What is Judicial Review of an LTB Decision?
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In March 2024, the Supreme Court of Canada confirmed that parties can challenge an Ontario tribunal's decision through judicial review, not just by appealing to Divisional Court. In doing so, the Court effectively opened up an entire new means of challenging unfavourable Landlord and Tenant Board (LTB) decisions.
Below, we explain what judicial review is, how it differs from appeal to Divisional Court, and compare the pros and cons of each option.
What is Judicial Review?
Judicial review is a process whereby a higher court examines the decision of a tribunal, such as the LTB, to ensure it was made fairly, reasonably, and within the tribunal’s legal powers.
In the recent case of Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court of Canada affirmed that parties have a constitutional right to seek judicial review of tribunal decisions (like those of the LTB) notwithstanding provincial or federal efforts to limit appeal or review by legislative means. In other words, because constitutional law trumps statutory law, even if governments try to limit appeals or reviews by statute, those efforts will be unenforceable to the extent that a party wants to subject a tribunal decision to judicial review.
What’s the Difference Between Appeal and Judicial Review?
A party seeking to challenge an unfavourable LTB ruling has traditionally had two options: internal review within the LTB or appeal to the Divisional Court. We have previously written about both options and the difference between them here. Below, we summarize the differences between both of them, as well as judicial review:
LTB Review: This allows a decision to be reviewed and potentially overturned on the basis of various legal grounds, currently more or less unlimited. Some grounds are outlined in the LTB’s own Guideline 8, though its list is not exhaustive. However, the LTB is somewhat inclined to protect its own decisions, which can put those requesting review at a slight disadvantage.
Divisional Court Appeal: Pursuant to s. 210 of the Residential Tenancies Act (RTA), the Divisional Court can review LTB decisions “only on a question of law.” As a matter of constitutional law, however, the Divisional Court also retains authority to review decisions of the LTB on the basis of procedural fairness.
Judicial Review: Issues, including those of mixed law and fact, may be examined on a “reasonableness” standard. This may also encompass the overall fairness of the decision.
What Happens if I Win a Judicial Review Hearing?
If you win a judicial review, the Court can “change or set aside” the decision being challenged. Often the matter will be sent back to the LTB for a new hearing with instructions from the Court.
How Do I File for Judicial Review of an LTB Order?
Judicial review of an LTB decision may be commenced by filing a “Notice of Application for Judicial Review” (Form 68A) with the Divisional Court. The Court will then ‘issue’ a stamped Notice of Application, which must be served on the Attorney General of Ontario, the LTB, and all parties who participated in the original hearing. Then one must file proof of service with the Court.
How Long Do I have to File for Judicial Review?
Judicial review must be sought within thirty (30) days of the challenged decision’s issuance. However, courts have discretion to extend this deadline “if there are apparent grounds for relief and no substantial prejudice will occur to any person.”
Will Filing for Judicial Review Stay the LTB Order?
According to the official Guide to Judicial Review in Divisional Court, there is no automatic stay of a lower decision upon filing for Judicial Review, as there is in the case of appeal. Rather, one must bring a motion for stay.
Can I Both Appeal and Seek Judicial Review?
The answer to this question remains unclear at this time. The Supreme Court in Yatar indicated that pursuing both paths in parallel could be acceptable; pursuing statutory appeal does not force you to abandon judicial review for other issues. However, it’s important to consider the added complexity of the judicial review path, and the potential additional cost of pursuing both options simultaneously.
Should I Ask for a Judicial Review of my LTB Order?
The ability to seek judicial review of LTB decisions is a new and important tool for landlords and tenants alike. If you sincerely believe the LTB’s decision was unreasonable, or your only hope of success is to ground you argument in a question of mixed law and fact, or fairness, judicial review may be your best option after you have exhausted internal LTB review. However, the path of judicial review is complex and not yet as legally well-defined as the options of review and appeal. As such, navigating it may be more difficult and unpredictable.
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