Res Judicata (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1542
Page Categories:	[Legal Principles]
Citation:	Res Judicata (RTA), CLNP 1542, <33>, retrieved on 2024-11-23
Editor:	P08916
Last Updated:	2021/07/29

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CEL-75559-18-RV (Re), 2018 CanLII 88526 (ON LTB)

2. There is a serious error in order CEL-75559-18, issued on June 1, 2018. Although the Member’s determinations with respect to the issue of res judicata were reasonable, her decision that the circumstances did not warrant discretion against the application of res judicata was not reasonable and it is on that basis that the review request is granted.

3. The Supreme Court of Canada has determined that there is discretion to refuse to apply the doctrine of issue estoppel or res judicata in circumstances where injustice or unfairness may be the result (Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.J. No 46).

4. The Landlord filed a prior L2 application with the Board based on a N12 notice of termination. That N12 notice, with a termination date of March 31, 2018, states that the Landlord, his spouse and his child intend to move into the rental unit.

5. That application was resolved by order CEL-74230-18, issued on April 13, 2018. The Landlord’s prior L2 application was dismissed because the Landlord did not pay the Tenants one month’s rent as compensation as required by section 55.1 of the Residential Tenancies Act, 2006, (the ‘Act’).

6. Section 55.1 of the Act states:

If the landlord is required to compensate a tenant under section 48.1, 52, 54 or 55, the landlord shall compensate the tenant no later than on the termination date specified in the notice of termination of the tenancy given by the landlord under section 48 or 50.

7. Section 83.4 of the Act states:

The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 52, 54 or 55, as the case may be.

8. The hearing of the prior L2 application took place on April 4, 2018. As of that hearing date, the Landlord had not paid the Tenants one month’s rent as compensation. Since section 55.1 states that the compensation must be paid no later than the termination date in the notice of termination, which was March 31, 2018, the statutory requirements of section 55.1 of the Act were not met and the Board had no jurisdiction to terminate the tenancy due to section 83.4 of the Act.

9. The L2 application was dismissed due to the Landlord’s failure to meet the requirements of section 55.1 of the Act. That issue should have been dealt with as a preliminary matter without making findings on the substance of the issue in the application. The order determined that the Landlord was acting in good faith and required the rental unit for his own residential use. Those findings prevented the Landlord from filing another application with the Board to permit him to live in his own property even though he did comply with the requirements of section 55.1 of the Act in the second L2 application.

10. Similarly, if the notice of termination that the application is based on is not valid or if the affidavit required by section 72 of the Act is not provided, those issues are dealt with on a preliminary basis and no findings are made on the substantive issue so that a landlord is not prevented from filing another application on the same grounds after a valid notice of termination is issued or an affidavit is provided.

11. There was a procedural error made under the first L2 application since determinations should not have been made regarding good faith when the technical requirements for the application were not met. In effect, the findings made with respect to good faith barred the Landlord from ever applying for the same issue again even though the Member was satisfied that the Landlord had a good faith and genuine intention to live in the unit that he owns. In the circumstances, res judicata should not be applied and the second L2 application should be permitted to proceed now that the technical requirements under the Act have been met.

12. The Landlord owns the house that the rental unit is located in. He and his family used to live in it. He moved to make life easier for his son while he attended university in another City. The son is finished with his schooling and the family want to return to the family home. In the circumstances, it would be unfair and unjust to strictly apply the doctrine of res judicata since it would prevent the Landlord from ever being able to live in his property.

TSL-04224-19-AM (Re), 2019 CanLII 134284 (ON LTB)

1. On February 27, 2019 the Landlord served the tenants with an N13 seeking to convert the property back to its original use as a commercial property. The notice listed the termination date as June 30, 2019.

2. The Landlord has obtained all the necessary permits. There is no requirement under s. 73.1 for the landlord to pay compensation because the property has less than 5 rental units.

3. The Tenants allege that the Landlord is giving them notice in bad faith because he indicated to them previously that he could get much more for their rental unit than they are presently paying. The Tenants believe the Landlord simply wants to charge more rent. As evidence of this, the Tenants say the Landlord tried to evict them previously using an N12 which was dismissed by the Board because the Landlord admitted that he did not intend to reside in the property full time but intended to live in the rental unit part time or periodically when he and his wife visit Toronto. They live full time outside of the City a few hours drive away.

4. The Tenants also argued that the Landlord’s application should be dismissed because it is res judicata because of TSL-97116-18 which dismissed the Landlord’s N12. I disagree, paragraph 14 of that Order makes it clear that Member’s findings were not intended to bar any future applications by the Landlord in the event that any of his circumstances changed. The Member specifically says: “ My decision in this application does not prejudice any future finding about the Landlord’s use should the Landlord’s plans materially change.” Moreover, N12 and N13 applications require different factual assessments.

5. The Tenants submit that the mere fact that the Landlord has attempted to terminate the Tenancy in the past using an N12 is proof that he is acting in bad faith and likely wants them out so that he can re-rent the unit for more.

6. Interestingly the Landlord does not dispute the Tenants view that he wants to terminate the tenancy in part because they are not getting along.

7. The Landlord himself testified that the relationship has soured, and he has grown tired of having to travel into the City to attend “every single” complaint. He testified that he would rather board the entire property up and leave it vacant than deal with the constant complaints of the Tenants

8. As with an N12 application, I am not required to access the reasonableness of the Landlord’s plan, I need only determine if he has proven on balance of probabilities that he has genuine intention to undertake the conversion of the property as claimed on his N13. The fact that Landlord indicated not too long ago that he intends to move into the rental unit support a finding that he may have other reasons for wanting to terminate the tenancy but those reasons do not necessarily amount to bad faith.

TSL-92810-18 (Re), 2018 CanLII 120864 (ON LTB)

7. The lease between the parties is clearly subject to section 18 of the Act, which provides that covenants concerning things related to the rental unit run with the land, and are not therefore affected by a change in the landlord. Furthermore, the definition of “landlord” in section 2(1) includes successors in title.

8. I also find that the date for termination of the lease has already been determined by the Board in order TSL-79981-16 issued January 24, 2017. It does not matter that the Landlords have changed from that date or that this is a different notice: the same lease and the identical term of the lease concerning its termination is under consideration. The terms of an existing lease do not cease to apply merely because there has been a change in ownership.

9. When applying the maxim of res judicata, the overriding consideration is the avoidance of duplicative litigation and finality to litigation is the prime objective. The doctrine of res judicata has three elements: issue estoppal, cause of action estoppal, and abuse of process.

10. In Erschbamer v. Wallster, 2013 BCCA 76, the Court of Appeal for British Columbia provided a useful summary of the essential nature of each of the three doctrines of res judicata as follows:

“The general principles of the doctrine of res judicata were reviewed by this Court relatively recently in Cliffs Over Maple Bay. The doctrine has two aspects, issue estoppel and cause of action estoppel. In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters.”

11. In the present case, there exists a final decision at the tribunal in a previous application; the parties to the present action are “in privity” with the parties to the prior action (pursuant to section 18 of the Act); the cause of action (notice of termination to the tenancy) is not distinct from the previous decision; and the issue raised by the Landlord there (interpretation of the lease clause) is identical to the issue raised in the current application. While the Courts have also indicated that res judicata is a flexible doctrine that should not be applied in a rigid manner that results in an injustice, I see no reason not to apply it here

12. The Board has already determined in order TSL-79981-16 that the only permitted termination date for the tenancy that complies with the notice requirements in subsection 50 (2) of the Act is October 31 of the applicable year. Applying the maxim of res judicata, I find that this determination should be applied in the matter before me. As a result, I must find that the Landlord’s N13 does comply with subsection 50 (2) of the Act as it fails to specify a termination date of October 31, 2018.

13. I did consider the Landlord’s submissions concerning section 38 of the Act, as it was not specifically mentioned in order TSL-79981-16. The lease term clearly contemplates that this is a tenancy which automatically renews, “year-to-year” unless it is terminated. I do not see that sub-section 38 (1) therefore applies to this as there is no “fixed term” or end without positive action from either the Tenants or the Landlord. Likewise, I do not see that sub-section 38 (2) applies. Sub-section 38(3) speaks to a periodic tenancy – a form of tenancy which by common law definition continues indefinitely until terminated by either of the parties – but speaks to a situation in which it ends without having been renewed or terminated. I therefore do not see that this subsection applies either. I also do not see the absence of a deemed month to month tenancy pursuant to section 38 as problematic from a policy perspective. These parties voluntarily chose to enter into such an arrangement after having an opportunity to consider both the negative and positive aspects from each of their perspectives.

14. For the reasons stated, the N13 is invalid because it does not have a date of termination that is the end of the term of the tenancy. In the absence of a valid notice of termination, the Board cannot consider the Landlords’ application. The Landlords declined to withdraw the application.

15. The Tenant’s requested that I consider costs as the Landlord’s actions in bringing the application were unreasonable. The Landlord Tenant Board’s Interpretation Guideline 3, says that, generally, costs will be considered only where a party's conduct in the proceeding is unreasonable. I do not see this situation as so clear that the Landlord’s application was unreasonable. There will be no order for costs.