Res Judicata (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1542
Page Categories:	[Legal Principles]
Citation:	Res Judicata (RTA), CLNP 1542, <https://rvt.link/b7>, retrieved on 2024-11-24
Editor:	MKent
Last Updated:	2024/03/08

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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.

TNL-38406-12 (Re), 2013 CanLII 6309 (ON LTB)

56. The doctrine of res judicata (or issue estoppel) is intended to bring finality to litigation, so that parties may not re-litigate matters that have already been decided by a court of competent jurisdiction.

57. The key principles governing the doctrine of res judicata as decided by the courts of Canada are:

a) The question to be decided in the second proceeding must be the same question that has been decided in the first proceeding.

b) The question decided in the first proceeding must be fundamental to the decision in the first proceeding, not collateral to the decision.

c) The same parties, and their privies, cannot relitigate the same question in a second proceeding.

d) The decision in the first proceeding must be a final decision on the question.

e) The decision in the first proceeding must be a judicial decision on the question

f) The decision-making forum in the first proceeding must have the jurisdiction to decide the question.

58. It was the Tenant’s position at the hearing, that because the criminal charges related to the allegations of assault, threatening and injury to an animal had been disposed of, the Board was estopped, by the doctrine of res judicata, from considering those issues in the Landlord’s application to terminate the tenancy.

59. While the criminal charges were disposed of on January 21, 2013 by the Crown withdrawing the charges, there was no judicial decision on the question of whether or not the Tenant had committed the illegal acts with which he was charged.

60. Consequently one of the basic requirements for establishing res judicata has not been met because there has been no judicial decision on the question by a court of competent jurisdiction.

61. The Tenant’s plea of res judicata must therefore fail.

TST-94817-18 (Re), 2019 CanLII 87014 (ON LTB)

15. I believe this application is barred by the doctrine of cause of action estoppel.

16. Cause of action estoppel precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings.

17. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621, which adopted the following passage from the case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):

In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, in which the parties, exercising reasonable diligence, might have brought forward at the time.

18. The criteria for cause of action estoppel, drawn from the decisions in Angle v. Minister of National Revenue, [1974] 2 S.C.R. 248 and Grandview (Town) v. Doering, supra, are:

i) there must be a final decision of a court of competent jurisdiction in the prior action;

ii) the parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;

iii) the cause of action in the prior action must not be separate and distinct;

iv) the basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

19. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before tribunal on the previous proceeding, but also issues that could have been decided had they been brought before that court/tribunal.

20. In this application, the Tenant seeks to recover rent he said was illegally collected by the Landlord, by requiring payment of GST/HST over the period from December 1998 to August 2, 2011.

21. In the application leading to the Lang order, the Tenant sought and recovered illegally collected rent for the period from the later period of March 1, 2014 to March 31, 2016.

22. Applying the criteria for cause of actions estoppel to this case yields the following: i) there is a final decision (the Lang order); ii) the parties to the application are the same ones that were involved in the previous application; iii) the cause of action in the previous application was not separate and distinct – in both applications the Tenant seeks rent said to have been illegally collected by the Landlord; iv) the basis of this application could have been argued/raised in the previous application with the exercise of reasonable diligence.

23. On this last aspect, as of the hearing leading to the Lang order on March 2, 2016, it was apparent that the Tenant was a residential tenant and he was being charged HST by the Landlord (as referenced in paragraph 2 of the Lang order). In this application, filed April 12, 2018, the Tenant seeks to recover the HST collected by the Landlord. In my view, the Tenant, with the exercise of reasonable diligence, and with the benefit of legal advice at that time (with DM attending the March 2, 2016 hearing leading to the Lang order), could have advanced his claim for HST against the Landlord in the first proceeding but he failed to do so.

24. Therefore, he cannot claim here what he could have at the first hearing before Member Lang if he had exercised reasonable diligence.

25. As such, the Tenant’s cause of action in this application is barred by the doctrine of cause of action estoppel. It will be dismissed.

Grewal v Piercey, 2020 CanLII 116541 (ON LTB)

Issues

2. This was the Landlord’s second application to evict the Tenants because she required the premises for her own residential occupation. The first was application CEL-87204-19, which was dismissed on September 10, 2019. After that application was dismissed, the Landlord served a new notice of termination on the same grounds, and filed the present application to evict the Tenants.

3. This application was heard on February 4, 2020. In its decision issued on March 6, 2020, the Board dismissed the application on the basis that it was barred by the principle of res judicata. The Landlord argues that this was an error.

4. Res judicata is the principle that a party may not litigate the same issue twice. If a court or tribunal of competent jurisdiction has already decided an issue between the parties, then the parties are bound by that determination. They may not bring new proceedings seeking a different outcome.

5. Res judicata only applies where an issue has been decided on its merits. Where an application is dismissed on procedural grounds, without the substance of the case having been decided, res judicata does not apply and the applicant is free to bring a new application once the procedural defects have been corrected (Barber v. McCuaig (2), [1900] O.J. No. 179; Golden Enterprises Ltd. v. Hammerling, [1978] M.J. No. 158; also the Canadian Encyclopedic Digest and the cases cited therein).

6. The Landlord in this case argues that the original application CEL-87204-19 was dismissed on procedural grounds, not decided on its merits, for two reasons. First, she argues that the application was procedurally defective, so the merits should not have been considered at all. Second, she argues that the central issue in the case was decided on the basis that she had not adduced certain necessary evidence, and that this constituted a dismissal on procedural grounds. Therefore, she argues that the merits of the case have not yet been decided and res judicata does not apply.

7. For the reasons that follow, I am not persuaded by either of the Landlord’s arguments. The review will be denied.

Was the first application procedurally defective?

8. The Landlord says that, in CEL-87204-19, she did not file an affidavit sworn by the person who intended to move into the unit, as required by subsection 72(1)(a) of the Residential Tenancies Act, 2006, SO 2006, c 17 (the 'RTA'). She also says that she did not pay the Tenant the compensation required by section 48.1 of the RTA.

9. Because of these two procedural defects, the Landlord argues that her application either was, or ought to have been, dismissed. She argues that the Board ought not to have gone on to consider the substantive question of whether she genuinely intended to move into the unit. She relies on the reasoning in CEL-75559-18-RV (Re), 2018 CanLII 88526 (ON LTB), in which the Board found that res judicata did not apply in a case where a Member dismissed an application on procedural grounds, but then still went on to consider the substantive merits of the case.

10. I am not persuaded by the Landlord’s argument. In its reasons for its decision in CEL- 87204-19, the Board made the following findings:

The Landlord provided an affidavit from herself, and her son, M.G., affirming that they intend to reside in the rental unit for a period of at least one year.

The Landlord offered to waive the rent owing for June 2019 as the compensation required under section 48.1 of the Act.

11. In other words, the Board made clear findings of fact that the procedural requirements for the application had been met. The Board then went on to consider the merits of the application.

12. I am not persuaded by the Landlord’s argument that the Board dismissed application CEL-87204-19 because the affidavit was not filed or because compensation was not paid. The Board’s reasons clearly state the contrary.

13. I am also not persuaded by the Landlord’s argument that the Board ought to have dismissed her application on procedural grounds. The Board made findings of fact that the procedural requirements of the application had been satisfied. Those findings have not been challenged on review or appeal.

Was the Landlord’s failure to call certain evidence a procedural defect?

14. To succeed in application CEL-87204-19, the Landlord needed to prove, on a balance of probabilities, that she genuinely intended to move into the Tenant’s unit. After hearing all the evidence that the parties chose to adduce, the Board made the following finding:

Based on the evidence before me, I am not satisfied that the Landlord, in good faith, requires possession of the rental unit for residential occupation.

[…]

I find based on the evidence before me, that it is likely that the Landlord intends to turn the rental unit into a rooming house once the Tenants vacate and does not intend to reside in the rental unit herself.

15. In reaching its conclusion, the Board weighed the evidence adduced by both parties. The Board considered that the Landlord did not testify, and that the only evidence in support of her application was hearsay testimony from her legal representative. The Board concluded that the evidence was insufficient to prove the Landlord’s case on a balance of probabilities.

16. The Landlord now argues that her testimony was necessary to her application, and that her failure to testify was therefore a procedural defect in her application.

17. I am not persuaded by that argument, either. The RTA does not contain any procedural requirement that a party testify in a proceeding. It was up to each party to decide what witnesses to call. The Landlord’s failure to testify was a litigation decision that she was entitled to make. The Board decided the substantive merits of the case on the evidence before it.

Result

18. The Board did not err in finding that the Landlord’s second application was barred by res judicata. The Landlord sought to prove the same claim that she had failed to prove in CEL-87204-19. It would have been grossly unfair to the Tenants to permit the Landlord to re-litigate a claim that had already been decided on the evidence.

19. Since I am not satisfied that the decision contains a serious error, the review will be denied.