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If the Ontario Landlord and Tenant Board (LTB) rules against you, you can accept the ruling, request a review of the order by another member of the LTB, or appeal to the Divisional Court. In this article, we’re going to tell you everything you need to know about the third option: LTB appeals to the Divisional Court.
What is an LTB Appeal to the Divisional Court?
The Divisional Court is a branch of the Ontario Superior Court of Justice. It has statutory power to reverse or change an LTB decision, or order the LTB to retry a case.
The party seeking appeal, also known as the appellant or applicant, must file the appeal by submitting certain prescribed documents (detailed below) to the Divisional Court within thirty (30) days of receiving the LTB order being appealed. Under some circumstances, parties can get the court to extend this time limit.
Appellants do not have to apply for a review of an order by the LTB first: they can appeal directly to the Divisional Court following issuance. However, if one does request an LTB review of an order first, and it is unsuccessful, appeal to the Divisional Court is still an appeal of the original LTB ruling, not an appeal of the review order.
On What Grounds Can One Appeal an LTB Order?
A critical thing for potential appellants to understand is that an appeal to Divisional Court is not Round Two of your case. It is solely an opportunity to ask the Court to review the original decision and its outcome with respect to two specific considerations:
Question of Law: Section 210(1) of the Residential Tenancies Act states that “[a]ny 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” (emphasis added). This provision allows the Divisional Court to review an order to determine whether the LTB simply failed to appropriately apply the law in the case under review.
Procedural Fairness: Procedural fairness is an element of administrative law grounded in Canadian constitutional principles (see Baker v. Canada). Accordingly, the Divisional Court can review decisions on procedural fairness grounds, even though it is not expressly permitted by the RTA. Procedural fairness encompasses, among other things, the right to be heard and have one’s case decided by an impartial decision maker. It notably, however, does not encompass a guaranteed right to have a hearing adjourned due to a party’s failure to prepare for it or obtain legal representation.
Conversely, the Divisional Court does not review cases on the grounds of reasonableness or misinterpretation of facts. It also will not typically permit the admission of new evidence to support an appellant’s case. However, there can be certain narrow exceptions to these general rules.
How Does One Initiate an Appeal to the Divisional Court?
Appellants can start 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 forms (specifically the Notice of Appeal) must then be served on the other party (or parties) personally. Often, this is done using a process server, who then also completes the Affidavit of Service (Form 16B), though use of a process server is not required. Beyond the Notice of Appeal, which is the “originating” document, other documents pertaining to a Divisional Court matter can generally be served by email.
All these forms (including the Affidavit of Service) must then be filed with your local court in person, or through Justice Services Ontario for which one must have a My Ontario account. Templates for all the forms mentioned above are available on the Court Forms page.
Guidance on how to start and conduct an appeal is available on this government page, though the online instructions are often extremely confusing and sometimes just plain wrong or outdated.
Can Paralegals Represent Clients in Appealing an LTB Order to Divisional Court?
No. You may represent yourself, or you may hire a lawyer to represent you, but paralegals are not allowed to take on Divisional Court work unless working under the direct supervision of a lawyer (in which case, the client should be signing a retainer or engagement agreement with the lawyer, not the paralegal).
If a paralegal offers to help you represent yourself before Divisional Court – for example, to fill out and put together the required documents, review your evidence, or advise you - they would be misleading you into paying them for work they are not qualified or allowed to do.
Does Green Economy Law Represent Clients in Divisional Court Matters?
Yes, Green Economy Law handles Divisional Court appeals of LTB orders, provided we regard the applicable case as meritorious and bearing a reasonable likelihood of success.
How Much Do Appeals to Divisional Court Cost?
Divisional Court work will be performed by our firm’s personnel at applicable hourly rates. Because these cases are long and complex, it is extremely difficult for the firm to provide an accurate estimate of overall costs.
However, we do offer a $400 (plus tax) flat fee LTB Appeal Review and Advisory Opinion package. This package includes full review by the firm of a potential client’s case, up to the stage of appeal (or contemplated appeal). It allows us to understand and advise as to whether it is in the interest of both the firm and the potential client to move forward with representation.
The firm requires potential clients to make use of this package before we can commit to a case, to ensure that (a) it is ethical for the firm to take on the matter; and (b) potential clients do not expend thousands of dollars for our firm to work on an appeal without any reasonable chance of success.
More details regarding our housing work and the LTB Appeal Review and Advisory Opinion package can be found on our housing practice page. 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.