i can be a little more specific.

the tenant alleges in the request for review that the application should have been dismissed pursuant to section 83 of the residential tenancies act, 2006.

this is incomplete - 83(3), precisely.

first, if the tenant did not raise the specific argument at the hearing, it should have and could have been and therefore is not properly considered on review (my emphasis). 

this is kind of a half-truth, as the adjudicator has specific responsibilities under s. 83. you don't get to get away with an error in law because nobody pointed it out before hand; it's still an error in law and still justifies a review. it's true that i can't change my argument in review. but, the law remains the law, regardless.

but, the conditional clause here is false, because i did raise the specific argument at the hearing, which is what i put up for review in the first place. and, i pointed this out in the review body in two different ways. short of presenting audio evidence from the trial - which i will need to do on appeal, apparently - there isn't anything more convincing that i could have done to demonstrate this. but, a request for review is just that. a verbal or written rebuttal of this sort should, in truth, be enough to get back in front of a judge; we then determine whether i did or did not raise the argument at this point by going over the evidence that was presented and by listening to the audio of the tapes.

to claim that if i didn't raise the argument then the review is improper is an almost true statement, granted. but, that's the question we're trying to determine: it's what the review is meant to come to an answer on. i claim i did raise the argument. so, the reviewer is supposed to get us back in front of a judge to figure it out.

her formal argument is in the form of:

1. x ----> y 
2. y

i don't dispute (1). but deducing (2) is a logical error because x has not been demonstrated, which is what the review is supposed to determine.

so, she's assuming the result of the review, rather than conducting it. and, that's misconduct on her behalf.


second, in paragraphs 21 to 23 the hearing member specifically turns her mind to the issue of section 83 and provides a detailed analysis.

see, now the fact that she dropped 83(3) previously is important, as this is a red herring - the discussion in 21 to 23 was about 83(1).


the hearing member has a broad discretion in issuing her order.

in fact, she does not. the case law is quite explicit that the clauses in 83(3) require hard stops. if there is any evidence that the action is being brought in retaliation, the adjudicator must dismiss - and she does not have discretion in balancing or weighing other interests against it. this is the importance of the evidence i've cited, which was ignored. and, it's the importance of this member being selective in the way she wrote her denial.

this board member obviously did not listen to the audio of the trial. she's essentially arguing from a point of ignorance, and making the assumption that the ruling was correct. then, she's producing very shoddy arguments to try and get to that predetermined conclusion.

i have no choice but to appeal.