Virtual Hearings at Administrative Tribunals — Another Perspective (Lesli Bisgould & Daniel McCabe)

My post on virtual hearings (about which I was perhaps unduly sanguine) prompted an email from Lesli Bisgould and Daniel McCabe. Their perspective is very different to mine, probably because we come at the issue from different backgrounds. Any opinions or views expressed herein are solely those of the authors. They do not necessarily reflect the views or opinions of Legal Aid Ontario. I found their email impressively thorough and thought-provoking and gratefully post it with their permission:

We are lawyers at Legal Aid Ontario’s Clinic Resource Office where we provide a variety of supports to lawyers and paralegals at legal clinics across Ontario. The problems faced by legal clinic clients are usually addressed at administrative tribunals, such as the Landlord and Tenant Board, the Social Benefits Tribunal and the Human Rights Tribunal of Ontario.  We are therefore regular (and grateful) readers of your Administrative Law Matters blog.

We are taking the liberty of writing in response to your comments on virtual hearings, a subject that frequently comes across our desks, in hopes you will have time and interest to consider our concerns.

Administrative law is nothing if not contextual. At the same time, making sense of the discipline necessarily involves a search for common organizing principles that transcend the complex and varied contexts within which administrative actors operate.

Achieving an appropriate balance between the context-specific and the level of general principle is one way in which your scholarship has helped adjudicators, judges and lawyers develop a better understanding of Canadian administrative law. However, as you can appreciate, honing in on general principles comes with the risk that one might lose sight of the people who are actually affected by an administrative law problem.

From our perspective, your recent post on virtual hearings fell short in this way, particularly when recognizing virtual hearings’ ability to enhance access to justice in almost the same breath as a reference to the Ontario Landlord and Tenant Board’s policy of holding virtual hearings by default. For the sake of simplicity, we will focus just on the LTB in this correspondence.

It may well be the case that, in a general sense, virtual hearings further access to justice for those participants who stand to benefit from the reduced travel, and potentially reduced costs and delays, associated with a virtual proceeding. It is also generally accepted that, with appropriate safeguards, a hearing by videoconference may permit an adjudicator to make credibility assessments that have traditionally required an in-person hearing.

But these generalizations – and pronouncements that virtual hearings are not inherently unfair, hearing platforms require no special skills, and tribunal IT departments can ensure participants have access – are divorced from the reality of the high stakes, high volume and high vulnerability context of the LTB. In that forum, the disparity between participants, and the systematic unfairness of virtual proceedings, is on display every day.

The LTB’s practice direction on hearing formats was last updated in November 2020, at the height of the COVID-19 pandemic. As has been detailed elsewhere (e.g., Tribunal Watch Ontario,  “LTB Statement of Concern: The Numbers Speak for Themselves“, Feb. 2024; Noel Semple, “The Inaccessibility of Justice in Ontario’s Adjudicative Tribunals: Symptoms and Diagnosis“, 2023, TMU Law Review [forthcoming], pp. 7-9; Tribunal Watch Ontario, “Statement of Concern: Access to Justice Threatened at the Landlord and Tenant Board”, Aug. 2021; Advocacy Centre for Tenants Ontario, “Digital Evictions: The Landlord and Tenant Board’s Experiment in online hearings”, 2021), the LTB’s transition from holding primarily in-person hearings has been beset by problems.

To give just a few examples identified by the provincial Ombudsman in a May 2023 report:

• “a significant number of tenants, in contrast to landlords, do not have access to video technology and must participate in
  hearings by phone,” while the landlord and the adjudicators are in a video hearing room. Some tenants “lack access to phones, rendering their participation in virtual hearings impossible without accommodation.” (para.198 of Ombudsman’s report)
• virtual hearings are “chaotic,” with participants struggling and sometimes failing to join their hearing, or “losing audio connection part way through.” Adjudicators reported being unable to find and share documents on screen during a hearing. (paras. 209, 215-220 of the Ombudsman’s report)

An example from London, Ontario that received some press involved a single mother who waited more than four hours on the phone for her hearing to begin. She briefly spoke with duty counsel, then was moved to a separate virtual breakout room, expecting to meet with an adjudicator or mediator. Instead, she was alone with her landlord. When the tenant was later moved back to a hearing room with the adjudicator, it appeared she had verbally agreed to move out and was told that her hearing was over. As a result, she had to move out, an agreement she did not make.

Despite repeated judicial statements (e.g., Schram v. Thompson,  2022 ONSC 6922, Carr v. Brown, 2022 ONSC 4337, Stenka v. Garten, 2023 ONSC 6120) that the requirements of procedural fairness in LTB proceedings lie at the higher end of the spectrum – in appeals where tenants not only attempted to navigate the barriers to their participation before the LTB but also managed to bring their matter to court on appeal – the closure of physical offices, lengthy call centre wait times, dense notices of hearing and short deadlines, make it difficult for parties without adequate internet access to request the procedural accommodations they require to meaningfully and fairly be heard.

Lack of access to, and facility with, technology is only one problem, which is exacerbated by factors like disability, poverty and a lack of English or French language skills. These factors were overlooked in your comment, perhaps because they are less of a concern in many professional discipline, commercial litigation and securities regulation matters. By contrast, they are almost always live concerns in proceedings before the LTB.

Where parties are able to overcome the barriers to requesting in-person hearings, these requests are almost never granted. Too often, unrepresented tenants are forced to attempt to participate in their hearings by phone, along with dozens of other parties for proceedings in the same virtual hearing room. Better-resourced landlords are not only represented more often, they are more likely able to appear by video-conference. This places them at a distinct advantage to an adversary who is struggling to follow the proceedings from a phone, given a video participant’s ability to see the presiding adjudicator, any documents or video-recordings that are being referred to, and any witnesses appearing by video. Phone participants are more limited in following an adjudicator’s cues, including non-verbal ones, and encounter greater difficulties in unmuting themselves in a timely manner, as circumstances require.

One of the rare instances where an in-person hearing was ultimately granted might illustrate the point. We recently assisted a clinic lawyer whose client has mental illness and lived in a rural location with poor internet service and limited cell phone reception. He has no computer, only a cell phone. Seeking to enforce his right to be free from harassment from a landlord, whose conduct had driven him from his home, the LTB initially determined he could attend his hearing by telephone. This would have required him to drive to the top of a hill where he had the best chance of getting reception, assuming weather and other conditions were in his favour. There, this mentally ill man would have had to listen to the hearing and hope to understand what was taking place, review documentary evidence, cross-examine witnesses, make submissions, etc.

(We have also had many reports of the LTB encouraging tenants who do not have reliable internet access to go to a public library and use one of their computers for their hearing. Needless to say, a public library is no place to participate aloud in a hearing about highly personal matters.)

Even once the lawyer got involved, she had a very difficult fight, requiring considerable support from our office, to convince the LTB to grant an in-person hearing. This was one of a handful of in-person hearings the LTB has agreed to in years, and only because a senior lawyer pressed for it. Most tenants do not have the benefit of legal representation at the LTB, or at the other administrative tribunals that are making consequential decisions about their lives.

In one recent decision out of Saskatchewan, Justice Elson of the Court of King’s Bench evoked the analogy of an assembly line in identifying a systemic procedural fairness concern in the conduct of residential tenancies proceedings:

… the evidence of nineteen hearings being conducted on January 2, 2024, left me with the impression that the hearings were carried out as if they came before the hearing officer on an assembly line, with time limits for each hearing. If this impression is accurate, then it further signifies a denial of procedural fairness. …

(Bell v Mainstreet Equity, 2024 SKKB 68, para. 26)

In Ontario, the way in which the LTB has structured its virtual hearings has made it so many tenants don’t have an equal opportunity to even load their concerns onto the line. Far from representing a measure to enhance access to justice and efficiency, virtual hearings have been a source of significant unfairness and inefficiency in the adjudication of residential tenancies disputes.

Plainly, what may work in one administrative law context might be deeply unfair in another. Tribunals such as the LTB would be well-advised to move from a virtual hearing by default model to one that gives participants an accessible opportunity to make an informed choice about their hearing format, and meaningfully considers parties’ choices and needs in deciding how a matter will proceed.

We understand that you don’t write the rules for the LTB or the other tribunals we mentioned, but because your views are so respected and influential in this field, we hope you will keep in mind that people of low income, of whom there are many, are not reaping the benefits you described. The transformation of administrative law adjudication is having severe consequences for them.

This content has been updated on July 29, 2024 at 19:02.