Getting a Fair Tribunal Hearing During COVID-19

Re-posted from ON THE RADAR, a publication of Community Legal Education Ontario (CLEO)

At the beginning of COVID-19, tribunals across Ontario were forced to close. Many have now re-opened using remote or virtual hearings by video or telephone. This includes the Landlord and Tenant Board, the Ontario Labour Relations Board, the Immigration and Refugee Protection Board, and the Social Benefits Tribunal.

This month’s On the Radar looks at what a fair hearing means and what people can do to protect their rights.

Remote Hearings During COVID-19

Most tribunal hearings in Ontario are now done by phone or video. These hearings can be unfair to people who don’t have access to the internet and the technology they need.

The Right to a fair Hearing

Tribunals must hold fair hearings.

If someone thinks that they’re not getting a fair hearing, they should ask the tribunal to stop the hearing until the problem can be fixed.

If the hearing continues anyway, they can ask the tribunal or a court to “review” the decision. If the hearing was unfair, the tribunal might have to hold a new hearing.

There are many ways that a hearing can be unfair. Here are some of the most common problems.

Getting Notice of the Hearing

The right to notice means that people must be told in advance about their hearing. This gives them time to prepare and gather evidence. Normally, people get their notice of a hearing by mail.

Many tribunals are now scheduling as many hearings as possible to catch up with their backlog. This rush means that many people are not even being told that they have a hearing. Others are being told about their hearing after it’s too late to send in their evidence. This goes against their right to get notice of a hearing.

The Right to be Heard

The right to be heard means that people must be allowed to tell the tribunal’s decision-maker what they think happened. This is also referred to as “making their case”. They also need to review and respond to any evidence used at their hearing.

Many people have found it hard to take part fully in their video hearings for reasons like:

• not having a computer or stable internet connection
• not being able to understand the interpreter if there is one
• having problems using or downloading video-conference software
• not being able to join the hearing because the tribunal is having technical problems

Technical problems like these can interfere with a person’s right to be heard.

Not Showing Bias

A decision-maker cannot be biased or appear to be biased. If the decision-maker favours one side, it’s important that the other person tell the decision-maker during the hearing that they believe this is happening.

Sometimes a court will refuse to consider a claim of bias if it was not raised at the hearing in front of the original decision-maker.

Dealing with Unfair Hearings

If someone’s hearing was not fair, they have several options.

First, they should tell the decision-maker about it. It’s best to do this before the hearing if possible. This could happen, for example, if the person received notice of their hearing but didn’t have enough time to send in their evidence. And it’s important to tell the decision-maker in writing and save a copy of the letter or email.

If the person cannot complain before the hearing, for example, if the problem happens after the hearing has started, they must complain during the hearing. This might happen if the person cannot hear the decision-maker or the decision-maker cannot hear the person.

They should ask the decision-maker to stop the hearing until the fairness problem can be fixed. This puts their concerns “on the record”. It forces the decision-maker to either fix the problem or officially ignore the person’s concerns by continuing with the hearing. The person can then use the fact that they told the decision-maker as evidence in a review of the decision.

If the decision-maker does not fix the problem, the person who was treated unfairly can ask for a “review” or “reconsideration” of the decision. This means that the tribunal will look at the decision and decide if it was done fairly. If it was not fair, the tribunal may order another hearing.

Asking for a decision to be reviewed does not always stop the order from being enforced.

For example, a tenant might ask the Landlord and Tenant Board (LTB) to review an eviction order. It’s possible that the eviction could happen before the LTB even decides whether to review the decision. Sometimes the tenant can solve this by going to court for an emergency order.

Getting Help

The process for asking for a review is different for each tribunal. In some cases, people may have to go to the Divisional Court for review instead of the tribunal. A lawyer can help people know where they should go.

Asking for a review can be a complicated process and it must be done quickly. People who want to apply for a review need to get help from:

• community legal clinic, or
• a private lawyer.