CITATION: Beyan v. IMH Pool XX LP, 2025 ONSC 5392
DIVISIONAL COURT FILE NO.: 600/24
DATE: 20251001
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Ahmed Beyan, Appellant
AND:
IMH POOL XX LP, Respondent
BEFORE: Shore J.
COUNSEL: Sima Atri and Grayson Alabiso-Cahill, for the Appellant
Kristin A. Ley, for the Respondent
HEARD at Toronto: April 8, 2025
DECISION
[1] On May 3, 2024, the Landlord and Tenant Board (“LTB”) approved the Landlord's application for an Above-Guideline Rent Increase (“AGI”) for three buildings, located on Thorncliffe Drive, East York, Ontario (the "Decision").
[2] On September 5, 2024, the LTB, denied the Tenants' requests to review the decision (the "Review Decision").
[3] One of the Tenants, Ahmed Beyan (the "Tenant"), appeals the LTB order, dated September 5, 2024, denying the request to review the initial order.
[4] For the reasons below, the appeal is dismissed.
Background:
[5] The Tenant lives at 79 Thorncliffe Park Drive.
[6] In December 2019, two real estate funds (the "Landlords") purchased 71, 75 and 79 Thorncliffe Drive, which are three high rise rental buildings located in East York in Toronto. The Landlords renovated the common areas, including the balconies and the exterior of the buildings.
[7] In January 2022, the Landlords applied for AGI approval for the following items: building exterior and balcony restoration; lighting retrofit; and booster pump replacement.
[8] On May 26, 2023, the Landlord filed a Request to Shorten Time ("RST"), asking the LTB to schedule the hearing of its AGI application on an expedited basis. At this point, no hearing date had been scheduled. The reasons for the RST were harassment, interference, and intimidation efforts by some of the Tenants. The LTB granted the request on June 23, 2023.
[9] Sometime shortly thereafter, the LTB scheduled a written hearing of the Landlord’s AGI application and issued a Notice of Written Hearing to the Respondent.
[10] On August 14, 2023, the Tenants were served with the Notice of Written Hearing, requiring their written submissions by September 15, 2023.
[11] On September 13, 2023, the Tenants submitted a request to have the hearing proceed in person, instead of in writing. The Landlord responded on September 28, 2023, opposing the request for an in-person hearing.
[12] On October 31, 2023, the LTB denied the Tenants' request for an in-person hearing but extended the time for the Tenants to file their material for the written hearing, given that the deadline to submit materials had already passed.
[13] The parties filed their respective written materials, and on May 3, 2024, the LTB granted the AGI application in favour of the Landlord.
[14] On June 2, 2024, counsel for the Tenants filed a request to review the Decision. The Tenants submitted that they were denied the ability to reasonably participate in the proceeding.
[15] On September 5, 2024, the Board denied the request for a review.
[16] The Tenant is appealing the Decision and the Review Decision.
Grounds for Appeal:
[17] The grounds for appeal are as follows:
(a) Did the LTB deny the Tenants' right to procedural fairness by granting the Landlord's request to expedite the hearing on an ex parte basis; and
(b) Did the LTB deny the Tenants' right to procedural fairness by denying the Tenants' request that the hearing proceed in person instead of in writing?
[18] Although the Tenant submits that he is appealing the LTB decision dated May 3, 2024, and the Review Decision, dated September 5, 2024, this is really an appeal of the procedural decisions, of June 23, 2023 (the decision to expedite the hearing) and October 31, 2023 (the decision denying the request to proceed in person).
[19] The issue of whether the Tenant can appeal the underlying procedural decisions was not raised by the Landlord during the appeal. I will therefore proceed to address the substance of the appeal before the Court.
Jurisdiction and Standard of Review:
[20] Appeals to this Court from the LTB's decisions are restricted to questions of law alone on the standard of correctness. The Court has no jurisdiction to hear an appeal from an LTB order on a question of fact or mixed fact and law.
[21] Issues of procedural fairness arising from tribunal decisions where there is a statutory appeal mechanism are subject to the appellate standard of review of correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220. Absent an extricable question of law, the Court may not interfere with the LTB's findings of fact underlying its conclusion on procedural fairness. In other words, the LTB is entitled to control its own process and is entitled to deference on procedural matters requiring an exercise of discretion, unless there was an error in principle in how the discretion was exercised.
[22] Tribunals are owed considerable deference on their procedural decisions. This is because administrative tribunals have the experience and expertise to balance the need to ensure fair participation for all parties with the prompt determination of proceedings on their merits: Wei v. Liu, 2022 ONSC 3887 (Div. Ct.), at para. 9.
[23] When scrutinizing the procedural choices of a Tribunal, the reviewing Court cannot insist on the "optimal" procedure from various options that meet the standard for procedural fairness. The court is required to respect the procedural choices made by the Tribunal: Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817 at para. 27; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 231.
[24] Finally, LTB decisions are to be reviewed in the context of its high volume of applications and its statutory mandate to adopt the most expeditious method of proceeding that afford parties with adequate opportunity to know the issues and to be heard.
There was no denial of procedural fairness by making an order on an ex parte basis to expediate the hearing
[25] The Tenant submits they were denied procedural fairness because they did not receive notice of the Landlord's request to shorten the time to the hearing and they did not have an opportunity to respond to the request. However, rule 16.5 provides that a request to extend or shorten time may be decided by the LTB without requesting submissions from other parties to the application.
[26] The Tenant also submits they were denied procedural fairness when the LTB granted the request to shorten the time until the hearing. Rule 16.4 provides that the following factors may be considered in deciding whether to grant a request to shorten or extend time:
(a) The length of the delay, and the reason for it;
(b) Any prejudice a party may experience;
(c) Whether any potential prejudice may be remedied;
(d) Whether the request is made in good faith; and
(e) Any other relevant factors.
[27] The LTB considered these factors. The Tenant made similar submissions to the LTB in their request for review. The Review Decision provides that "[b]y finding that 'The Landlord's request has been made in good faith and is supported by evidence filed with the request', the Vice Chair demonstrates that he also considered Rule 16 of the Board's Rules of Procedure". Further, the LTB found that the "Landlord's staff and their families have been subjected to intimidation and harassment by certain individuals who want to pressure the Landlord to abandon the applications." The LTB also found that the Landlord's allegations were supported by the evidence filed with the request and the prejudice to the Landlord could not be remedied. The LTB properly considered the factors required under their own rules of procedure.
[28] Finally, the request to shorten the time was made in May 2023, and granted in June 2023. Ultimately, the Tenants' materials were not due until November 2024, and the decision was not released until May 2024, a year after the request was made.
[29] Having followed the LTB rules and having considered and applied the necessary rules and factors, I find there was no denial of procedural fairness to the Tenant in determining the motion to shorten the time without notice to the Tenants and in exercising discretion to shorten the time.
There was no denial of procedural fairness by denying the Tenants' request to proceed in person
[30] The Tenant submits that by denying a hearing in person, the Tenants were denied meaningful participation in the proceedings. It is submitted that many of the Tenants do not speak English, and the LTB failed to accommodate their language related needs by denying their request for an in-person hearing. Specifically, the Tenant submits that when denying the Tenants' request for accommodations, the LTB applied the wrong test in determining the mode of hearing and breached the Human Rights Code, R.S.O. 1990, c. H. 19.
[31] The LTB Rules of Procedure provide that the LTB may hold hearings in person, electronically, or in writing, as it considers appropriate and as may be permitted in the circumstances: r. 7.1.
[32] Rule 7.3 provides that an objection to a written hearing must be in writing and explain why there is good reason for not holding a written hearing. The LTB may hold a written hearing unless it is satisfied that there is a good reason not to. The decision is an exercise of discretion. This was the process followed by the Landlord, the Tenants and the LTB.
[33] As of March 31, 2020, the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched. 3 ("HTPA") provides the LTB with broad discretion to determine the format of hearings as it considers appropriate, including written hearings. Section 4 of the HTPA provides that the HTPA prevails over the SPPA in the event of a conflict between those two Acts.
[34] On November 30, 2020, Tribunals Ontario released the Updated Practice Direction on Hearing Formats. It states that all hearings will be held either in writing or electronically subject to two exceptions:
Tribunals Ontario remains committed to providing fair, effective, accessible and timely access to its hearings. Tribunals Ontario recognizes that electronic and written hearings are necessary for providing fair and efficient access to justice and will continue to shift its focus from in-person hearings to electronic hearings.
Moving forward, all matters will proceed as written or electronic hearings with two exceptions:
(i) The first exception is that an in-person hearing may be provided if a party can establish that an in-person hearing is required as an accommodation for an Ontario Human Rights Code-related need.
(ii) The second exception is where a party can establish that the hearing format will result in an unfair hearing.
[35] The Updated Practice Direction on Hearing Formats also provides that the party making the request has the onus of establishing that the hearing format will likely cause them significant prejudice.
[36] Finally, section 183 of the Residential Tenancies Act, 2006, S.O. 2006, c.17 requires the LTB to adopt the most expeditious method of determining the questions arising in a proceeding that affords all parties directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.
[37] The Tenants did not raise any meaningful Human Rights Code argument or request for accommodations under the Human Rights Code at the hearing and cannot raise it now.
[38] The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led or submissions made at the initial hearing if it had been known that the matter would be an issue on appeal: Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, at para. 3.
[39] In their 14-page submissions, the only reference to the Human Rights Code can be found at paragraph 18:
The LTB has the discretion to order an in person hearing where a party can establish that an in-person hearing is required as an accommodation for an Ontario Human Rights Code related need or where a party can establish that the hearing format will result in an unfair hearing.
[40] The Tenants were repeating the provision from the Updated Practice Direction on Hearing Formats, as set out above. The Tenants then proceeded to make submission solely on the second exception, that the hearing format will result in an unfair hearing. At no time did the Tenants advance or suggest that they were seeking an accommodation under the Human Rights Code.
[41] Rule A5 of the LTB's Rules of Procedure confirm that parties appearing before the LTB are entitled to accommodation under the Human Rights Code and requires that the person requesting accommodation provide notice of a request as soon as possible. The Tenants did not seek accommodations under the Human Rights Code prior to or at the hearing and did not follow the procedure for seeking accommodations under the Human Rights Code.
[42] The Vice Chair noted in the October 31, 2023, endorsement that the Tenants were represented by a Licensee of the Law Society of Ontario. The Tenants' legal representative submitted a 291-page brief of legal arguments and documents in support of the request for an in-person hearing. The Tenants were therefore able to participate in the proceeding by introducing written submissions that articulated their position with respect to an in-person hearing.
[43] I find no error in the procedure followed by the LTB or the application of the facts to the rules. There is no merit to the appeal under this ground.
[44] The appeal is dismissed.
[45] The parties agreed that they will each bear their own costs. Therefore, there will be no order as to costs.
Shore J.
Date: October 1, 2025