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Abuse of Process - Automatic Stay under the RTA. Thompson v. Homestead Land Holdings Limited.
In Thompson v. Homestead Land Holdings Limited. (Div Court, 2024) the Divisional Court quashed an appeal, here on grounds that none of the issues raised were 'questions of law' [as reqired by RTA 210(1)], and abuse of process.
With respect to the court, the 'first ground' arguments have been held to constitute questions of law, and the second and third grounds - which are quite thin on reasoning - appear vulnerable on a further appeal argument for inadequate reasons. While there may be an abuse of process argument against the tenant/appellant, this would not justify treating the grounds of appeal improperly - rather the court must decide clearly whether any abuse of process justifies effectively striking some or all of the grounds of appeal:[15] Mr. Thompson’s appeal is devoid of merit because it does not raise an issue of law.
[16] Questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), at para. 35.
[17] Mr. Thompson’s first ground – that “the Board/Landlord erred in law by ignoring relevant evidence, relying on irrelevant evidence and making findings in the absence of supporting evidence” – is a bald allegation that attacks the LTB’s evidentiary findings. It does not raise a question of law.
[18] Mr. Thompson’s second ground – that “the Board/Landlord breached procedural fairness by among other ways, improperly relying upon hearsay evidence in support of an absent landlord’s application with the board” – does not raise a question of law. The LTB is permitted to rely on hearsay evidence: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1).
[19] Mr. Thompson’s third ground – that “the Board/Landlord erred in law by falsifying documents and paperwork, to the board in favour of the landlord and the board failed to withdraw said documents and applications” – is a vexatious allegation that attacks the veracity of the evidence at the hearing. Mr. Thompson ought to have raised this allegation at the LTB hearing. This ground, too, does not raise a question of law.
[20] The appeal is quashed because it is devoid of merit. . Del Condominium Rentals Inc. v. Ahmed
In Del Condominium Rentals Inc. v. Ahmed (Div Court, 2023) the Divisional Court makes an abuse of process point, here in an RTA context:[6] An appeal that seeks solely to delay constitutes an abuse of process: Solomon v. Levy, 2015 ONSC 2556, at para. 34; Regan v. Latimer, 2016 ONSC 4132, at para. 25. . Mubarak v. Toronto Community Housing Corporation
In Mubarak v. Toronto Community Housing Corporation (Div Ct, 2021) the Divisional Court applied the 'gaming the system' abuse of process doctrine under the RTA:[24] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.
[25] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye, at para. 27. . Zhou v. Rama
In Zhou v. Rama (Div Ct, 2021) the Divisional Court held that a meritless RTA automatic stay was an abuse of process:[30] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the sole purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v. Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34. . Byfield v. Gill
In Byfield v. Gill (Div Ct, 2021) the Divisional Court applied abuse of process doctrine against a meritless RTA appeal:The appeal should be dismissed as an abuse of process
[23] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the sole purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34.
[24] In this case, the Tenants have persistently failed to pay their rent. At the time of the hearing before the Board, the Board noted that the Tenants had made a $3,500 payment in advance of the hearing, but at that time they still owed almost $7,000 in rent. By the time the Landlord served his motion record in December 2020, the outstanding rent was over $16,000. At the hearing, the Tenant advised me that rent payments had been made since then. The Landlord agreed that some payments were made but contested the amount. In any event, there was no dispute that a significant amount of arrears were still owing. In the circumstances, there is a clear pattern of non-payment of rent.
[25] The tenants commenced the appeal without stating any grounds of appeal and have taken no steps to perfect the appeal since it was commenced almost two years ago. They have a persistent pattern of non-payment of rent, only making payments when threatened by legal proceedings. In the circumstances, I am satisfied that the appeal is an abuse of process, brought for the purpose of obtaining an automatic stay of eviction without any intention to pursue the appeal on the merits. . Bon v. Hutchens
In Bon v. Hutchens (Div Ct, 2021) the Divisional Court held that an RTA appeal should be dismissed as an abuse of process when it is primarily filed for the purpose of getting the automatic stay:[18] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.
[19] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye, at para. 27.
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[22] Whether an appeal has merit appears not to be relevant to the issue of whether the appeal is an abuse of process: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 (Div. Ct.), at para. 25. ... . Oladunjoye v. Jonker
In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court held that filing an RTA s.210 appeal for the purpose of obtaining an automatic stay of eviction is an abuse of process:Abuse of Process
[26] I also quash the appeal as an abuse of process. The Jonkers are gaming the system; the purpose of the appeal is to stay the eviction and extend their rent-free existence, which is an abuse of process: Regan v. Latimer, 2016 ONSC 4132 (Div. Ct.) at para. 25 per Patillo, J.
[27] As held by Favreau, J. in Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34, “one of the key indicia that a party is trying to ‘game the system’ is a circumstance where the Tenant persistently fails to pay rent prior to and through the appeal period without any explanation for the failure to pay rent or any evidence of an intention to remedy the situation.” That is what we have here.
[28] The Jonkers have failed to pay any rent from the outset of the tenancy except for one of the past 14 months; they have not brought any evidence before this court to explain how they will pay the rent they owe; the LTB found that Mr. Jonker received CERB but failed to pay any of that money toward rent. Their rent-free existence has come at a high price for Mr. Oladunjoye who is unable to pay the mortgage and must sell the house as a result.
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