Increased judicial intervention to correct unfairness at key tribunals

Law360 Canada (August 25, 2025, 1:05 PM EDT) --

Brian Cook

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 are seeking disability benefits.

Tribunals Ontario has been “laser focused” on managing backlogs at its constituent tribunals, which include the Landlord and Tenant Board (LTB), the Human Rights Tribunal of Ontario (HRTO) and the Licence Appeal Tribunal (LAT). Unfortunately, this backlog management has included legally questionable tactics to close or dismiss cases and rules that prioritize closing files over fairness to parties.

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. 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.

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.

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 Shapiro v. Swingler, 2021 ONSC 6191, payment records were not admitted because they were on the tenant’s phone but not on paper. The court said:


Licence Appeal Tribunal

At the Licence Appeal Tribunal, the court has also intervened in the face of unfairness.

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.”

Human Rights Tribunal

The Divisional Court has also overturned Human Rights Tribunal of Ontario decisions for unfairness.

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:


In Ramirez v. Rockwell Automation Canada Ltd., 2025 ONSC 1408, the court overturned a dismissal order: “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.”

In Gardener v. Abell Pest Control Inc., 2023 ONSC 2026, the court commented: “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 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:


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 cases

Social Benefits Tribunal cases


Licence Appeal Tribunal cases


Human Rights Tribunal cases

Superior Court of Justice and Court of Appeal cases


Brian Cook is the co-ordinator of Tribunal Watch Ontario.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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