Thursday, 8 November 2012

Review Order--Ontario Landlord and Tenant Board

About two weeks ago I represented a client at the Ontario Landlord and Tenant Board seeking the eviction of a tenant on the basis that he impaired the safety of other tenants, committed an illegal act, and interfered with the reasonable enjoyment of the premises by other tenants and the landlord.  The hearing was long for Board standards in that it took most of the day.  In proving the allegations we called 8 witnesses who testified as to the tenant's conduct.  Each of these witnesses was cross examined by the tenant's lawyer.  It was a long day and the decision was reserved (meaning the adjudicator was going to decide later and mail us a copy of his decision).

My client was elated to receive an Order in the mail wherein the tenant's tenancy was terminated and he was ordered evicted.  Given the length of this tenant's tenancy he was given a month and a half to move out after-which time my client would be entitled to file the eviction with the Sheriff for enforcement.  All of this was great for my landlord client.

In passing, my client asked me if this was final and whether anything could happen to stop this eviction.  To that question I advised that the tenant had two options. The first was to file a Request to Review and the second was to file an Appeal to the Divisional Court.  The tenant has the right to exercise either of these options within 30 days of the date of the decision.

About two weeks went by and neither my client nor I heard anything from the tenant.  My client was hopeful that the 30 day period would pass without an appeal or review.  Then, approximately two and half weeks after the original eviction order my client received in the mail a Review Order.  Not having been advised of any review hearing or any request to review my client was concerned about what this meant.  Hence, this article that briefly outlines the Review procedure.

Any party (Landlord or Tenant) and any person directly affected by an Order of the Board may, upon payment of the requisite fee, file a Request to Review with the Ontario Landlord and Tenant Board (Rule 29--Ontario Landlord and Tenant Board Rules of Practice).  Once the Board receives the Request to Review, an adjudicator will review the Request to Review to determine whether the request discloses a prima facie case.  This means that the adjudicator determines whether there is any apparent merit to the Request to Review.  The Request to Review does not have to be proved--it just needs to be strong enough for an adjudicator to reasonably conclude that there may have been an error in the Order or in the proceeding that needs to be more closely examined.

Where an adjudicator determines that there is no merit in the Request to Review, then the adjudicator will write an Order dismissing the Request to Review without holding a hearing.  In such an instance, the other side will quite possibly be unaware that a Request to Review was filed until they receive the Review Order denying the Request to Review.  That is what happened in the case I described above.

Where an adjudicator is satisfied that the Request to Review does disclose an issue or ground that calls into question  the validity of the Order (i.e. misapprehension of the evidence, procedural fairness issues, ability to participate), then the adjudicator will send the case to a Review Hearing.  When this is done, the original eviction Order is stayed and becomes unenforceable until the Review Hearing is concluded.

At the Review Hearing, the party who made the Request to Review must prove that there was some kind of error warranting a review.  The adjudicator who conducts the Review Hearing is not necessarily the same adjudicator who sent the Request to Review to Hearing.  Hence, it should not be presumed that just because a Request to Review was sent to hearing that the Review will be allowed.

Presuming that the party who requested the Review is successful in showing that there was an error of some kind that was important enough, the adjudicator conducting the review hearing will set aside the Order that is under review.  At that stage, the adjudicator hears the original case, all over again, from scratch.  None of the evidence from the first case is normally used.  It is as if the first case never happened.  Therefore, it is important for the applicant to be ready to prove the case all over again in the event that the Request to Review results in the setting aside of the original Order.

There is much to discuss in relation to Review Hearings that I won't go into in this article.  However, I will suggest to anyone contemplating filing a Request to Review that they take their time to set out exactly what the grounds are and to be precise.  Read the Rules and the Guidline published by the Board on its website.  A Review is not an avenue to re-argue the case--at least not initially.  It is important to put all of your best arguments forward in the written Request to Review.  If you hold back--assuming that you will give it your best at the Review Hearing--you may be denied that opportunity by the reviewing adjudicator who dismisses the Request to Review without holding a hearing.

Michael K. E. Thiele
Ottawa, Ontario

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Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.