable that the Landlord and Tenant Board will make errors. In the particular circumstances of this case, it is not appropriate that the Board be asked to pay costs, nor should the landlord, as the unsuccessful party be asked to pay them all.

Costs to be paid by the landlord to the tenants in the amount of $3,500. _______________________________ Lederer, J. I agree _______________________________ Ellies, RSJ I agree _______________________________ Backhouse, J. Released: April 13, 2023 CITATION : Faruk v. The Landlord and Tenant Board, 2023 ONSC 2191 DIVISIONAL COURT FILE NO.: 287/22 DATE: 20230413

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Ellies R.S.J, Backhouse, Lederer JJ BETWEEN: ABU FARUK, ANJUM SHARKER, ASIF SHAIKH, EASMATHARA CHOUDHURY, JANE GARCIA, JUBEL AHMED, JULIO CESAR GARCIA, KASRUZZAMAN CHOWDHURY, MD ABDULLAH AL MAMUN, MD REFAYETUL ISLAM, MD UQBAL, MOHAMMAD HABIBI RAHMAN, MOHAMMED ABDUL KADIR, MOHAMMED SAIDUL HAQUE, MOST SHAHIDA SU CHOWDHURY, MOYANO RIVERA, NADIRA PARVEN, PATRIC DAVID HOOK, SAMI CHOWDHURY, SERGIO HERNAN, SHAER FERDOUS, SHAH MOHAMMAD SAGIR, SHIRIN SMITH and UMME HABIBA URMI (The “Tenants”) Applicants – and – THE LANDLORD AND TENANT BOARD and PINEDALE PROPERTIES LTD. Respondents REASONS FOR JUDGMENT Lederer, J. Released: April 13, 2023