How do tenant request to review an order?

Any final order or decision of the Board, including Interim Orders that conclusively resolves an issue may be reviewed. A tenant may ask for a review of the order if they believe the Member made a "serious error" or if the tenant was not reasonably able to participate in the proceeding. It is important that the tenant understands that the Board will expect the tenant to explain the specific circumstances that prevented them from participating in their hearing. Since this may be their only chance to ask for this review, it is important to include enough information to make the error clear to the Board and, if possible to include evidence to support the request to review. Serious errors may include errors of law, fact, procedure, and or jurisdiction. An error of law is where the Board Member misapplied the law; an error of fact is where the Board Member confused or ignored important facts, and error of procedure includes where the tenant was not reasonably able to participate in the hearing.

Clerical errors (e.g., typing, calculation, misspellings or similar mistakes) are not considered serious errors and do not require a Review hearing to correct. To request that clerical errors be corrected, the tenant can complete and file a Request to Amend an Order within 30 days of the date the order was issued. If the tenant missed the deadline, the tenant must file a Request to Extend or Shorten Time form along with the Request to Amend form. 

How to apply for a review of an order?

The request to review must be made in writing to the Board. Although it is not mandatory, the request should be completed using the Board’s form.

The filing fee for a request to review is $50.00. However, the tenant may be eligible for a fee waiver from the Board. To qualify, the tenant must complete the Board’s Fee Waiver Request form and meet the Board’s eligibility criteria. Otherwise, if the tenant is successful at the hearing, they should ask the Board to return the filing fee.

A tenant must file the request to review within 30 days of the date the order was issued. However, where the last day to file the request to review falls on a weekend or on a statutory holiday, parties are permitted to file the review by the next business day. If the tenant misses the deadline, they must request an extension of time to file the request to review.

If the tenant believes that the Member committed a serious error during the hearing, it may be a good idea for the tenant to request a copy of the hearing recording. Listening to the recording before preparing the request for a review will help the tenant to be sure of exactly what occurred and what was said during the hearing. To obtain the recording, the tenant must file a Request for Hearing Recording. It can take several days or even weeks to get the recording, so it is best the tenant not wait until the last minute to request it. The fee for a recording is $16.50, but may be waived if the tenant qualifies for a fee waiver.

If the order that the tenant is attempting to review is enforceable either with the Sheriff or Small Claims Court, the tenant should also request a stay of the order. If the review is granted, this will prevent the order from being enforced.

If an appeal is filed with the Divisional Court on the order the tenant wants to be reviewed, the Board cannot consider the review request unless the stay resulting from the appeal is lifted. The tenant will have to include in the review request an explanation of why the Board should lift the stay and consider the request for review. The tenant should understand that the lifting of the stay is a discretionary power and they should be prepared to make submissions on it if requested by the Member.

Who can request a review?

The Landlord and Tenant Board will only accept one request to review from a party. However, the Board may review an order or decision which has previously been reviewed or may review a review order, if the request is made by another party upon different grounds. The Board also reserves the right to initiate a second review or review of a review order, on its own motion.

A party may also request a Board Initiated Review. This request is made to the Regional Vice-Chair of the Board. The Board does not have a form to complete the request on. The request is made by writing a letter to the Vice-Chair. The party must explain what serious errors there are in the resulting order or decision.

Finally, any party that is directly affected by a Board order may request to review the order. For example, if the order named the tenant’s guarantor as a party to the application and order, the guarantor would have standing to request a review of the order. 

The review process

Once the tenant files their review request, a Member on duty in the back office will conduct a preliminary review of the request without holding a hearing to determine whether or not the order may contain a serious error or a serious error may have occurred in the proceedings. This review is based on the paperwork submitted by the tenant, so it is important for the tenant to include, or at least refer to, any evidence they will rely on at the hearing they are requesting.

If the Member decides there is a possibility of a serious error affecting the result of the case, a review hearing will be held. Otherwise, the Member will issue an order dismissing the request for review.

Next step if the review request is granted

If the request to review and stay the order is granted, the Board will issue an interim stay order and Notice of Review Hearing. The tenant must file a copy of the interim order with their local Court Enforcement Office (Sheriff) to stop the Sheriff from enforcing the order.

If the order under review requires payment of money by the tenant, and the landlord has filed the order with the Small Claims Court for enforcement, the interim order should also be filed, along with a motion, at Small Claims Court to prevent garnishment of a tenant’s

The Review hearing

At the review hearing, the Board will hear submissions on whether or not a serious error occurred in the original proceedings. Where a Member determines that no serious error occurred, the request for review will be denied.

Where a Member determines that a serious error has occurred, a rehearing of the original application will be held immediately after the determination. The Member may conduct a partial or full rehearing of the matter, address some or all of the issues set out in the request, may or may not hear or rehear evidence, or may simply decide to hear submissions.

Withdrawing a request

A tenant may withdraw a request to review without the consent of the Board if no interim order was issued, no order or decision was made, or before the start of the hearing of the request to review. However, if an interim order was issued, the tenant would require the consent of the Board to withdraw their request for review.