Procedural Fairness in LTB Reviews: Stenka v. Garten, 2023 ONSC 6120
Divisional Court overturns LTB eviction order due to procedural unfairness in review process
Summarized by RentZenLast updated: August 16, 2024
Case Summary
Decision in favor of
tenant
Balance Owed
-
Dispute Categories
Agree with the ruling?
Timeline
Hearing Date
Oct 2023
Order Date
Oct 30, 2023
Dispute Summary
The Landlord filed an application to evict Tenant as an unauthorized occupant after the original tenant moved out. The Landlord and Tenant Board (LTB) initially denied the eviction, but on review ordered the Tenant to vacate. The Tenant appealed the review decision to the Divisional Court.
Determinations
- The LTB review process was procedurally unfair
- The Member failed to properly determine if there was a serious error before conducting a de novo hearing
- The Member improperly refused to allow cross-examination on a key issue
- The appeal is granted and the matter is remitted back to the LTB for a new review hearing
Case Study
The court found that the LTB review process was procedurally unfair. The Member failed to properly determine if there was a serious error in the initial decision before conducting a de novo hearing. The Member also improperly refused to allow cross-examination on a key issue that was later used as a basis for finding a serious error.
Arguments and Actions
Landlord
Arguments
Landlord argued that Tenant was an unauthorized occupant who should be evicted, and that denying eviction would effectively create a tenancy agreement against the Landlord's wishes.
Actions
Landlord made an agreement with the original tenant to pay $18,000 for vacant possession of the unit. Landlord claimed to have contracts to renovate the unit that were prevented by Tenant's continued occupancy.
Tenant
Arguments
Tenant argued that the LTB review process was procedurally unfair and that he should be allowed to remain in the unit due to his long-term occupancy.
Actions
Tenant had lived in the apartment building for 30 years, initially with his wife who was the superintendent. After his wife moved out in 2010, Tenant moved into a different unit with another tenant and paid half the rent for 9 years. When the other tenant moved out in 2020, Tenant began paying full rent.
Decision Summary
The Divisional Court granted the Tenant's appeal of the LTB review decision. The court found that the LTB review process was procedurally unfair because the Member failed to properly determine if there was a serious error in the initial decision before conducting a de novo hearing, and improperly refused to allow cross-examination on a key issue. The matter was remitted back to the LTB for a new review hearing before a different member.
Adjudicator Details
Divisional Court
Total Orders
7
Landlord Favorable
57.1%
Tenant Favorable
14.3%
Mutual Agreement
28.6%
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