ALYN JAMES JOHNSON
PUBLIC LAW SOLUTIONS
Until very recently, the conventional wisdom has been that a landlord or tenant unhappy with a ruling of the Ontario Landlord and Tenant Board (”LTB”) had only one option: a statutory appeal to the Ontario Divisional Court on an error of law. Anyone who has tried this option knows that the chances for success are not good because errors of law are hard to prove and most LTB errors are errors of mixed fact and law.
Fortunately, the very recent judgment of the Supreme Court of Canada in Yatar v. TD Insurance Meloche Monnex (2024 SCC 8 (CanLII) | Yatar v. TD Insurance Meloche Monnex | CanLII) (“Yatar”) has affirmed that Canadian citizens have a constitutional right to have decisions of boards, tribunals, and other government decisionmakers “judicially reviewed.”
The Canadian law of judicial review provides for a much broader interrogation of public decisionmakers than that allowed under a statutory right of appeal on errors of law.
Yatar did not in fact change the law. Rather, it clarified the law, for the roots of this constitutional right go back several decades, and indeed, are arguably implicit in the very structure of our Constitution.
But the critical practical point is that Yatar provides clear authority that Ontario landlords and tenants can attack LTB decisions on much wider grounds than on an error of law via a statutory appeal. By commencing a “judicial review” proceeding at the Divisional Court, a person subject to an LTB decision can attack errors of mixed fact and law, and can do so on the standard of “reasonableness”: that is, was the LTB decision, in all of the circumstances, reasonable? Of course, litigants are reminded that internal LTB review procedures must be exhausted before either an appeal or a judicial review is attempted!
Several important points need to be added on the subject of concurrent judicial review and appeal proceedings.
First, there is a lot of uncertainty surrounding the appropriate procedures for bringing a judicial review where there is also a right of statutory appeal.
Does a landlord or tenant have to do both an appeal and a judicial review, or can a choice be made? This point is awaiting clarification. A good argument can be made that a citizen should be able to pick one or the other, and not have to do both. This makes sense from the perspective of judicial economy. But because the Residential Tenancies Act, 2006 provides for a right of appeal, it might be the case that that remedy has to be followed as well. The Ontario Court of Appeal has indicated (in the Yatar litigation) that you cannot do one and then wait to do the other if you fail. So choices have to be made upfront.
The safest route is probably to do both an appeal and a judicial review, although this will increase costs, and that might not be economically feasible for some landlords and tenants, depending on the amounts and issues at stake.
Once both proceedings are up and running, the Court of Appeal has indicated that they should be joined. Once joined, the costs will go down.
The exact procedural mechanism to be used to join the two proceedings is a little unclear. A “motion” to the Court would be one method, but motions are themselves quite expensive. Thus it is worthwhile exploring the alternative of an informal case conference, where the participants get together with the judge in a more relaxed setting and agree on the mechanics of joining. One issue that has to be ironed out, either by motion or case conference, is which timelines should apply: the judicial review timelines or the statutory appeal timelines. They are not the same.
A second point that should be stressed is there is some uncertainty as to where errors of procedural fairness will fit into an initial choice between the two proceedings. Errors of procedural fairness are generally understood to be errors of law and are a normal part of statutory appeals. However, judicial review applications often include claims of procedural unfairness.
An appeal begins with a Notice of Appeal, and an appellant is required to state all of the grounds of appeal in that Notice. A judicial review begins with a Notice of Application. Figuring out which proceeding to put procedural fairness claims in might need some careful consideration.
A third point that should be stressed is that Yatar’s welcome clarification that judicial review is available alongside a statutory appeal should not lead potential parties to underestimate the extreme complexity of judicial reviews. Navigating the sometimes-tortuous law surrounding judicial review can be very difficult, and in some respects much more difficult than navigating the law surrounding statutory appeals. Consultation with a legal professional is advisable. A judicial review would be a very demanding task for a self-represented litigant. Appeals are also by no means easy and require careful consideration. Again, consultation with a legal professional is advisable.
Two other points are worth briefly noting. While citizens have a constitutional right to judicial review, it might be possible for legislatures to set up an adequate alternative that satisfies constitutional standards. For example, a statutory appeal not limited to an error of law could arguably exhaust a right of judicial review completely. The critical point clarified in Yatar is that a statutory appeal limited to an error of law does not oust the right to judicial review.
Finally, while the framework for this blog has been on the Ontario Landlord and Tenant Board, the comments made above could in theory apply in any circumstances where a statute provides for a limited right of appeal on an error of law. Yatar itself, for example, arose under a different statutory regime, and not under the Residential Tenancies Act.
A concluding observation: there is a short and very important piece of legislation in Ontario called the Judicial Review Procedure Act that should be consulted before commencing a judicial review! Interestingly, section 2 of this Act expressly states that judicial review is available alongside a statutory appeal. In other words, we arguably should not have needed Yatar to clarify the governing law.
At any rate, Yatar is a very welcome addition to Canadian public law, and to the law of residential tenancies in Ontario.
April 14, 2024