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.

Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 3 SCR 77

(3) Abuse of Process

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, 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, 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)). 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. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]