LTB Order LTB-T-007363-23

Order under Section 21.2 of the Statutory Powers Procedure Act A. the 2023 ONLTB 41148 (CanLII) Residential Tenancies Act, 2006 Citation: J. v M., 2023 ONLTB 41148 Date: 2023-05-26 File Number: LTB-T-007363-23-RV In the matter of: 4, 309 Strathearne Avenue Hamilton Ontario L8H5K8 Between: R. J. T. A. K. M. Landlord Review Order R. J. (the 'T.') applied for an order determining that K. M. (the 'Landlord') was required to allow the T. to move back into the unit under section 53 of the Residential Tenancies Act, 2006 (the 'Act") A. failed to do so. This application was resolved by order LTB-T-007363-23 issued on April 25, 2023. On May 24, 2023, the Tenants legal representative requested a review of the order. A preliminary review of the review request was completed without a hearing. Determinations: 1. I have listened to the April 5, 2023 hearing recording A. have reviewed the Board’s application record. On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the April 25, 2023 hearing order, or that a serious error occurred in the proceedings or in the presiding Member’s exercise of discretion. 2. To paraphrase, in the request to review, the T.’s representative claims that the Landlord’s name is misspelled in the order, the presiding Member erred in his determination for rent abatement A. failed to order an administrative fine to the Landlord Order Page 1 of 4  which “provides for an apprehension of bias A. puts the administration of justice into disrepute” A. the Member offered “little support” for the T.’s circumstances. 3. With respect to the improper spelling of the Landlord’s name, parties may request to amend an order for clerical error. 4. The T.’s representative asserts that the presiding Member erred when he made a 2023 ONLTB 41148 (CanLII) finding that the breach occurred February 1, 2023 The T.’s representative claims that Member ought to have considered the “anticipatory breach” sometime around January 20, 2023. I disagree. A notice of breach is not the actual breach A. the contractual right, in File Number: LTB-T-007363-23-RV this case began February 1, 2023. The Member’s decision was consistent with the Board’s guidelines A. practice. 5. In the review request, the T.’s representative claims that the Member erred when he failed to order an administrative fine A. this determination “provides for an apprehension of bias…” 6. The Board generally does not review the discretion of the presiding Member unless the outcome is inconsistent A. outside the normal range of outcomes. I find the ruling with respect to the administrative fine is reasonable A. consistent with Board guidelines A. practice. 7. Additionally, having listened to the hearing recording I find the presiding Member conducted the hearing with impartiality A. professionalism. The assertion of bias without supporting details is inadequate. 8. The T. has not established a reasonable apprehension of bias. 9. Recently, in R. v. Fraser, [2023] 2 SCC 45 (CanLII), the Supreme Court of Canada affirmed its previous finding in Wewaykum Indian Band v. Canada, [2003] SCR 259. At paragraph 26 of R. v. Fraser, the Supreme Court repeats the traditional legal test to determine whether a reasonable apprehension of bias exists. The Court writes: “what would an informed person, viewing the matter realistically A. practically … conclude? Would he think that it is more likely than not, that [the trier of fact] whether consciously or unconsciously, would not decide fairly?” 10. At paragraph 27 of its decision in R. v. Fraser, the Supreme Court cites relevant paragraphs from Wewaykum Indian Band v. Canada. At paragraph 28, the Supreme Court summarizes the principles from Wewaykum Indian Band v. Canada A. qualifies the traditional legal test, described above, by noting: (i) There is a very strong presumption of judicial impartiality; Order Page 2 of 4  (ii) this presumption places a very heavy burden on the party seeking to rebut it; (iii) such a rebuttal requires cogent evidence sufficient to permit a finding that the Trial Judge is disqualified from rendering a decision because of bias; (iv) a determination of whether the presumption has been rebutted is highly fact specific A. contextual; (v) an allegation of judicial bias must be considered in the context of all the circumstances, 2023 ONLTB 41148 (CanLII) so an isolated or piecemeal analysis is never appropriate. 11. When considering “all the circumstances”, above, the Supreme Court gave examples of some relevant factors in Wewaykum Indian Band v. Canada. This was not meant to be an exhaustive list, but rather to illustrate what one might consider when determining bias: there are no ‘textbook’ instances. Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views A. activities, they must be addressed carefully in light of the entire context. There are no shortcuts. File Number: LTB-T-007363-23-RV 12. In the request to review, the T.’s representative claims that an “adjudicator is supposed to be unbiased A. impartial, A. the apprehension of bias received in this case is that displacement of the T. is insignificant compared to the story of the landlord.” 13. I have already determined that the hearing recording does not support the T.’s submission that the presiding Member was biased A. not impartial. There is nothing in the hearing recording that suggests the Member was disqualified from rendering a decision because of bias. 14. Essentially, the request to review seeks to challenge the presiding Member’s findings of fact. 15. In my view, the order sets out adequate reasons for the determinations made by the presiding Member. The Members findings of fact are entitled to considerable deference. I will not interfere with the assessment of the evidence by the Member of first instance, who had the opportunity of hearing the evidence in its totality. 16. Although the T. disagrees with the Board order, the Board’s review process is not an opportunity for a party to re-argue a matter that has been finally determined. In the absence of a demonstrable error in the April 25, 2023 order, or that a serious error occurred in the proceedings, the request to review the order must be denied. Order Page 3 of 4 It is ordered that: 1. The request to review order LTB-T-007363-23 issued on April 25, 2023 is denied. The order is confirmed A. remains unchanged. 2023 ONLTB 41148 (CanLII) May 26, 2023 ____________________________ Date Issued Dana Wren Member, Landlord A. T. Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. Order Page 4 of 4