Talk:Equitable Set-Off (Limitations)

TSL-16165-AM (Re), 2009 CanLII 51179 (ON LTB)

36. In the Tenant’s written submission and at the hearing before me, the Tenant’s solicitor raised the argument that the Landlord’s application should be dismissed by application of the doctrines of res judicata or some other form of issue or action estoppel. As I stated at the hearing, the Board is not a court of equity or common law. The Board’s authority lies strictly in its constituent statute. As a result, the Board is not required to strictly apply common law or equitable doctrines that apply to court proceedings. However, subsection 23(1) of the Statutory Powers Procedure Act (the ‘SPPA’) states: “A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” The SPPA clearly applies to proceedings before the Board and I believe that subsection 23(1) is intended to give an administrative tribunal the power to consider issues of abuse of process. I am of the view that the doctrines of res judicata and estoppel were specifically developed by the courts to prevent abuses or process and as a result, the case law concerning those doctrines is relevant to the proceedings before the Board pursuant to subsection 23(1) of the SPPA. In addition, section 83 of the Act specifically states that the Board may refuse an application for eviction, even where a landlord has established it is entitled to termination of the tenancy, unless it would be unfair to do so. Finally, the Tenant filed with the Board the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), 2003 CarswellOnt 4328. That decision does not discuss why a labour arbitrator has the jurisdiction to apply equitable or common law doctrines, but clearly indicates the Court was of the view the law was applicable to proceedings before an arbitrator. As a result, I am satisfied I have the jurisdiction to hear the Tenant’s argument on this point and I permitted both parties to make post hearing submissions concerning the estoppel argument.