CITATION: Smith v. Japra, 2026 ONSC 4281
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Brian Smith and Tracey Pierce
Self-represented
Appellants
AND
Harkamal Japra and Sukhvir Japra
Respondents
Self-represented
HEARD: July 9, 2026 (virtually)
JUSTICE E. TEN CATE
REASONS FOR DECISION
1The appellants, Brian Smith and Tracey Pierce, appeal pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 ("RTA") from a decision of the Landlord and Tenant Board ("LTB") dismissing their request for review of an order issued on the respondents' L10 application.
2The appeal raises a single question of law: whether the review member erred in concluding that the appellants were not denied procedural fairness despite their evidence that they did not receive notice of the hearing.
3For reasons that follow, the appeal is allowed. The review member misapprehended the legal requirements of notice and improperly shifted responsibility for receiving notice from the LTB to the appellants. In doing so, the review member committed an error of law.
Background
4The appellants were tenants of the respondents for approximately four years. The tenancy ended in August 2023.
5In June 2024, the respondents commenced an L10 application seeking compensation arising from alleged damage and repair costs. The appellants received the application and were aware of the existence of the proceeding. The appellants’ correct email address was contained in the application. On June 24, 2024, the appellants logged into the LTB’s portal, after receiving the L10 application, to determine what the respondents had uploaded.
6The appellants maintain that they never received notice of hearing. They deny receiving any covering letter or notice advising of the date, time, or manner of the hearing.
7The hearing proceeded in the appellants' absence. Neither the respondents nor the LTB attempted to contact them on the hearing day to ascertain why they did not attend. The LTB issued an order on August 20, 2025, awarding the respondents the entire amount claimed -- $12,349.03.
8On July 24, 2025, the appellants logged onto the LTB’s portal to determine if the L10 had been withdrawn as no notice of hearing had been received. They also checked their email.
9On September 16, 2025, the appellants sought a review under s. 209 of the RTA, asserting that they had not been reasonably able to participate because they had not received notice.
10The review member accepted that the appellants' evidence was credible and further noted that the LTB itself had not emailed a notice of hearing to the appellants. The review member also accepted that mistakes occur, and that it was possible the notice had not been enclosed with the materials served by the respondents.
11Despite those findings, the review request was dismissed. The review member concluded that the appellants "should or ought to have known" of the hearing and that they failed to exercise due diligence by not checking the LTB portal or otherwise making inquiries concerning the status of the proceeding.
Issue
12Did the review member commit an error of law by concluding that the appellants were reasonably able to participate in the proceeding notwithstanding the absence of notice of the hearing?
Analysis
A. Procedural Fairness and the Right to Notice
13Whether a party has been denied procedural fairness is a question of law and is therefore within this court's jurisdiction on appeal: Shapiro v. Swingler, 2021 ONSC 6191, at para. 25. The correctness standard applies on a question of law: Reid v. Shewen, 2025 ONSC 4196 (Div. Ct.) at para. 43.
14This court is tasked with evaluating whether the rules of procedural fairness were adhered to by assessing the circumstances giving rise to the allegation they were not, and by determining what procedures and safeguards were required to comply with the duty to act fairly: Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658 (Div. Ct.) at para. 15, quoting London (City) v. Ayerswood Development Corp. 2002 Can LII 3225 (ON CA) at para. 10.
15Section 6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 ("SPPA") provides that a party to a proceeding shall be given reasonable notice of the hearing. Section 6(3) requires that the notice specify the time, place, and purpose of the hearing. The statutory obligation is fundamental to the right to be heard.
16Equally, Rule 5.1 of the LTB's Rules contemplates that a notice of hearing will be served on parties by the LTB via email. While Rule 5.2 allows the LTB to direct that service be effected by another party in certain circumstances, there is no evidence that any such direction was made in the present case, and the Rules do not require that the parties access the LTB’s online portal to obtain the notice of hearing.
17It is common ground that the LTB did not email a notice of hearing to the appellants. The review member expressly acknowledged that fact. The review member further accepted that it was possible the notice was not enclosed within the package served by the respondents.
18Significantly, the review member did not find that the notice of hearing had in fact been received by the appellants and there is no evidence supporting the conclusion that the tenants knew the hearing was scheduled by checking the online portal. The review member noted the LTB’s file confirmed they logged into the portal on June 24, 2024, but there was no indication they logged on again after the notice was posted, prior to the hearing.
B. The Applicable Jurisprudence
19The governing legal principles are well established. Section 209(2) of the RTA provides the LTB with the power to review a decision or order “if a party to the proceeding was not reasonably able to participate”.
20In Abdalla et al. v. Koirala, 2023 ONSC 7106 (Div. Ct.) at para. 17 this court held that the phrase "not reasonably able to participate" in s. 209(2) of the RTA must be interpreted broadly to ensure natural justice. Where a party demonstrates an intention to participate in a hearing but is prevented from doing so, the party should ordinarily be afforded relief through the review process.
21The court in Abdalla (at paras. 18 and 19) further distinguished those circumstances from cases involving a genuine lack of diligence. A party who simply ignores a proceeding cannot invoke procedural fairness to obtain a second hearing. However, where participation is prevented by circumstances beyond the party's control, the review provisions exist to protect the integrity of the process.
22The appellants rely on King-Winton v. Doverhold Investments Ltd., , at para. 3, wherein the three-member panel of the Divisional Court emphasized that natural justice requires that a party who intended to participate but was prevented from doing so be afforded a meaningful opportunity to be heard. As noted by the panel, “natural justice requires no less”. In that case, the court held that even when a tenant received proper notice of the hearing, but made a mistake about the hearing date, a new hearing should be ordered.
23In Timbercreek Asset Management Inc. v. Soufi, 2024 ONSC 4041 (Div. Ct.) the appellant tenant failed to attend two hearings and an eviction order was made in his absence. There was no dispute that the notice was sent. This court set aside the reconsideration order and remitted the matter back to the LTB before a different panel, and held the tenant provided a reasonable explanation for not attending – he didn’t understand it. His disability and the impact an eviction would have on him warranted the application of a broad interpretation of the “not reasonably able to participate” test. Timbercreek emphasizes that a party has a fundamental right to participate in a hearing.
24In Zalzman v. Kim, 2022 ONSC 1842 (Div. Ct.) the tenant attended a hearing which was adjourned. The court held that while notice of the next hearing was mailed to the tenant by the LTB, there was “no positive evidence” it was received other than the mail was not returned. The tenant was not faulted for failing to contact the LTB to determine the new date.
25This court’s decision in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) is oft cited in cases involving orders made where the opposing party did not appear. That case involved a landlord against whom a rent abatement order was made. The LTB’s file indicated that the notice was sent to the landlord’s head office, but the landlord claimed it did not receive notice. The review member found the evidence was more consistent with a lack of due diligence on the part of the landlord’s staff. Although the appeal was dismissed, the court did not suggest it was incumbent upon the landlord to search the portal, or contact the LTB, to ascertain the hearing date.
26These authorities’ direct attention to a practical question: was the party reasonably able to participate in the hearing that occurred? The inquiry is not whether, in hindsight, additional investigative steps by a party might have been taken.
C. The Review Member's Error of Law
27In the present case, the review member accepted that the appellants' evidence regarding non-receipt of the notice of hearing was credible. The review member also accepted that the LTB itself had not emailed the notice and that it was possible the notice had never been enclosed with the respondents' service package. Those findings should have directed the analysis toward whether the appellants were reasonably able to participate in the hearing.
28Instead, the review member concluded that the appellants should have monitored the LTB portal or contacted the LTB to determine whether a hearing had been scheduled.
29In my view, that conclusion cannot be reconciled with the statutory scheme or the jurisprudence. Neither the SPPA, the RTA, nor the LTB's Rules impose a legal obligation on parties to continuously monitor the LTB portal in anticipation of a possible failure of notice. Nothing in the governing legislation shifts responsibility for notice from the LTB to the recipient. No supporting jurisprudence for the decision was cited in the decision; the review member effectively transformed a statutory entitlement to receive notice into an obligation to search for notice.
30That approach improperly conflates notice of the existence of a proceeding with notice of the hearing itself. A party may know that an application was commenced without knowing when, where, or how that application will be adjudicated.
31The distinction is critical. Section 6 of the SPPA guarantees reasonable notice of the hearing, not merely awareness that litigation exists.
32The review member's reasoning effectively imposed a form of constructive notice. Under that approach, a party who never receives a notice of hearing may nevertheless be deprived of a hearing because the party failed to discover independently that one had been scheduled. Such an approach undermines the protections guaranteed by the SPPA and is inconsistent with the broad interpretation of participation rights mandated by Abdalla.
33Moreover, the review member’s apparent reliance on the fact that one of the appellants is a lawyer is misguided – there is no sliding scale of notice determined by a party’s profession or level of education.
D. The Appellants Demonstrated an Intention to Participate
34The evidence before the review member demonstrated a clear intention on the part of the appellants to participate in the proceeding. The appellants uploaded extensive documentary evidence, videos, and written submissions addressing the merits of the respondents' claim.
35Like the tenant in Zaltzman, their conduct was wholly inconsistent with a deliberate decision to ignore the proceeding. As the appellants submitted, it makes little sense that parties would expend considerable effort preparing a defence only to intentionally absent themselves from the hearing at which that defence was to be advanced.
36The review member's own findings support the conclusion that the appellants intended to participate but were prevented from doing so because they lacked notice of the hearing. In those circumstances, the authorities relied upon by the appellants point strongly toward the conclusion that they were not reasonably able to participate and that procedural fairness requires rehearing.
Disposition
37The denial of reasonable notice deprived the appellants of their right to be heard. This was not a mere procedural irregularity -- it constituted a breach of procedural fairness and therefore an error of law.
38The appeal is allowed, and the following order is made:
- the review decision is set aside;
- the underlying L10 order is also set aside; and
- the matter is remitted to the Landlord and Tenant Board for a new hearing before a different member.
Costs
39If the parties are unable to agree on costs, they may deliver written submissions not exceeding three pages within 15 days of the release of these reasons, with responding submissions of equal length within 10 days thereafter. There shall be no right of reply without leave. If cost submissions are not received within these deadlines, I will assume costs are resolved.
“Justice E. ten Cate”
Justice E. ten Cate
Released: July 22, 2026
CITATION: Smith v. Japra, 2026 ONSC 4281
COURT FILE NO.: DC-26-11
DATE: 2026-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Brian Smith and Tracey Pierce
Appellants
AND
Harkamal Japra and Sukhvir Japra
Respondents
REASONS FOR DECISION
ten Cate J.
Released: July 22, 2026