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Abuse of Process - Administrative (2). Peel Standard Condominium Corp. No. 779 v Rahman
In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal, here where the trbunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)". In these quotes the court [Corbett J] considers whether the respondent acted in a vexatious manner, here during consideration of an abuse of process allegation by the appellant:[10] I see no basis for staying or dismissing Mr Rahman’s parking claims on the basis of abuse of process. The Tribunal has exclusive jurisdiction over the parking issue. It may be that other proceedings initiated by Mr Rahman constitute an abuse of process – bringing multiple proceedings in multiple courts or tribunals can be an abuse of process. However, even if it were found that Mr Rahman has been engaging in abuse of process, this would not disentitle him to a decision on the merits in a proceeding before a court or tribunal with jurisdiction. In this instance, the proper venue for a decision on the merits was the Tribunal, and it was no abuse of process to pursue these issues there.
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Issue 2: Abuse of Process
[25] Mr Rahman has commenced a proceeding before the Human Rights Tribunal, an action in the Superior Court, and multiple matters before the Tribunal. These other proceedings are not solely in respect to the parking issue, but all are connected to an over-arching allegation of harassment by the appellant, of which the allegations respecting the parking issue are alleged to be a part.
[26] As this court stated to the parties at the outset of oral argument, the conduct of the parties, towards each other and in pursuing multiple steps against each other, has been unreasonable. Both sides are to blame for this, but it appears that Mr Rahman’s conduct, as a party to conflict-resolution processes, has been egregious. During oral argument, Mr Rahman advised the court that he has brought, or will be bringing, legal proceedings against counsel for the appellant and against the Tribunal itself in the Superior Court. This court does not have these other proceedings before it. However, suing opposing counsel (who owes no duty to Mr Rahman), or purporting to sue an administrative tribunal (which has absolute adjudicative privilege), is a hallmark of vexatious litigation. And, even though Mr Rahman is in the right on this appeal, Mr Rahman’s conduct before this court was likewise vexatious in some respects.
[27] The usual consequence of acting vexatiously may be curtailment of unfettered access to the justice system. It is not, however, denial of justice itself in respect to matters properly before a court or tribunal.
[28] In the case at bar, Mr Rahman raised an issue with the Tribunal that is within the Tribunal’s exclusive jurisdiction – the parking issue. The Tribunal correctly concluded that it had jurisdiction over this claim and that it should not dismiss the claim simply because Mr Rahman was acting badly in conflict-resolution processes. Where an issue may be within the jurisdiction of more than one adjudicative body, it can be appropriate to stay or dismiss a proceeding in favour of the issue being decided elsewhere. Here, the Tribunal correctly concluded that the issue was properly before it and should be decided by it. I would not give effect to this ground of appeal.
[29] This does not mean that the parties can behave vexatiously before the Tribunal. These parties have consumed extraordinary and unacceptable Tribunal resources, and the Tribunal is entitled to control its own process to ensure that matters are pursued reasonably. In the first five months of 2023, alone, the Tribunal has issued the following decisions between these parties:2023 ONCAT 48
2023 ONCAT 46
2023 ONCAT 37
2023 ONCAT 36
2023 ONCAT 10
2023 ONCAT 9 But this is not all Mr Rahman, by any means. Both sides have acted unreasonably before the Tribunal. It is for the Tribunal to take the steps it considers appropriate to restore order and proportionality to the parties’ disputes before the Tribunal, and this broader issue is not before this court on this appeal. . Canada v. Bowker
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In this quote the court considers the 'location' of fairness violations in administrative law, particularly it's relation to abuse of process and the appellate standard of review:[16] In its most recent pronouncement on the subject, the Supreme Court has held that questions of procedural fairness are legal questions to be reviewed on the correctness standard: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328 (Abrametz), at paras. 26-30. The issue in that case was whether the Law Society’s conduct amounted to an abuse of process. While not every instance of procedural fairness amounts to an abuse of process, every abuse of process amounts to a breach of procedural fairness: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 151-155 (per Lebel J. dissenting, but not on this point). As a result, any debate as to whether questions of procedural fairness are questions of law reviewable on the standard of correctness – see Hussey v. Bell Mobility Inc., 2022 FCA 95, 2022 C.L.L.C. 210-052 at para. 24, Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at paras. 54-56 – has been put to rest. . Faruk v. The Landlord and Tenant Board
In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.
In this quote the court locates 'abuse of process', when occuring in an administrative context, with administrative fairness:[69] In administrative proceedings abuse of process is a question of procedural fairness.[Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (CanLII) at para. 38 referring to Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 105-107 and 121] ... . De Rose v. Windsor-Essex Catholic District School Board
In De Rose v. Windsor-Essex Catholic District School Board (Div Court, 2022) the Divisional Court considered a JR of an HRTO decision to stay a complaint as an abuse of process. In these quotes the court discusses abuse of process, here in a context of a labour grievance:[65] We start with the definition of an abuse of process. We accept the Applicant’s submissions that the doctrine of abuse of process is invoked only in the clearest of cases. Waterloo (City) v. Wolfraim, 2007 ONCA at para. 3. However, it is important to understand that the doctrine of abuse of process is broader than the principles of res judicata. Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
[66] In Canam Enterprises v. Coles, (2000) 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J. No. 4607 (C.A.), Goudge J.A. set out the following explanation of abuse of process.
[55] 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.).
[67] While Goudge J.A. was dissenting, the decision was appealed to the Supreme Court of Canada and this explanation of abuse of process was adopted by the Court when it adopted Goudge J.A.’s reasons in toto. See Canam, 2002 SCC 63.
[68] The doctrine of abuse of process can be invoked even in cases where there is no final decision. Indeed, in Waterloo, supra, the Court noted (at para. 4) that it was “not necessarily an abuse of process” to bring a subsequent action where, inter alia, the specific issue in the subsequent action was not decided by the Court in the earlier action (emphasis added). The corollary of this point is that, in some cases, it can be an abuse of process even where the specific issue has not previously been decided by the Court.
[69] Given the inherently flexible nature of the doctrine of abuse of process it can be used in cases where the specific issue has not finally been decided. As the Court noted in Waterloo, at para. 5:
[5] Overall, the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedures in a way that would be manifestly unfair to a party in the litigation or would in some way bring the administration of justice into disrepute. This case lacks those attributes.
[70] The HRTO has also grappled with the issue of the application of abuse of process in circumstances where there was a grievance process ongoing. While the Vice-Chair noted that there was no case directly on point, she did reference several cases that dealt with the interaction between grievance arbitration proceedings and HRTO applications. The two most relevant of those decisions are Nash v. Ottawa-Carleton District School Board 2012 HRTO 2299 and Cunningham v. Toronto District School Board, 2018 HRTO 1462.
[71] The Nash decision is particularly instructive. In Nash, the Vice-Chair found (at para. 17) that, although the grievance had been dismissed, no evidence has been called and no one had been cross-examined. The Vice-Chair went on to conclude (at para. 47) that there could be cases where abandonment of a grievance could be an abuse of process, although the case before him was not such a case.
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