Metropolitan Toronto Housing Authority v. Godwin et al. [Indexed as: Metropolitan Toronto Housing Authority v. Godwin]

50 O.R. (3d) 207

[2000] O.J. No. 3393

Court File No. 112/2000

Ontario Superior Court of Justice

Divisional Court

O'Driscoll J.

September 13, 2000

Landlord and tenant -- Residential tenancies -- Abatement of rent -- Application by 312 tenants for rent abatement on grounds that their landlord had interfered with reasonable enjoyment of their premises -- Tenants obtaining order from Ontario Rental Housing Tribunal that 11 tenants could give representative evidence on behalf of 312 applicants -- Tribunal without jurisdiction to make order for representative proceeding -- Tribunal's order quashed on application for judicial review -- Tenant Protection Act, 1997, S.O. 1997, c. 24.

From April to August 1999, the Metropolitan Toronto Housing Authority ("MTHA") carried out balcony repairs at a building operated as student housing for the University of Toronto. On July 20, 1999, the tenants of the building brought an application to the Ontario Rental Housing Tribunal (the "Tribunal") for a rent abatement on the ground that MTHA as landlord had interfered with their reasonable enjoyment of their premises contrary to s. 32(1) of the Tenant Protection Act ("TPA"). The application listed 312 tenants as applicants. In their proceedings before the Tribunal for an abatement, a member of the tribunal made an order, which was dated December 31, 1999, that would have allowed 11 tenants to be called to give representative evidence before the Tribunal as though the application were a representative action. The tenants intended to call 11 tenants to prove the case for the 312 tenants on the basis of this representative evidence. The MTHA asked the Tribunal to review or to stay its order and when these requests were refused, the MTHA brought an application for judicial review to quash the order of December 31, 1999.

Held, the application for judicial review should be granted.

Although the impugned order was an interim order, the application for judicial review should proceed because whether the Tribunal had jurisdiction to allow a representative action was a bedrock issue that should be decided before the tribunal embarked on what was scheduled to be a four-day hearing. If the Tribunal lacked jurisdiction, then the hearing would be fatally flawed and be a waste of time and money for all the parties. Cases under the predecessor legislation, the Landlord and Tenant Act ("LTA"), had allowed one person to make or defend an application "on behalf of or for the benefit of all" as provided in s. 119 of the LTA. However, this wording did not appear in the TPA. The power given to the Tribunal under s. 171 of the TPA could not be interpreted as bestowing jurisdiction on the Tribunal to allow any type of proceedings as long as the method was the most expeditious. Such an interpretation would render unnecessary the power of joinder of s. 173(2) of the TPA and it would negate the right of the responding parties under s. 13 of the TPA to cross-examine each applicant regarding alleged losses. The Tribunal was without jurisdiction to make the order of December 31, 1999, and it was prohibited from continuing the proceedings as a representative hearing.

APPLICATION for judicial review under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Cases referred to Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, 108 D.L.R. (4th) 1, 160 N.R. 321, 93 C.L.L.C. 14,062 (sub nom. Canadian Pacific Airlines Ltd. v. CALPA); General Motors of Canada Ltd. v. Naken, 1983 19 (SCC), [1983] 1 S.C.R. 72, 144 D.L.R. (3d) 385, 46 N.R. 139, 32 C.P.C. 138; Great Atlantic & Pacific Co. of Canada v. Ontario (Minister of Citizenship) (1993), 62 O.A.C. 1, 1993 16526 (ON SCDC), 18 C.H.R.R. D/89 (Div. Ct.); Pasiechnyk v. Saskatchewan (Workers' Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890, 158 Sask. R. 81, 149 D.L.R. (4th) 577, 216 N.R. 1, 153 W.A.C. 81, [1997] 8 W.W.R. 517, 30 C.C.E.L. (2d) 149, 37 C.C.L.T. (2d) 1 (sub nom. Pasiechnyk v. Procrane Inc.); Roosma v. Ford Motor Co. of Canada (1988), 89 C.L.L.C. 17,013, 1988 5633 (ON SCDC), 53 D.L.R. (4th) 90, 29 O.A.C. 84, 66 O.R. (2d) 18 (Div. Ct.); Thompson v. Metropolitan Toronto Housing Authority, Ont. Gen. Div., Molloy J., November 26, 1996 (unreported) Statutes referred to Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5(1), 18, 25, 37 Landlord and Tenant Act, R.S.O. 1990, c. L.7, s. 119 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(2) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 21.2, 25 Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 13, 32(1), cl. 6, 157(2), 162, 171, 173(1), (2), 195 Rules and regulations referred to Rules of Practice, R.R.O. 1980, Reg. 540, rule 75 -- now Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Authorities referred to Black's Law Dictionary, 7th ed. (St. Paul, Minnesota: West Publishing Co., 1999)"class action""representative action"

Lorenzo D. Policelli, for Metropolitan Toronto Housing Authority. Randy S. Schroeder, for Ontario Rental Housing Tribunal. Tracy Heffernan, for respondents, tenants.

O'DRISCOLL J.: --

I. Nature of the Proceedings

[1] The Metropolitan Toronto Housing Authority ("MTHA") seeks:

1. an order granting leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA") for judicial review to be heard by a judge of the Superior Court because of urgency, and

2. if leave be granted, judicial review to quash an order of Ms. Sonia Light, a member of the Ontario Rental Housing Tribunal ("Tribunal"), made on December 31, 1999, with respect to an application by the tenants seeking a rent abatement alleging that the landlord had interfered with tenants' reasonable enjoyment of the units during the time period when extensive repair work was done to balconies of the building.

[2] The application was brought by the respondents, Sarah Godwin et al., being tenants at various units of 30 Charles Street West, Toronto.

[3] The impugned interim order of December 31, 1999, would have allowed 11 tenants to be called to give representative evidence before the Tribunal as though the application were a representative action.

[4] On March 24, 2000, I endorsed the record:

This application is allowed. order to go granting the relief sought in paragraph 1(a), (b) and (d) on page 4 of the Judicial Review Application (12/2000) launched February 28, 2000. Reasons to follow.

II. Background

[5] On July 20, 1999, the tenants' application (no. TST- 01266) was filed with the Tribunal. It alleged that MTHA had substantially interfered with the reasonable enjoyment of the tenants with respect to each individual tenant's rental unit situated at 30 Charles Street West, Toronto ("the building"). The application was brought pursuant to s. 32(1), cl. 6 of the Tenant Protection Act, 1997, S.O. 1997, c. 24 ("TPA").

[6] The application lists 312 tenants as applicants. The tenants reside in the building which is operated by MTHA as student family housing for the University of Toronto.

[7] From about April 1, 1999, to approximately August 31, 1999, MTHA carried out balcony repairs to the building. The tenants applied to the Tribunal claiming abatement of rent for the five-month period alleging that because of noise and dust, MTHA had substantially interfered with the reasonable enjoyment of the rented units, contrary to s. 32(1), cl. 6 of the TPA. No amount was claimed for abatement.

[8] On September 6, 1999, counsel for the tenants raised a preliminary issue: he stated that he wished to present the tenants' application by calling 11 witnesses to testify on behalf of all the tenants in the building. Counsel for MTHA submitted that the Tribunal did not have the jurisdiction to combine all the applications.

[9] On September 24, 1999, Ms. Cynthia Summers, a member of the Tribunal, ruled that pursuant to s. 173 of the TPA, the Tribunal had jurisdiction to combine several applications into one application:

173(1) A tenant may combine several applications into one application.

(2) Two or more tenants of a residential complex may together file an application that may be filed by a tenant if each tenant applying in the application signs it.

(3) A landlord may combine several applications relating to a given tenant into one application, so long as the landlord does not combine an application for a rent increase with any other application.

[10] On September 24, 1999, the Tribunal ordered that the tenants provide signatures of the tenants/applicants to the Tribunal and to the MTHA prior to the return date for hearing of the application. Ms. Sarah Godwin, through her agent, was the only tenant who had signed the tenants' application.

[11] On November 19, 1999, when the heating resumed before Ms. Light (Tribunal), MTHA raised a preliminary issue and requested an order that the tenants' application not proceed to be heard as a representative action. MTHA further submitted that if the Tribunal determined the amount of abatement, if any, on the basis of representation evidence, MTHA would be prejudiced because it would not have an adequate opportunity to hear the case against it by each tenant, individually, cross- examine on the validity of each tenant's claim and challenge the amount of abatement claimed.

[12] Ms. Sonia Light (Tribunal) stated that Ms. Summers' decision of September 24, 1999 ordered that the tenants' application proceed as a "combined" multi-tenant application under s. 173(2) of the TPA. Ms. Light also stated that the proceeding did not constitute a "representative action". Regarding the issue of representation evidence being called at the tenants' application, Ms. Light concluded:

Also raised by counsel for the Landlords, was that each applicant for a rent abatement must give evidence in order to justify each abatement. It was argued that determining the quantum of abatement to be ordered on the basis of representative evidence would be prejudicial to the Landlord because the Landlord would not have an adequate opportunity to know the issues and be heard on the matter. However, similar cases under the previous legislation effectively used this approach in determining the quantum of abatements to be ordered to the tenants. In the case of Thompson et al. v. Metropolitan Housing Authority, November 26, 1996 (Ontario Court of Justice, General Division, 96-LT-119698) Molloy, J. considered this type of evidence to arrive at a median amount that would do justice to the group as a whole. Therefore, some tenants will benefit from this approach and some will not. The Landlord is not prejudiced by this approach because overall the abatement will reflect the average experience. Also, to ensure t his result, it is open to the Landlord to call evidence to refute that the evidence submitted by the tenants is in fact representative and to call other tenants as witnesses.

[13] On January 24, 2000, MTHA requested that the Tribunal review its December 31, 1999 order on the basis that the Tribunal had failed to interpret correctly the TPA and had based the December 31, 1999 order on "previous legislation" and not on the basis of the TPA.

[14] The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") provides:

21.2(1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.

(2) The review shall take place within a reasonable time after the decision or order is made.

(3) In the event of a conflict between this section and any other Act, the other Act prevails.

25(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise.

(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2(1) of that Act is not an appeal within the meaning of subsection (1).

[15] On January 24, 2000, MTHA served the tenants with a notice of appeal to the Divisional Court from the December 31, 1999 order.

[16] On January 25, 2000, Ms. Catherine Skinner (Tribunal) denied MTHA's request to review and stated that the interim December 31, 1999 order was not subject to review.

[17] On February 2, 2000, MTHA requested the Tribunal review its January 25, 2000 order and argued that the Tribunal erred in holding that its December 31, 1999 order was not subject to a review by the Tribunal.

[18] On February 3, 2000, Ms. Sonia Light (Tribunal) ordered that her December 31, 1999 decision not be stayed pending MTHA's appeal to the Divisional Court of her decision.

[19] On February 4, 2000, David B. Braund (Tribunal) denied MTHA's request for review of the December 31, 1999 decision for different reasons. He stated that an interim order could be reviewed but it was only "where an interim decision deals with relief that is 'final' or irreparable in some way".

[20] On February 11, 2000, MTHA filed a request to review the February 3, 2000 order on the basis of a reasonable apprehension of bias of the Tribunal (Ms. Light) because her February 3, 2000 order refused to stay her December 31, 1999 order.

[21] On February 14, 2000, Ms. Cynthia Summers (Tribunal) denied MTHA's February 11, 2000 request to review the February 3, 2000 order of Ms. Light (Tribunal).

[22] On March 6, 2000, MTHA launched this judicial review application. It also abandoned the appeal that it had commenced and served on January 24, 2000.

[23] The Tribunal had scheduled a four-day hearing from March 28 to March 31, 2000, to hear the tenants' appeal on its merits.

[24] The tenants intended to call 11 tenants "to prove the case for the 312 tenants on the basis of representation evidence" as permitted by the Tribunal's decision of December 31, 1999.

[25] My order of March 24, 2000 ended those proposed proceedings scheduled to commence on March 28, 2000.

[26] To date, only preliminary legal submissions have been heard by the Tribunal. No viva voce has been heard from any tenant as to the merits of the application.

[27] On January 7, 2000, February 10, 2000 and February 17, 2000, MTHA gave written requests to the Tribunal for written reasons from Ms. Light (Tribunal) for her December 31, 1999 decision. No reasons have been given.

III. Relevant Considerations in Determining this Judicial Review Application

A. Has MTHA established urgency?

[28] Section 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA") provides:

6(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

[29] The impugned order was made on December 31, 1999. The Tribunal, on January 25, 2000, denied the MTHA's request for a review. The Tribunal has denied all requests by MTHA to stay its December 31, 1999 order.

[30] This judicial review was launched on March 6, 2000, and heard by me on March 10, 2000. The Tribunal had a four-day hearing scheduled to commence on March 28, 2000. In my view, the applicant, MTHA, in all the circumstances, established "urgency".

B. Should the application for judicial review be entertained because the impugned order of the Tribunal is an interim order?

[31] In Roosma v. Ford Motor Co. of Canada (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 at pp. 25-26, 53 D.L.R. (4th) 90 (Div. Ct.), Reid J. said:

Notwithstanding their reluctance to intervene in the proceedings of tribunals prior to their completion courts will do so in order to avoid wasting time and money. Thus, if it appears at the outset that a proceeding in a tribunal will be fatally flawed, a means exists by way of judicial review to challenge it. That is so even where an appeal is provided. The general rule that the court will not intervene on judicial review where an appeal is provided is inapplicable in such a case because it assumes the proceedings have been completed.

See also Great Atlantic & Pacific Co. of Canada v. Ontario (Minister of Citizenship) (1993), 62 O.A.C. 1 at pp. 8-10, 1993 16526 (ON SCDC), 18 C.H.R.R. D/89 (Div. Ct.).

[32] In my view, whether the Tribunal had jurisdiction to allow a representative action is a bedrock issue that should be decided before the Tribunal embarked on a four-day hearing. If the Tribunal lacked such jurisdiction, then the hearing would be fatally flawed and be a waste of time and money for all the parties. Therefore, although the impugned order is "interim", the judicial review should proceed.

C. Former legislation and judicial decisions

Landlord and Tenant Act, R.S.O. 1990, c. L.7.

119. Where more than one person has a common interest in respect of an application under this Part, one or more of those persons may be authorized by a judge of the Ontario Court (General Division) to make or defend an application on behalf of or for the benefit of all.

[33] The wording of the former s. 119 of the Landlord and Tenant Act does not appear anywhere in the TPA. The legislature omitted s. 119 when consolidating and revising Ontario's law of residential tenancies. The words "on behalf of or for the benefit of all" (former s. 119) do not appear in the TPA.

[34] Rule 75 of the Rules of Practice, R.R.O. 1980, Reg. 540 (superseded) stated:

75. Where there are numerous persons having the same interest, one or more may sue or be sued or may be authorized by the court to defend on behalf of, or for the benefit, of all.

D. Present applicable legislation

Tenant Protection Act, 1997, S.O. 1997, c. 24.

13. When a landlord or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person's losses.

32(1) A tenant or former tenant of a rental unit may apply to the tribunal for any of the following orders:

6. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.

157(2) The Tribunal has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

162. The Tribunal has authority to hear and determine all questions or law and fact with respect to all matters within its jurisdiction under this Act.

163. The Tribunal shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.

173(1) A tenant may combine several applications into one application.

(2) Two or more tenants of a residential complex may together file an application that may be filed by a tenant if each tenant applying in the application signs it.

195. Except where this Act provides otherwise, an order of the Tribunal is final, binding and not subject to review except under section 21.2 of the Statutory Powers Procedure Act.

E. Present "class action/representative action" legislation in force in Ontario

[35] Black's Law Dictionary, 7th ed. (St. Paul, Minn.: West Publishing Co., 1999), defines a "representative action" as a "class action". The same dictionary defines "class action" as "a lawsuit in which a single person or a small group of people represent the interests of a larger group".

[36] The Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA") in s. 5(1), sets out the requirements to obtain court certification. Sections 18 and 25 set out the procedure and circumstances where individual issues are required to be determined. Section 37 limits the CPA's application.

F. Standard of review

[37] In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, 108 D.L.R. (4th) 1, the Supreme Court of Canada decided the question of whether the Canada Labour Relations Board ("Board"), during its inquiry into matters raised by the Canada Air Line Pilots Association ("Association") under s. 119, 133 and 144 of the Canada Labour Code, R.S.C. 1970, c. L-1 ("Code"), pursuant to s. 118(a) of the Code, has the authority to compel parties, interveners or interested persons, to produce documents and written testimony prior to and outside of a formal viva voce hearing held by the Board. The majority held that s. 118(a) of the Code was clear: the Board may exercise its power to compel the production of documents only in the context of a formal hearing. Gonthier J. (for the majority) said [at pp. 735 and 747-48]:

An analysis of the power granted to the Board by s. 118(a) of the Code first calls for a consideration of its wording. As the issue goes to the jurisdiction of the Board, the standard governing judicial review of the Board's order is one of correctness: U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, and most recently Dayco (Canada) Ltd. v. CAW- Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230.

The extent of the power granted by s. 118(a) of the Code appears from the plain meaning of the words of the provision. The Board may exercise its power to compel the production of documents only in the context of a formal hearing. This conclusion is supported also by the fact that the nature of the power is coercive, and that the limits on its exercise must be respected. The fact that the power is also judicial in character makes extension of its application to an administrative context, one which would require clear words to that effect. The structure of the provision makes the power to compel the production of documents a part of a complete process which is limited to a formal hearing to which witnesses may be summoned and where they may give evidence on oath. The scope of s. 118(a) cannot be enlarged by means of reference to s. 118(f), which is permissive in nature. Similarly, the presence of broader provisions cannot here operate to allow the special limits imposed on power s such as this to be disregarded. As there is no basis for the conclusion that such a confinement of the power would be inconsistent with the purposes of the Board, when its administrative and judicial functions are considered, the power which is conferred on the Board by s. 118(a) is a power to require witnesses to attend a proceeding before the Board and there to give oral or written testimony and produce documents deemed requisite. In these circumstances, the powers conferred on the Board by ss. 118(a) and 121 do not include a power to compel the production of documents outside the context of a formal hearing.

L'Heureux-Dubé J. (in dissent) wrote [at p. 756]:

On the other hand, the nature of the problem here in question is decisive as to the applicable standard of review. To issue the order which is the subject of this appeal, the Board did not have to decide a question central to its field of expertise, such as determining the conditions for the application of ss. 133 or 144 of the Code. The power conferred by s. 118(a) belongs not only to the Board, but also to other administrative bodies which are distinct for the purposes of applying the Code (ss. 61.5, 157 and 175). The problem at issue here is not, strictly speaking, one of industrial relations or labour law, which falls within the exclusive jurisdiction of the Board and, accordingly, within its special field of expertise. The question, rather, is to define the means of exercising the power conferred by s. 118(a). As the determination of this question is not within the Board's jurisdiction stricto sensu, the standard of review applicable here, and one with which my colleague Gonthier J. agrees, is whether its interpretation is correct rather than whether it is patently unreasonable.

[38] In Pasiechnyk v. Saskatchewan (Workers' Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890 at pp. 904-05, 149 D.L.R. (4th) 577 at p. 587, Sopinka J. (for a majority) wrote:

To determine the standard of review, I must first decide whether the subject matter of the decision of the administrative tribunal was subject to a privative clause having full privative effect. If the conclusion is that a full privative clause applies, then the decision of the tribunal is only reviewable if it is patently unreasonable or the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal's powers. In either circumstance the tribunal will have exceeded its jurisdiction. These principles are summarized in U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1086:

It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:

1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;

2. if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.

These two propositions derive their force in part from s. 96 of the Constitution Act, 1867. A legislature cannot completely insulate a tribunal from the superintending and reforming power of the superior courts. To attempt this would be to attempt to constitute the tribunal as a superior court: Crevier v. Attorney General of Quebec, 1981 30 (SCC), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1.

A "full" or "true" privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 88 (SCC), [1993] 2 S.C.R. 316, at p. 332, 102 D.L.R. (4th) 402, and Pezim v. British Columbia (Superintendent of Brokers), 1994 103 (SCC), [1994] 2 S.C.R. 557, at p. 590, 114 D.L.R. (4th) 385. Where the legislation employs words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference. See Dayco (Canada) Ltd. v. C.A.W.-Canada, 1993 144 (SCC), [1993] 2 S.C.R. 230, at p. 264, 102 D.L.R. (4th) 609, and National Corn Growers Assn. v. Canada (Import Tribunal), 1990 49 (SCC), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449.

The presence of a privative clause does not preclude review on the basis of an error of law if the provision under review is one that limits jurisdiction. The test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board? In applying the test, a functional and pragmatic approach is to be taken. See Canada (Attorney General) v. Public Service Alliance of Canada, 1991 88 (SCC), [1991] 1 S.C.R. 614, at pp. 628-29, 80 D.L.R. (4th) 520. Factors such as the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise and the nature of the problem are all relevant in arriving at the intent of the legislature. See Bibeault, supra, pp. 1088-89.

IV. Conclusions

[39] Section 119 of the repealed Landlord and Tenant Act permitted a "representative action": see Thompson v. Metropolitan Toronto Housing Authority (unreported, November 26, 1996), per Molloy J. However, there is no section in the TPA that resembles the former s. 119 of the Landlord and Tenant Act.

[40] The power given to the Tribunal under s. 171 of the TPA cannot be interpreted as bestowing jurisdiction upon the Tribunal to allow any type of proceedings so long as the method is the "most expeditious". Such an interpretation would render unnecessary the power of joinder under s. 173(2) of the TPA. It would also negate the right of the responding parties under s. 13 to cross-examine each applicant regarding alleged losses.

[41] In General Motors of Canada Ltd. v. Naken, 1983 19 (SCC), [1983] 1 S.C.R. 72 at p. 93, 144 D.L.R. (3d) 385, Estey J. (for the court) pointed out that "joinder of actions" and "representative actions" were not synonymous. He said that a representative action/class proceeding was "one stage beyond that contemplated" by a joinder of actions.

[42] In my view, the authority conferred upon the Tribunal by s. 173(2) and s. 171 of the TPA goes to the jurisdiction of the Tribunal. The problem of whether or not the TPA allows the Tribunal to turn the hearing into a de facto representative action/class proceeding is a question of law, a question clearly outside the exclusive expertise of the Tribunal. Therefore, the standard of review is that of correctness.

[43] In the alternative, if the interpretation of s. 173(2) and s. 171 of the TPA by the Tribunal is within its exclusive jurisdiction, I hold that the conclusion of the Tribunal that it had the jurisdiction to grant the interim order of December 31, 1999 permitting the tenants to call "representative evidence" is patently unreasonable.

[44] In summary, it is my conclusion that the Tribunal was without jurisdiction to make the interim order. In the alternative, if the Tribunal was vested with the jurisdiction to consider the question, the Tribunal's impugned decision is patently unreasonable.

V. Result

1. The application for leave under s. 6(2) of the JRPA to have this matter heard by a Superior Court judge based on urgency and the likely failure of justice if the application had to wait to be heard by a panel of the Divisional Court is allowed.

2. The impugned interim order of December 31, 1999 is quashed.

3. The proceeding before the Tribunal (No. TST-01206) is prohibited from continuing as a "representative" proceeding.

VI. Costs

[45] In the event of success, the applicant and the respondents each sought $3,000 fixed costs. The Tribunal does not seek costs and asks that it not pay costs.

[46] In all the circumstances, this is not an appropriate case to award costs.

Order accordingly.