Procedural Fairness in High-Volume Tribunals: How Not to Do It

Two recent examples, both from the landlord and tenant context, of how not to run a fair hearing.

In Abara v. Hall and Lee, 2022 ONSC 7093, a landlord successfully obtained an order terminating a tenancy but received no compensation: the Landlord and Tenant Board found that the tenants had vacated the property and that it had no jurisdiction to order compensation. The landlord requested a reconsideration, but the reviewing member determined that there was no serious error justifying setting aside the original decision. In part, this was because the landlord would have to bring a separate application for compensation (see para. 34). However, the date of vacation fixed by the Board would be critically important in the determination of the separate application. But the Board had allocated only 15 minutes for an oral hearing, which was insufficient to thoroughly ventilate the critical issue of the date at which the property had been vacated by the tenants:

The transcript of the hearing shows the Member did not provide the appellant with the opportunity to put forth his full argument specifically dealing with the date of termination, which would have an impact on the request for compensation even though that needed to be addressed in a different process. The hearing lasted no more than 3-5 minutes. The appellant was interrupted numerous times. Without permitting any submissions from the appellant on termination date, the Member determined that the termination date was September 15, 2021.  Although no compensation was available in that specific application, the date may have an impact on the entitlement to compensation through other processes.

…

The appellant, in my view, was entitled to a fair opportunity to make submissions about the date of termination and was not provided that opportunity.  I do recognize that the LTB is a high-volume tribunal. But for the LTB to conclude on a significant finding—the termination date of the lease—without providing the appellant with the opportunity to address that issue, was, in the circumstances of this case, a breach of procedural fairness (at paras. 33, 37).

The message from the Divisional Court is that when running a hearing, the adjudicator should make sure to permit the parties to thoroughly ventilate the issues. That the adjudicator has a dozen other hearings to get through on the same day will be no defence on appeal.

Two other aspects of this case are striking. First, notice that the landlord was entitled to be treated fairly in respect of the date issue not because this had an impact on the decision the Board was making, but because of the downstream consequences of the Board’s decision. This is reminiscent of the UK case of Pathan [2020] UKSC 41 (noted here), where downstream consequences were similarly held to trigger fairness obligations. Second, notice that the Board normally hears such matters in writing (see para. 13). Had the Board refused to hold an oral hearing at all, would the landlord have been able to appeal on procedural fairness grounds? Perhaps the answer is that an appeal would have been possible, if the landlord could demonstrate that the Board was insufficiently attentive to downstream consequences. Due to the holding of an oral hearing, the transcript made that point very clearly. Correspondence between the Board and the landlord might not have been as persuasive (or even admissible).

The second case is Fiddler v. Provost, 2022 SKKB 263. Meschishnick J set out the facts clearly and concisely:

In this case the Landlord applied for an Order for Possession of a premises that had been rented to the Tenant. The Tenant disputed the application, and a hearing was scheduled for 11:30 a.m. on October 12, 2022, by telephone. The Tenant provided a telephone number to be called at when the hearing convened.

The Hearing Officer made several unsuccessful attempts to contact the Tenant at the number provided and on the first attempt left a voicemail message advising that the Tenant needed to answer the telephone call if he wished to take part in the hearing and that if he did not the hearing would proceed without him. After five attempts to call the Tenant over the course of 30 minutes the Hearing Officer proceeded in the Tenant’s absence and by written decision issued October 14, 2022, 2022 SKORT 2783, ordered that the Landlord be given possession of the rental unit. The Hearing Officer directed that a Writ of Possession be issued for execution effective October 24, 2022.

Before the Hearing Officer rendered a decision on the Landlord’s application the Tenant had applied for a rehearing of the application. In the application for a rehearing the Tenant said that he had been by his phone between 11:00 a.m. and 12:30 p.m. on October 12 and only received one call from the Hearing Officer that went to his voicemail. He acknowledged that he had discovered by 1:43 p.m., the time he sent the email requesting the rehearing, that his phone had been set by default to block private phone numbers which explained why the calls from the Hearing Officer did not come through to him.

On these facts it is entirely unsurprising that the appeal was allowed.

Interestingly, Meschishnick J held that the mere fact of proceeding in the tenant’s absence was a breach of the duty of fairness. The Office of Residential Tenancies has a warning about blocked numbers on its website (see para. 19). But this was insufficient:

Courts and administrative tribunals demand that notice of a proceeding is brought to the attention of a party affected by the proceeding. They demand proof that notice of the proceeding has come to the attention of the parties affected. Yet, Hearing Officers are prepared to proceed with a hearing in the absence of a party without knowing if it has come to the attention of a party that it must receive a call from a private number. Simply posting a “warning” on a website does not ensure, as in this case, that the “warning” has come to the attention of parties to a hearing conducted by telephone. And, even if it did, it does not ensure that a party would even know of phone settings that block calls or how to change those settings (at para. 34).

Indeed, Meschishnick J held that the process of ‘calling out’ to parties carries risks which, if they materialize, make the process inherently unfair:

This is especially so when the problem, particularly with calls from private numbers being blocked, can easily be solved. Using a call-in system might be one solution. If using a call out system consideration should be given to ENSURING the party is aware of phone settings that may prevent them from receiving a call from the call out number and ENSURING the party is capable of checking those settings and changing them if a change is required. Perhaps providing to the party the actual number the call will be coming from would also be of assistance so a party would not have to unblock all unknown numbers. Whatever system is employed it must ensure that parties who want to participate will be given a reasonable opportunity to participate. Calling from a private number that is unknowingly blocked by a setting on the phone of a participant who was ready to receive the call does not provide a reasonable opportunity to participate (at paras. 37-38).

Decision-makers can use a ‘call out’ system but, if they do so, they cannot proceed in the absence of a party, unless they have ensured that the party is fully aware of the risk that their cell phone will refuse to take a call from the decision-maker (at para. 39). The upshot is that decision-makers are faced with an unattractive choice: incur the costs of setting up a ‘call in’ system or incur the costs of ensuring that parties are properly set up for a ‘call out’ system. As in the Ontario case, fairness trumps expediency.

The message from these cases is that where courts are faced with economically efficient procedures that do not provide procedural fairness, they will have little sympathy for the decision-makers.

This content has been updated on January 9, 2023 at 17:46.