LTB Hearing Didn't Go Your Way? Appealing to Ontario's Divisional Court

Introduction to Ontario Landlord Series

[00:00:08] Kevin Breitner: Hey everybody, here we go — welcome to another episode of CRESI’s Ontario Landlord Series, a podcast for Ontario-based landlords so you’re getting the right, correct information to make your landlording experience the best it can be. We cover a lot on this show, and we always bring in experts. Today we’re joined by a past guest and a good friend — we call him the lawyer in our network — Gibrian Malicki-Sanchez, a third-generation lawyer at his firm. He spoke to us before in general terms about what to do when a hearing doesn’t go your way. Today we’re going to talk about something specific: Divisional Court appeals. Gibrian, why don’t you introduce yourself again — you’ll do a better job than I will — and let’s get into why this can happen.

Meet Gibrian Malicki-Sanchez & Defining an Appeal

[00:01:03] Gibrian Malicki-Sanchez: Hi, Kevin, thanks for having me on again. I’m happy to share information with landlords and anybody experiencing the Landlord and Tenant Board. Today I’m going to be talking about Divisional Court appeals. I should first explain what an appeal is: simply, it’s a legal process where a party asks a higher court to review a decision made by a decision-maker, such as the Landlord and Tenant Board. It’s important to know that an appeal is not a new hearing and not a chance to re-argue your whole case — instead, it’s a review of whether the original decision-maker made a legal error.

Can Both Sides Appeal? The 30-Day Deadline

[00:01:54] Kevin Breitner: Sorry, can both sides request an appeal?

[00:01:59] Gibrian Malicki-Sanchez: Of course, both sides can request an appeal. The timing works like this: you’ve gone through the entire LTB process, the board member has issued a decision, and before enforcement really begins there’s a 30-day period everybody should be aware of. Either party can do one of two things: request that the board review its own order — on the basis the board made a serious error, or that one of the parties wasn’t reasonably able to participate — or appeal to the Divisional Court. Your option to appeal to the Divisional Court is based on whether you believe the board member misinterpreted the law, applied the wrong legal test, or made a serious procedural mistake.

Section 210 of the Residential Tenancies Act

[00:03:01] Kevin Breitner: This isn’t very common, and I know this will be a great episode for people to understand their options if they ever get into this situation. You mentioned it could go back to the LTB first, but only if you’re challenging an error the board made — not if you simply disagree with their judgment. It has to be an error in law. Does that apply the same way whether the landlord or the tenant is the one appealing to the Divisional Court?

[00:03:48] Gibrian Malicki-Sanchez: It has to do with the law.

[00:03:50] Kevin Breitner: It has to do with the law and how they judged what happened.

[00:03:54] Gibrian Malicki-Sanchez: Exactly. This is set out in the Residential Tenancies Act at Section 210, which says any person affected by an order of the board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. If you want to know more about “serious error” or “not reasonably able to participate,” that’s set out in the Landlord and Tenant Board Guide on the LTB’s website. The Residential Tenancies Act also sets out what the Divisional Court can do — it can affirm, rescind, amend, or replace the board’s decision or order, or remit the matter back to the board with its opinion so the board can apply the correct law. The Divisional Court can also make any order relating to the matter that it considers proper.

[00:04:55] Kevin Breitner: Let me give two examples so listeners can understand how this could come up — one from the landlord’s side, one from the tenant’s side. First: the landlord has been granted an eviction order against the tenant for non-payment of rent, and the tenant appeals to challenge it. Second: the landlord received an order on maintenance repairs and lost, and appeals because they didn’t like the remedy. Are those two good examples to work from?

How Tenants May Use Appeals to Delay Eviction & Identifying an Error in Law

[00:05:46] Gibrian Malicki-Sanchez: Yeah, we can talk about those. I’d caution landlords that tenants may abuse the right of appeal — in your example, there’s an order for eviction because the tenant hasn’t paid rent for months, and there’s a deadline in the order for them to pay or the order gets filed at the sheriff’s office to schedule the eviction. If the tenant files a notice of appeal to the Divisional Court, the court can put a stay on that LTB order until the appeal is heard, and that process can take many months. If the eviction order hasn’t already been filed at the sheriff’s office before the tenant serves the notice of appeal, then when the sheriff arrives at the scheduled time, they’ll be told there’s a certificate of stay and won’t be able to proceed. There are things we can do about that, which I’ll get into later — but that’s typically not a case where the board made an error in law, it’s just a way for the tenant to buy time.

On the landlord’s side, if you think the board made an error in law, look at the LTB decision — it will have a detailed analysis of the evidence tendered at the hearing, how the board member weighed that evidence against the Residential Tenancies Act and the case law, and the reasons for their decision. If you want to appeal on an error of law, look at those reasons: what sections of the RTA were cited, was the proper legal test used, what case law was referenced, were the legal tests and precedents in those cases followed? If you can tell the law was misapplied, that’s what you raise with the Divisional Court — the law wasn’t applied properly, the right test wasn’t used, and you need it fixed.

[00:08:38] Kevin Breitner: Gotcha, thank you. So the point is that everyone needs to realize it has to be a challenge to a misapplication of the law itself, not just a challenge to the hearing’s result.

[00:08:56] Gibrian Malicki-Sanchez: Yeah, and let’s face it, Kevin, the Residential Tenancies Act isn’t very clear in some situations. For example, you can file an application against a tenant for persistently late payment of rent, but the RTA doesn’t define what constitutes “persistent.” That comes down to the board member’s discretion, and because there’s discretion involved, there’s an opening for someone who doesn’t like the outcome to argue the law was misapplied — “I don’t think they discounted the fact the tenant was late twice; that should be persistent, and the board member didn’t order an eviction on that basis.” You could appeal that to the Divisional Court and ask whether the law was applied properly. A lot of times, when a representative or self-rep argues at an LTB hearing, referencing previous LTB orders is fine, but the real authority is decisions from the Divisional Court that show what’s been considered persistently late payment of rent, for example. It still comes down to the board member’s discretion and the circumstances, but you’ll want to find a case that supports your position and your facts.

Powers of the Divisional Court, Rules of Civil Procedure & the Rent-to-Own Example

[00:10:33] Kevin Breitner: Perfect — that’s the clarification we need, because there are gray areas and discrepancies throughout a lot of this, and that’s where some issues lie.

[00:10:46] Gibrian Malicki-Sanchez: Yeah. Let me talk about what to expect at the Divisional Court and some resources you can look at. The Courts of Justice Act is another statute — Section 134 talks about the powers the Divisional Court or Court of Appeal can exercise on an appeal, and it dovetails with the Residential Tenancies Act: the court may make any order or decision that could have been made by the LTB, order a new hearing, or make any other order or decision it considers just. Just because the Divisional Court finds the board member made a mistake doesn’t mean it goes back to a hearing where all the evidence is re-tested — the Divisional Court can make its own order.

The process people need to follow is set out in the Rules of Civil Procedure, specifically Rule 61, which sets out filing timelines and what documents need to be filed and when. It shouldn’t be overly complicated — the appellant starts it, the respondent has a chance to respond, and there are a few steps along the way, but the timelines matter. If the tenant who hasn’t paid rent files a notice of appeal within the 30 days, that’s fine; if they file after, they’re statute-barred, and you may have to bring a motion to dismiss if the court doesn’t do that automatically. Within 30 days of serving the landlord with the notice of appeal, the appellant has to order a transcript — if they don’t, again, bring a motion to dismiss. Once served, the landlord has 15 days to serve the appellant with a certificate respecting evidence. The notice of appeal sets out the grounds for the appeal, the order being sought, why the law was wrong, and what the correct law should be, along with the authority relied on — that gives the respondent notice of what test they have to meet.

The appellant must perfect their appeal within 60 days of receiving notice that the transcript will be produced, or again, a motion to dismiss is available. To perfect the appeal, they must serve an appeal book and compendium, an exhibit book, the transcript of the evidence, and their factum, which sets out the issues, the case law, and why their position is correct. The respondent then files their own factum and compendium. Typically no new evidence is admitted, since the Divisional Court judge isn’t re-testing the evidence — they want to hear the law and can draw inferences from the evidence already in the decision. But new evidence can come in occasionally. In one case I was involved in, a tenant had a rent-to-own contract and was suing the landlord in Superior Court for breach of that contract because the landlord wasn’t going to sell. The landlord then served an N12 to move in and brought it to the LTB, and was successful. The tenant appealed, arguing the LTB didn’t have jurisdiction because the matter was already before the Superior Court — so evidence from that Superior Court proceeding that was relevant to determining the issue could also be brought into the appeal.

[00:16:50] Kevin Breitner: Since you’re saying that — wouldn’t the agreement of purchase and sale that the rent-to-own contract was based on take priority over the LTB using an N12 form, since the landlord had technically already agreed to sell?

[00:17:13] Gibrian Malicki-Sanchez: As we always say on this podcast, every situation is different and you should get your own legal advice. In this particular case, there were allegations that the contract was fraudulently signed and wasn’t in effect or enforceable — so since there was no valid contract to purchase, that was irrelevant. All that mattered was that there was a landlord-tenant relationship, which is why the LTB had jurisdiction.

[00:17:40] Kevin Breitner: Gotcha, you’re right — everything we’re talking about is in generalities, folks, nothing here is specific advice. If you need guidance, Gibrian’s contact information will be in the show notes and bios, along with the documentation he’s referring to, in our resources. So don’t worry — don’t do this yourself, talk to Gibrian, and let’s keep moving.

Resources, Case Management & Dismissing Frivolous Appeals (Rule 2.1.01)

[00:18:10] Gibrian Malicki-Sanchez: There are some good resources for people to refer to. In addition to the rules, you should look at the practice directions for the Ontario courts — we can post a link to that, which tells you where and how to file and how to name documents, useful if you’re doing this yourself or checking that your representative is doing it properly. There are also resources for self-reps that set out the steps in an appeal and the kinds of documents to use. If you’re wondering how to request a hearing recording, there’s a Request for a Hearing Recording form we can post — the appellant requests and pays for it, not the respondent landlord — and there’s a link to request a certified transcriptionist to convert that recording into a transcript.

Let me give a view of how a case could work when a tenant who hasn’t paid rent is trying to delay. Typically, directions are sent to both parties by a Divisional Court judge stating what has to be done — the parties can agree on their own timelines for exchanging documents, the tenant would be expected to pay the arrears into court or a lawyer’s trust account, since the Divisional Court wants to balance the prejudice to both parties — it’s not fair for the tenant to keep occupying the unit while the landlord foots the bill, so paying money into court or trust balances that. There would also be a case management conference, where both parties go before a judge to confirm they’re complying with the timelines and the matter is moving toward a hearing. If the tenant isn’t paying into court or people aren’t following timelines, the judge can put things back on track.

Now, if at first instance you realize there’s really no argument over an error of law and this appears to be a frivolous appeal or an abuse of the court process, Rule 2.1.01 of the Rules of Civil Procedure says the court may make an order staying or dismissing a proceeding that appears on its face to be frivolous, vexatious, or otherwise an abuse of process. The respondent landlord can file a requisition to the court setting that out, the appellant gets a chance to respond, and the judge makes a decision — this is different from a motion, since it’s not as formal, there are no oral submissions, and it’s reviewed in chambers. You could stop the appeal in its tracks right there, which is an important, cost-saving shortcut.

[00:23:01] Kevin Breitner: Generally, from what I’ve come across — and correct me if I’m wrong — whenever there’s an argument or discrepancy between landlord and tenant, if a tenant is holding back rent for months over something they think should have been done, they’re usually holding back way more than the amount they’re actually disputing, by thousands of dollars. There’s no reason anyone should live for free — that’s the way I’d put it. Even the LTB and the legal system look at a tenant who’s up to date on rent but fighting for money back differently than a tenant who’s thousands of dollars or months in arrears while fighting over a fraction of what they actually owe.

[00:24:05] Gibrian Malicki-Sanchez: Yeah, in that specific situation there are a lot of red flags — we’d rely on that rule about requisitioning a dismissal or stay, which, if you lift the stay on the eviction order, lets you proceed. But the judge would still have to weigh the prejudice to the tenant. There isn’t always about eviction — other kinds of orders can be stayed or have the stay lifted using this process too.

Why Professional Legal Guidance Matters

[00:24:43] Kevin Breitner: Like everything, it can go this way or that way, and there are variables to everything — every situation is specific and unto its own. Make sure you’re at least getting legal guidance. If you’re going to do it yourself, hey, plenty of people choose that route — get all the information you can, cross your T’s and dot your I’s, and follow the forms Gibrian just mentioned. We’ll post about how to do it properly, because I know with the LTB, if you miss an address by a little, you’re getting thrown out — it’ll likely be the same here. This is a business expense, and professional advice, I think, costs you less time and money than going at it yourself. I always think getting the guidance of professionals is the best thing to do, even when it costs money out of pocket, rather than trying to do it yourself — I think judges look at it differently when you have representation versus when you’re on your own, though that’s just my personal opinion. As we discussed off camera, this is a topic that doesn’t normally get talked about online, and there isn’t much information out there. So if you’ve learned from this or have more questions, let us know — we can dive into it more. Gibrian’s just a phone call or a click away, so you can get information directly from him. Like always, I learned something today, and I hope you did too. Any last words?

[00:26:19] Gibrian Malicki-Sanchez: Yeah, it’s always good to get legal advice, because there are different ways of getting the results you want. Lawyers are very attuned to keeping the parties in check, and if anybody slips up, you’ll want to take advantage of that for your clients’ benefit. I work at Malicki Sanchez Law — you have my contact information in the show notes. If you have any questions, get legal advice catered specifically to your situation, and I hope this information was useful. We can get into any of these areas a lot more. Kevin, thank you for letting me share with your audience.

Outro and Closing Thoughts

[00:27:01] Kevin Breitner: As always, thanks for sharing your expertise and wisdom. Gibrian isn’t just a lawyer, he’s also an investor, and we’ve talked about him before — we’re going to bring him back to talk about getting properties in the United States, so for our Ontario landlords who want to diversify and go a bit south of the border, we can cover that on another episode. As always, thank you so much for joining us, Gibrian — I appreciate it, and we’ll see you again next time. Bye for now.

[00:27:29] Gibrian Malicki-Sanchez: Thank you, Kevin.

[00:27:31] Kevin Breitner: Please remember, while we are professionals, this podcast is for informational and entertainment purposes only. The advice shared may not apply to your unique situation. Always seek personalized advice from a qualified professional before making any investment decisions.