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, <https://rvt.link/7->, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2023/09/06

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Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

23 (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. R.S.O. 1990, c. S.22, s. 23 (1).

Trindade v. Jantzi, 2021 ONSC 1927 (CanLII)

[26] Section 210(4) of the Residential Tenancies Act gives the Divisional Court the power to “affirm, rescind, amend or replace the decision or order” of the Board or “to remit the matter to the Board with the opinion of the Divisional Court”. In this case, in my view, the Court has all the facts necessary to decide the issue of abuse of process and, given the convoluted history of these proceedings and the need for finality, it is best for the Court to decide the issue.

[27] As held in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, at para. 36, the “doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings”. In Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at para. 16, the Court of Appeal emphasized that a multiplicity of proceedings raising the same issues does not necessarily give rise to abuse of process in all cases. A finding of abuse of process depends on the circumstances and context of the case.

[28] In my view, having regard to all of the circumstances of this case, the respondents’ application for rent abatement to the Board is an abuse of process.

[29] First, the issues raised in the application before the Board are identical to the issues raised by the respondents in the context of the application before the Court. In both contexts, the respondents claim that they should not have to pay the outstanding rent owed to the appellant because there was inadequate heat in the units. The appellant denies that the respondents ever complained about the heat issue and the respondents assert that they raised the issue repeatedly. In both the context of the Superior Court application and the application for rent abatement before the Board, there would have to be determinations about whether the heating was adequate, about the communications between the parties on the issue, and about by what amount, if any, the rent owed should be reduced. Allowing the issue to proceed before both the Board and the court would inevitably lead to duplicative proceedings and potentially inconsistent findings.

[30] Second, in the context of the application before the Board, the respondents are not seeking payment of any money. They have admitted to paying no rent except for $750.00. Rather, they are explicitly seeking a determination of the amount by which the rent owing should be reduced for the purpose of deducting that amount from any judgment made against them in the Superior Court. This is clear from the respondents’ application to the Board in which the respondents explicitly refer to the appellant’s application in the Superior Court and ask: “Is rent abatement possible towards the $55,000 she is suing me for”. As such, on its own, the respondents’ application to the Board has no utility. As admitted by the respondents, it is necessarily intertwined with the outcome of the Superior Court proceedings.

[31] Third, there is no ongoing tenancy. The respondents are not asserting a right to ongoing heat or other services. In fact, the respondents commenced the application to the Board after they had already vacated the units, and, as noted by the Board, they make no arguments that they were wrongfully evicted.

[32] As a general rule, there is no doubt that the Board or a court should be cautious before finding that it is an abuse of process for a party to bring an application before the Board even if there are parallel proceedings before the court. The Board is meant to be a less expensive and more accessible forum in which tenants or landlords can assert their rights. However, in the unique circumstances of this case, where the only apparent purpose of the respondents’ application before the Board is to shield against a judgment by the Court in proceedings in which the respondents can raise, and have raised, the same issues as before the Board, I have no difficulty in finding that the respondents’ application to the Board for rent abatement is an abuse of process.

[33] At the hearing of the appeal, the respondents’ counsel argued that all proceedings should be before the Board and not before the Superior Court. The stated rationale for this argument is that there were two tenancies and the monetary jurisdiction of the Board is not exceeded if the appellant’s claim were split in two. As indicated during the hearing, this argument was not properly before the Court. It was not raised before the Board and, in any event, the respondents did not appeal the Board’s decision and have no standing to seek additional relief in the context of this appeal. There is no basis for the Court to make the orders sought by the respondents. Finally, it appears doubtful that such an order could be made at this point because section 87(1) of the Residential Tenancies Act, 2006 only permits a landlord to make an application for rent arrears to the Board when the tenant is still in possession of the unit.

[34] Accordingly, in the unique circumstances of this case, I find that the respondents’ application to the Board for rent abatement is an abuse of process.

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.

EAL-47728-15-RV2 (Re), 2015 CanLII 51518 (ON LTB)

7. Section 23 (1) of the Statutory Power Procedures 1990 gives the Board jurisdiction, to make such orders as to prevent an abuse of process. Metropolitan Toronto Housing Authority and Ahmed [2001] O.J. No. 1477 states that a tenant can be put back into possession after an eviction where an abuse of process has occurred.

8. I am satisfied the Landlord abused the process by executing the Board’s order dated April 2, 2015 and evicting the Tenant through the Court Enforcement Office, when it knew or ought to have known, that the telephone message in regards to the March, April and May 2015 payments had not come to the attention of the Board member issuing the set aside order. Paragraph 5 of Order EAL-47728-15 sets out that the Landlord has yet to communicate the outcome of the cheques given to the Landlord. When the Landlord executed the April 2, 2015 Order, the determinations contained therein were materially incorrect at the time, resulting in substantial prejudice to the Tenant and the loss of her housing.

EAL-47728-15-RV2 (Re), 2015 CanLII 51518 (ON LTB)

Determinations

1. I am satisfied the Board seriously erred, by failing to exercise to set aside the exparte order issued April 2, 2015. The denial of the Tenant’s set aside motion on the basis that the Tenant did not pay rent for June 2015 is inconsistent with the oral directions given to the parties at the motion hearing on May 26, 2015.

2. I am also satisfied the Board’s order dated June 8, 2015 fails to consider the Tenant’s mental disability as a relevant circumstance under section 78 (11) (b) of the Residential Tenancies Act, 2006.

3. I also find that the Landlord engaged in an abuse of process of the Board’s proceedings by proceeding to enforce Order EAL-47228-15 dated April 2, 2015 and evict the Tenant knowing that this order contains incorrect findings with respect to payments received by the Landlord.

4. Any arrears owing by the Tenant, including the outstanding arrears from the order dated October 24, 2015 are suspended, until the Landlord has complied with this order.

5. Upon receipt of possession of the rental unit, the arrears owing for June, July 2015 and the balance owing from the order EAL-43423-14 dated October 24, 2015 are to paid to the Landlord no later than December 31, 2015.

CEL-41663-14-RV (Re), 2014 CanLII 76774 (ON LTB)

1. I am not satisfied that there was a serious error in the order or that a serious error occurred in the proceedings.

2. The Tenant has not established that the Member may have made a serious error in procedure, fact or law. The Member made her determinations and order based on the evidence presented at the hearing. Based on the assessment of the relevant evidence, the Member made reasonable findings regarding the Tenant’s failure to comply with the terms on a mediated settlement dated April 9, 2014, with respect to application CEL-389848-14. Moreover the Member reasonably applied her discretion to terminate the tenancy on October 31, 2014, a date requested by the Tenant.

3. However, I find that there has been an abuse of process in the Landlord’s attempt to enforce the order to terminate the tenancy. I find that the Landlord’s action in seeking to enforce an order to terminate a tenancy when the Landlord is no longer a landlord is an abuse of process.

4. Section 23 of the Statutory Powers Procedure Act provides that a “ tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent an abuse of process.”

5. I accept the Tenant’s evidence that the Landlord was no longer the Landlord of the property as at September 15, 2014. The Tenant testified that as of September 15, 2014, a new landlord, took over the property. At that point a new tenancy was created between the Tenant and the New Landlord, and the tenancy between this Landlord and the Tenant was terminated.

6. The finding of a new tenancy is supported by the fact that on or about October 2, 2014, the New Landlord served the Tenant with a Notice to End a Tenancy Early for Non-payment of Rent, Form N4, and thereafter on or about October 22, 2014, the New Landlord filed their own application with the Board for arrears of rent. By letter dated November 11, 2014, the New Landlord withdrew the application noting that the Tenant had paid all arrears owing.

7. The order stipulated that if the Tenant did not vacate by October 31, 2014, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.

8. The Landlord attended at the Court Enforcement Office (Sheriff) on or about November 19, 2014, and instructed the Court Enforcement Office (Sheriff) to have the eviction enforced and vacant possession of the rental unit. I note that the Notice to Vacate states that the order is being executed pursuant to the instructions of the Landlord. However, I find that the Landlord was not the landlord of the rental unit as at September 15, 2014, and therefore, cannot enforce the eviction part of the Order.

9. Order CEL-41663-14-SA issued on September 5, 2014, relates to a previous tenancy between the parties noted on the order. The eviction cannot be enforced against the Tenant by the Landlord when the Landlord is no longer the landlord. However, the Landlord may still enforce the monetary part of the Order by filing it with a court of competent jurisdiction for enforcement.

TEL-02563-10 (Re), 2010 CanLII 48853 (ON LTB)

19.  Sending the payment by Xpress post is no different from mailing it, in which case the payment was deemed to have been received 5 days later; and as such, the Notice would not have been voided. The Tenant will therefore be required to pay the $170.00 application filing fee.

Mohammad v Poorsarwar, 2021 CanLII 141996 (ON LTB)

1.     At the beginning of the hearing, the Tenant's Legal Representative submitted that the Landlord’s Application ought to be dismissed. She submitted that the Landlord’s Application to End a Tenancy and Evict a Tenant (the ‘L2 Application’) was filed with the Landlord Tenant Board (the ‘Board’) on December 23, 2020.

2.     She then directed me to the Landlord’s Certificate of Service for the Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit (the ‘N12 Notice’). The Certificate of Service stated that the N12 Notice was served on the Tenants via mail on December 24, 2020, therefore, after the Application was filed with the Board.

3.     The Tenant's Legal Representative submitted that the Landlord did not comply with the Board’s Rules of Procedure, specifically Rule 3.9, which states that documents are considered served on the fifth day after mailing. Since the Landlord mailed the N12 Notice, she argued that the N12 was therefore served on December 29, 2020, several days after the L2 Application was filed.

4.     Based on this, the Tenant's Legal Representative requested that the Board dismiss the Landlord’s Application for failure to serve the Tenants with notice in compliance with the Rules. The Tenant's Legal Representative supported this position with caselaw. 5.     The Landlord's Legal Representative submitted that the N12 Notice was served by Xpress Post and Normal mail on December 23, 2020. Based on this, he argued that the Tenants received the Notice within twenty-four hours, and therefore the N12 was served on the 23rd, despite the information in the Certificate of Service stating it was served on the 24th (...) 11.  In this case, the Application was filed with the Board on December 23, 2020. However, the Landlord’s own Certificate of Service states the N12 was served on December 24, 2020, therefore, after the Notice was served. This action does not comply with section 69 of the Act, never mind considering the five days required for service completed by mail, as the Landlord did.