What is the Difference Between LTB Review vs. Divisional Court Appeal?
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Ontario landlords and tenants alike may challenge Landlord and Tenant Board (“LTB”) orders they are party to if they disagree with them. There are two ways to do so: internal LTB review and appeal to the Divisional Court. In this article, our lawyers provide a comprehensive breakdown of each option, highlighting the differences between them, and explaining the pros and cons of each.
What is Review of an LTB Order?
A request for review of an LTB order is made directly to the LTB. The request must concern a final order, or an interim order which makes a final decision about a party's rights, such as an interim order that terminates a tenancy.
Any party to an order, and any third party whose interests are directly impacted by an order, may request that the LTB review it. Each party, however, may only file one request for review.
If a party is unhappy with the result of the request to review, they cannot simply ask for another. Though if a request for review is granted and a new hearing ordered, if a party is unhappy with the outcome of the second hearing, the LTB has authority to grant an exception to the general rule stating that the same party cannot request a second review in the same matter.
One may request review of an LTB order if:
They were a party to the order and were not reasonably able to participate in the hearing;
The order contains a serious error; or
New evidence that was not available at the original hearing and could change the outcome is now available.
The LTB may then grant the review or deny it. It is ultimately a matter of the LTB’s discretion and not an automatic right.
Per LTB’s Guideline 8, a “serious error” may include:
An error of jurisdiction.
A procedural error which raises issues of natural justice (aka procedural fairness).
An unreasonable finding of fact on a material issue which would potentially change the result of the order.
New evidence unavailable at the time of the hearing comes to light which is potentially determinative of one or more central issues in dispute.
An error in law.
An unreasonable exercise of discretion.
Note that an LTB review hearing is not an opportunity to change the way a case was originally presented. It is not “round 2” of a hearing. Simply disagreeing with the outcome of an LTB proceeding is not sufficient for the LTB to grant a review.
How to File a Request for Review of an LTB Order
Anyone wishing to request review of an LTB order must file the request within 30 days of the date the order was issued using the LTB’s Request to Review an Order form, available here. The 30-day deadline can be extended under certain circumstances. It must be requested using this form, which also contains more information about LTB deadline extensions.
The current version of the form overcomplicates payment options. We suggest paying by credit card here and then writing the receipt number on the form, and submitting the receipt as part of the same PDF file as the review form.
The completed form should be uploaded to the LTB portal file for the matter. In urgent cases, one may also want to email it to the LTB, noting in the email’s subject line that the matter is “urgent”.
What Happens After Filing a Request for Review of an LTB Order?
If the request is approved, the LTB will issue an order stating that a review hearing will be scheduled.
At a review hearing, a party must argue why the original order should be overturned. If the adjudicator is persuaded, then a new hearing will be scheduled either immediately or at a later date. Though the LTB instructs parties to be ready to proceed immediately to a new hearing if the original order is overturned, usually (though not always) the new hearing will take place at a later date.
If the request to review is denied - either with or without a hearing - the LTB will issue an order explaining why the request was denied. A second request to review the same order is not an option. The original order will stand and remain enforceable.
What is Appeal to Divisional Court?
Per Section 210(1) of the Residential Tenancies Act (“RTA”), “[a]ny person affected by an order of the Board may appeal the order to the Divisional Court, but only on “a question of law”. The Divisional Court’s role in an appeal of an LTB decision, in other words, is solely to determine whether the LTB made an error in applying the law.
Notwithstanding the foregoing limitation, the Divisional Court may also intervene is where procedural fairness has been violated. Procedural fairness is an element of administrative law rooted in constitutional law (see Baker v. Canada), which cannot be overridden or excluded by statute.
The Divisional Court will not re-evaluate the reasonableness of an LTB decision or reassess factual findings. It also generally will not allow new evidence on appeal.
How to File an Appeal an LTB Order to Divisional Court
An appellant may commence an appeal to Divisional Court by filling out a Notice of Appeal (Form 61A.1) and an Appellant’s Certificate Respecting Evidence (Form 61C). These documents must be filed within 30 days from the date the order in question was issued.
The Notice of Appeal, which is the “originating” document, must then be served on the other party (or parties) personally. The other documents pertaining to the Divisional Court appeal can generally be served by email. Next, the forms must be filed with one’s local court in person, or through Justice Services Ontario (for which one must have a My Ontario account).
See our post titled “How to Appeal an LTB Order to Divisional Court” for more information on this subject.
What Happens After Filing an Appeal with the Divisional Court?
If you’re the party seeking a ‘stay’ of the LTB order’s enforcement, you should ensure you obtain a Certificate of Stay, which can be used to prevent the other party from enforcing an eviction or monetary claim.
Then you should (a) attempt to establish a timeline with the opposing party for service and filing of all appeal documents; and (b) schedule a case conference with the court so that it can establish the timeline, include a hearing date for the matter.
Should I file for Review or Appeal of an LTB order?
The short answer is one should always first file for internal review. If that fails, consider appeal to Divisional Court.
And per the decision in Daly v. 1916800 Ontario Ltd., 2019 ONSC 6319, where a party has requested review by the LTB, the 30 day time limit to appeal to Divisional Court will be calculated from the date of the review order’s issuance, not the original order’s issuance.
The Benefits of LTB Review
The LTB has far greater leeway to overturn its own orders than the Divisional Court. It can find “serious error” in an order for numerous different reasons, including material mistakes of fact and failure of an adjudicator to provide sufficient reasons for their decisions. As such, one has a greater chance of getting an order overturned at this stage as compared to appeal to Divisional Court.
The LTB review process is also faster, less procedural onerous, and it can be completed with a paralegal or a lawyer. And if one acted without legal counsel at the initial stage of an LTB matter for which they are seeking review, they may wish to seek legal counsel when pursuing the review to potentially increase their chances of success.
The Difficulties of Appeal to Divisional Court
As compared with the numerous grounds upon which the LTB can review and overturn an order internally, the Divisional Court’s ability is considerably more limited for the reasons explained above and in our post titled “How to Appeal an LTB Order to Divisional Court”.
We often encounter parties who want to appeal an order due to alleged mistakes of fact or an unreasonable exercise of discretion on the part of an LTB adjudicator. We sadly tell them that these are not grounds upon which the Divisional Court has jurisdiction to overturn an LTB order. As such, the chances of an order being overturned on appeal are low as compared to internal LTB review.
Appeal to Divisional Court is also a longer, more procedurally onerous, and (in most cases) more costly process. Paralegals are not permitted to act in these cases before Divisional Court; only licensed lawyers. Any paralegal offering to assist with a Divisional Court appeal is violating applicable professionalism rules.
Assistance with LTB Reviews and Divisional Court Appeals
Our firm’s lawyers handle both LTB reviews and Divisional Court appeals of LTB orders, provided we regard the applicable case as meritorious and bearing a reasonable likelihood of success. Our pricing options for this are outline here.
And if you’re interested in booking a 15 minute free or 60 minute paid consultation with the firm to discuss engagement, you can do so using the button below.
