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Abuse of Process - RTA Remedial Route: LTB v Court

. Minas v. Adler

In Minas v. Adler (Div Court, 2022) the Divisional Court took a further crack at an earlier 'abuse of process' line of argument that they first tried in Trinidade v Jantzi. This abuse of process relates to the RTA 'remedial route' - ie. LTB or court. (Note: this line of AOP is different from the 'automatic stay on appeal' line, which also exists):
Abuse of Process

[44] In Trindade v. Janzi, the Divisional Court considered a situation where a Superior Court order terminated a tenancy. Subsequent to the entering of the consent order, an application was commenced at the Board for a determination that the RTA applied to the tenancy. The Divisional Court determined that the Board application was an abuse of process. 

[45] Writing for the court, Favreau J. (as she then was), stated at para. 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.
[46] Favreau J. then considered the unique aspects of Trindade v. Janzi. First, she found that the issues raised at the Board were identical to those raised in the Superior Court. Second, she found that no monetary remuneration was sought at the Board. Third, she found that there was no ongoing tenancy in Trindade v. Janzi. Accordingly, the Board proceedings were an abuse of process. 

[47] At para. 32, Favreau J. stated that:
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.
[48] In the case before us, the Member quoted the correct law and considered the evidence, including the Landlords’ putative forum shopping. On the aggregate, the Member found that the largely duplicative Board proceeding was not abusive in so far as the Board hearing was the most efficient use of the court’s time and the parties’ money. This view accords with the court’s view in Trindade v. Janzi. Further, the Member was correct when he found that, unlike Trindade v. Janzi, there was an ongoing tenancy in the matter being determined by him. As such, the factual matrix underpinning the finding of abuse of process in Trindade v. Janzi was not present in the instant case.

[49] Further, in this case, Dow J. effectively required the parties to attend before the Board when he stated:
To the contrary, it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant Board. If any claims for damages remain, this action seeks same and remains available…

The defendants’ decision to move back in, in my view, provides the best opportunity for the property to be properly maintained pending disposition of all of the disputes between the parties before the Landlord and Tenant Board.
[50] It is difficult to conceive of how a Board proceeding could constitute an abuse of process if the parties were being invited by the Superior Court to attend before the Board. 

[51] Given the foregoing, the Member did not err in law in his treatment of abuse of process. There is no basis for this court to interfere in his determination that the Board proceeding did not constitute an abuse of process despite the Tenant’s forum shopping in that the Board hearing was the most efficient process available to the parties.
[52] This ground of appeal is dismissed.


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Last modified: 11-12-22
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