August 18, 2025

Increased judicial intervention to correct unfairness at key tribunals

Ontario’s administrative tribunals are facing increased scrutiny by the courts for unfairness in dismissing claims brought by tenants, landlords, employees, car accident victims, and people who believe they have experienced discrimination or who are seeking disability benefits.

Tribunals Ontario has been “laser focused” on managing backlogs at its constituent tribunals which include the Landlord and Tenant Board, the Human Rights Tribunal of Ontario, and the Licence Appeal Tribunal (which mainly deals with insurance disputes over car accident benefits), and the Social Benefits Tribunal. Unfortunately, this backlog management has included legally questionable tactics to close or dismiss cases and rules that prioritize closing files over fairness to parties. Over the last few years, these developments have prompted increased intervention by the Divisional Court, the branch of Ontario’s Superior Court of Justice that hears appeals and judicial reviews of tribunal decisions.

Courts have historically given tribunals considerable deference, seeing them as bodies with expertise in their own subject matter and entitled to determine their own procedures. Historically, few appeals or judicial review applications of tribunal decisions have succeeded. While most appeals and judicial review applications continue to be dismissed, the courts appear to be showing less deference in the face of increased unfairness.

In addition to unfairness related to backlog reduction, some cases highlight the fact that many of the people appointed to adjudicative tribunals, including to senior leadership positions, have little or no background in the relevant subject area or dispute resolution expertise.

Landlord and Tenant Board

Several Landlord and Tenant Board decisions challenged at the Superior Court involved the tribunal issuing eviction orders where the tenant did not appear at the hearing, often through inadvertence, and where the circumstances suggested it was unfair to assume the tenant did not intend to oppose the landlord’s application.

For example, in Zaltzman v. Kim, 2022 ONSC 1842, the court said “No effort was made to reach out to the Tenant or his representative at the hearing to see why they did not attend the hearing. While I appreciate that such an inquiry is not a requirement, it is prudent in the face of a situation where the Tenant and his legal representative did appear on the last occasion and the matter was adjourned.”

In other landlord and tenant cases, the court found that the hearing was conducted in a manner that was procedurally unfair. Shapiro v. Swingler, 2021 ONSC 6191, involved a tenant who had payment records on their phone but not on paper. The LTB was unsympathetic, but the court was willing to remedy the unfairness, stating as follows:

In cases such as this one, where Tenants face potential eviction and have evidence that may be responsive to the issues at the heart of the dispute at their fingertips, procedural fairness would at least require that the Board consider whether to grant a brief recess to allow the Tenants to obtain paper copies of their bank record. The Board expects the parties to bring paper copies of their evidence at the hearing. The Tenant did not comply with this requirement but did ask for an opportunity to show their banking records to demonstrate that the information in the N8 Form was inaccurate. While the Board is entitled to control its own process, it would have taken very little effort in this case to give the Tenants a short break for the purpose of obtaining paper copies of their bank records to prove the dates on which they paid rent.

The procedural unfairness in this case arises in part from the uneven treatment the parties were given. The Landlord provided no documentary evidence of the late payment of rent. The Landlord testified that there was persistent late payment of rent but provided no contemporaneous records showing when rent was paid. In contrast, the Tenant tried to provide evidence and was denied an opportunity to do so.

Social Benefits Tribunal

Meanwhile, at the Social Benefits Tribunal, the court intervened where decisions exhibited inadequate reasoning or where new evidence was ignored.

For example, in M.I. v. Administrator, Ontario Works Region of Peel, 2024 ONSC 1975, the court said that “the new evidence and submissions on the second reconsideration request were highly material and had the potential to impact the outcome. … In the context of these submissions, the substantive reasons of the Tribunal on the second consideration request repeat the same brief, generic paragraph as the decision dismissing the first reconsideration request…”

License Appeal Tribunal

At the Licence Appeal Tribunal, questions have been raised about the tribunal’s independence, refusal to grant adjournments even when both parties consent, and failure to recognize its role in enforcing consumer protection legislation. In other cases, the court has cited unfairness where the LAT based its decisions on reports of experts who did not make themselves available for cross-examination or dismissed a claim for accident benefits based on an issue that was not raised or addressed by the parties, or by relying on documents that neither party referred to.

For example, in AIG Insurance Company v. Riddell, 2025 ONSC 1979, the court took the rare step of intervening when the LAT denied an adjournment, declaring that “the impugned decision is obviously wrong and unfair.”

Acceptance of an expert report without the requested cross-examination resulted in an overturned decision in Plante v. Economical Insurance Company, 2024 ONSC 7171. The court said, “While the LAT may have its own procedural rules that allow for the most expeditious and cost-effective hearing of a dispute, those rules do not allow for an unfair process by which an expert’s opinion can become unchallenged evidence – this is doubly so where there is a prima facie inconsistency of significance exposed in the expert’s reports.”

And in Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369, the court said as follows; “The Vice-Chair moved from an uncontested finding that a claimant did not attend an insurer medical examination to a conclusion that this was a “failure” and was unreasonable. She then concluded that the unreasonable failure precludes a substantial claim. All that was without reference to the statutory scheme, without justification of the factual finding of unreasonableness, and without justification of the draconian consequence of these findings.”

(Restrictions on cross-examination of an expert similarly prompted courts in 2025 to overturn decisions of two other Ontario tribunals that are not part of Tribunals Ontario: In Hastick v. Banik, 2025 ONSC 3007, the Superior Court ruled that the Consent and Capacity Board improperly restricted cross-examination of a psychiatrist by an unrepresented applicant. And in Clayton (Re), 2025 ONCA 308, the Court of Appeal, the Ontario Review Board was criticized for its attempts to restrict questions to a psychiatrist.)

Human Rights Tribunal

The Divisional Court has also overturned Human Rights Tribunal of Ontario decisions that deemed a case abandoned (for example even when an applicant arrived late for a hearing), or dismissed cases at a preliminary stage as having no prospect of success while ignoring evidence, which if true, would support the case. The court has also found that decisions were based on mistaken facts, or that the tribunal failed to exercise its discretion to process an application that came in 20 minutes late.

In John v.Swedcan Lumican Plastics Inc., 2025 ONSC 3022, the court was sharply critical of the HRTO for initiating a summary hearing by one adjudicator that ended up dismissing the case, while another adjudicator had already started a merits hearing after turning down a request for a summary hearing. The court stated:

Most important here were the reasonable expectations of the applicant. Vice-Chair Doyle had denied the respondents’ request for a summary hearing and directed the matter to proceed to a merits hearing. That hearing was begun in 2020, and the applicant provided testimony. The case was then adjourned. In 2024, the Vice-Chair, as was his statutory prerogative, ordered a summary hearing. He made no acknowledgment that Vice-Chair Doyle had already refused such a hearing and directed a merits hearing, or that a merits hearing had been scheduled and begun, and the applicant had offered evidence. Counsel for the applicant raised concerns about the turn the case was taking in 2024 and sought to have the HRTO withdraw its decision to hold a summary hearing, highlighting the natural justice issue.

In the circumstances of this application, where the applicant had been granted a merits hearing into an issue of central importance to his working life, and that hearing had commenced, procedural fairness dictated that the merits hearing should have continued to conclusion. The decision made by Vice-Chair Doyle and procedures already undertaken up to 2020 had created legitimate expectations in the applicant that could only be satisfied by that hearing continuing to conclusion. …Procedural fairness requires that an individual litigant have the right to their day in court when that day has been granted to them, even on a claim that may not succeed, and that a decision granting that right may not simply be ignored and silently overruled by another adjudicator at the same level as the adjudicator who made the original decision.

Ramirez v. Rockwell Automation Canada Ltd., 2025 ONSC 1408, was a case where the applicant had no history of non-responsiveness to the HRTO, yet the tribunal deemed the case abandoned and dismissed it when he failed to respond once. “It is clear the Tribunal inferred abandonment from the failure to respond to one e-mail. With respect, failing to respond to one e-mail, in all of the circumstances of this case, cannot possibly justify an inference that the Applicant had abandoned the proceeding…. The dismissal is obviously unfair in all the circumstances,” the court said.

In Gardener v. Abell Pest Control Inc., 2023 ONSC 2026, the court was critical of the HRTO, saying that “The Tribunal’s reasons, including its reconsideration, did not reflect the heightened responsibility on it to appropriately address the circumstances – a printing misadventure that caused the application to be ready to be filed at 20 minutes after 5 PM – or the consequence of its decision which denied Ms. Gardener the ability to pursue her human rights complaint.”

In another case involving a limitation period, Konkle v. Ontario (Human Rights Tribunal), 2025 ONSC 4071, the applicant thought the federal human rights system had jurisdiction, as the claim was against the Canada Games Council. Six business days after being told by the federal commission that it had no jurisdiction, the applicant filed at the HRTO, but this was one day after the limitation period had expired. The HRTO refused to extend the time limit, ruling that the delay was not incurred in good faith. In overturning that decision, the court said:

It is clear that the applicant moved with dispatch upon being advised that the CHRC denied jurisdiction. It is not a reasonable approach to require an accounting for every minute of every day of delay. The question the HRTO should have turned its mind to is whether the application initially being brought in the CHRC was a good faith explanation for being one day late in filing its application with the HRTO and whether the applicant moved with reasonable dispatch upon being advised of the CHRC declining jurisdiction.

In these circumstances, we consider it unreasonable to conclude that the delay was not incurred in good faith and set aside the decisions on that basis.

In many of the cases listed below, the courts appear to be more sensitive than tribunals to the serious consequences of unfair dismissals on claimants, who are often the most vulnerable residents of Ontario.

Selected Divisional Court Decisions Overturning Tribunal Rulings

Landlord and Tenant Board

Social Benefits Tribunal

License Appeal Tribunal

Human Rights Tribunal

Selected Divisional Court Decisions Overturning Tribunal Rulings

LTB cases

SBT cases

LAT cases

HRTO cases

Superior Court of Justice and Court of Appeal cases