Abuse of Process (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1895
Page Categories:	[Interference of Reasonable Enjoyment (LTB)], [Category:Hearing Process (LTB)]
Citation:	Abuse of Process (RTA), CLNP 1895, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2022/03/25

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TSL-73760-16-IN2 & TST-74210-16-IN2 (Re), 2017 CanLII 28587 (ON LTB)

13. The doctrine of abuse of process is relevant in this case. That doctrine has been explained in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77, 2003 SCC 63 (CanLII) as follows:

35 Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at p. 616), and as “oppressive treatment” (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007:

. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.

36 The doctrine of abuse of process is used in a variety of legal contexts. The unfair or oppressive treatment of an accused may disentitle the Crown to carry on with the prosecution of a charge: Conway, supra, at p. 1667. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44 (CanLII), this Court held that unreasonable delay causing serious prejudice could amount to an abuse of process. When the Canadian Charter of Rights and Freedoms applies, the common law doctrine of abuse of process is subsumed into the principles of the Charter such that there is often overlap between abuse of process and constitutional remedies (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411). The doctrine nonetheless continues to have application as a non-Charter remedy: United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21 (CanLII), at para. 33.

37 In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63 (CanLII))). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute

14. The court’s comments echo the SJTO common rules and the Board’s Rules of Practice. I find that the Tenant’s refusal to follow the Board’s procedural directions undermines the Board’s integrity and proper administration of its hearings. This behaviour is an abuse of process.

TSL-06175-10-RV (Re), 2010 CanLII 65490 (ON LTB)

1. This is a request for review where the sole ground for the review is that the Tenant was not reasonably able to participate in the proceedings before the Board. After the request for review was filed by the Tenant, but before the Board issued its interim order staying the enforcement of the order, the Court Enforcement Office (Sheriff) enforced the order and evicted the Tenant. As a result, at the beginning of the hearing the Landlord raised a preliminary issue concerning the Board’s jurisdiction to order the Tenant back into possession should the request for review be granted. In part this issue was raised because after the stay order was issued, the Landlord entered into a new lease for the rental unit which is scheduled to commence on October 15, 2010 (but at the current moment the rental unit is vacant).

2. The parties before me conceded that the case law presented by the Landlord with respect to the Board’s jurisdiction to order a tenant back into possession once a writ of possession or Board order has been executed is divided. It is also old in that all of the case law presented was under the former Landlord and Tenant Act (401701 Ontario Ltd. v. Aronow, 1992 CarswellOnt 2754 (Div.Ct.)) or the Tenant Protection Act, 1997 (MTHA v. Ahmed, [2001] O.J. No. 1477 (Div.Ct.)). It was also agreed between the parties that neither the Residential Tenancies Act, 2006 (the ‘Act’), or the Board’s Rules explicitly address the issue.

3. As I stated at the hearing, I believe that this issue is primarily one of logic. If a review is granted, which the parties before me both agree the Board has the power to do, then the order that was issued is set aside and becomes a legal nullity. This means that at that point in time the tenancy has legally not been terminated. If the tenancy was not terminated then the Tenant must have the right to possess the rental unit as that is a right that goes along with the tenancy agreement. From a pragmatic point of view, it seems to me that the only time this would not be the logical result of the granting of a review where the Sheriff has executed the order for possession, is where there is a new sitting tenant in the rental unit. I say this because in that scenario, ordering the Tenant back into possession would be physically impossible unless the tenancy of the new tenant is terminated and the Act very clearly does not contemplate such an event occurring.

4. The Landlord’s representative argued that Ahmed should be interpreted as meaning that the Board may only contemplate ordering the Tenant back into possession in order to prevent an abuse of process pursuant to subsection 23(1) of the Statutory Powers Procedure Act. I would agree with that statement but I would not agree with his narrow interpretation of the concept of “abuse of process”. Essentially the Landlord argued that “abuse of process” meant that the Tenant would have to establish the Landlord did something underhanded or unfair along the way. I am of the view that the wording of subsection 23(1) makes it clear that the provision is designed to give the Board the power to prevent any abuse of process, not merely one caused by the opposing party. It seems to me that if a party is deprived of the reasonable right to a hearing for reasons beyond his or her control, then that in and of itself would be an abuse of process as it is a flagrant denial of the right to natural justice. So where a Tenant can successfully argue on a review that he was not reasonably able to participate in the hearing, and the order has been enforced by the Sheriff but the unit remains vacant, I believe that the Board does have the jurisdiction to order that Tenant back into possession once the review is granted in order to prevent an abuse of process.