Sometimes, the hearing procedure breaks down, evidence isn't heard, procedural fairness and natural justice is denied, or the adjudicator makes a legal error or has a serious misapprehension of what the evidence before him actually was. Sometimes, the mistakes are small but cumulative leading the adjudicator to make the wrong decision. If you are on the wrong end of a bad decision, what can you do?
Like many Administrative Tribunals, the Ontario Landlord and Tenant Board has an internal review process. That review may be initiated by filing a Request to Review, which form is available on the Landlord and Tenant Board website.
The Review process is not automatic. In order for a review hearing to be scheduled, the person requesting the review must demonstrate in the Request to Review Form that it appears that there may have been an error in the decision. If successful in establishing that there may have been an error the Board will Order a Review Hearing to take place.
On the date of the Review Hearing, the party who requested the review will be required to convince the adjudicator hearing the Review that there was an error. If successful in this regard, then the adjudicator will set aside the Order and a new hearing will take place in which all of the evidence has to be lead again---this is often called a hearing de novo.
A big mistake that parties often make in filing a request to review is that they just re-argue the points they made at the hearing. This is not the purpose of a Request to Review and if you proceed in this way it is likely that the Request to Review will be dismissed without a hearing. Before filing a Request to Review I highly recommend that you read the Board's Guideline #8 which describes the purpose and methods to follow in filing a Request to Review.
The second way of challenging a decision of the Ontario Landlord and Tenant Board is by filing an appeal to the Ontario Superior Court of Justice, Divisional Court. An appeal to this Court is restricted and limited to a question of law (see section 210 of the Residential Tenancies Act). This means that in the Divisional Court the findings of fact made by the Board are generally not open to be disputed before that Court. The Divisional Court is only going to intervene in the decision if it can be demonstrated that there is an legal error with respect to the decision or if there was a problem in the procedure of the hearing.
To be frank, an appeal to the Divisional Court is exceedingly complex. It is highly improbable that anyone but a lawyer could be successful in filing an Appeal to the Divisional Court. Unlike the Landlord and Tenant Board proceedings, an appeal to the Divisional Court follows the technical Rules of Civil Procedure --see Rule 61.
A STAY OF PROCEEDINGS
If you are considering a Request to Review or an Appeal it is because the Order you have received is somehow wrong. If, for example, you have been ordered evicted you will be nervous about the timing of the appeal and the date by which you were supposed to move out. On an institutional basis, both the Board and the Court recognize that the Review Process and the Appeal Process will take a rather long time. Hence, the Board will consider granting a Stay of any order, if it is requested in the Request to Review and a good argument is made for why the Order should be stayed pending the Review Hearing.
Note that an appeal to the Divisional Court results, automatically, in a stay of the Order being Appealed. This means that the Order of the Board can not be enforced until the Divisional Court deals with the appeal or the Landlord brings a motion to lift the Stay.
Michael K. E. Thiele