|
Crown Liability - Administrative Tribunals. D’Angelo v. Landlord and Tenant Board
In D’Angelo v. Landlord and Tenant Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed two HRTO JRs, this where the applicant filed complaints "under the Human Rights Code ... against the Landlord and Tenant Board (LTB) and two of the LTB adjudicators who dealt with the Applicant’s proceedings under the Residential Tenancies Act" (that is, the HRC complaint seems to have been made against the LTB as a tribunal and it's adjudicators themselves).
The court considers the immunity of a tribunal (here the LTB) against being named as a respondent in an HRTO application:[11] The HRTO dismissed the Application. It concluded that it had no jurisdiction to consider the Application as against the LTB, the Adjudicator and the Vice Chair of the LTB, because any claims against the LTB must be pursued through the appropriate judicial channels, either by statutory appeal under s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA) or by application for judicial review.
[12] This decision of the HRTO is consistent with previous decisions confirming that the HRTO has no jurisdiction to review the decisions of the LTB. See, for example, Peever v. Landlord and Tenant Board, 2023 HRTO 1539; King v. Landlord and Tenant Board, 2025 HRTO 3150; Fernandes v. Landlord Tenant Board, 2025 HRTO 3078. The HRTO has consistently held that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: see Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115.
[13] In Peever, the HRTO relied on the decision of the Superior Court in Daly v. Landlord and Tenant Board, 2022 ONSC 2434 (affirmed by the Court of Appeal in 2023 ONCA 152), which found that the LTB could not be sued except by way of judicial review or the extraordinary remedies of certiorari, mandamus and prohibition.
[14] Technically, a proceeding before the HRTO is not the same as a civil suit, and it is theoretically possible for the legislature to give the HRTO supervisory authority over other provincial tribunals, but it is clear from the Human Rights Code, R.S.O. 1990, c. H. 19 that the HRTO has no such jurisdiction. As the HRTO explained in Peever, at paras. 18 - 21:I note that my determination that the Tribunal has no jurisdiction to consider the Application is further supported by the provisions of the Code itself. The Code defines who is a “person” and who therefore may be a party to an Application under section 36.
Pursuant to section 46 of the Code, the term “person,” in addition to the extended meaning given it by Part VI (Interpretation) of the Legislation Act, 2006, includes an employment agency, an employers’ organization, an unincorporated association, a trade or occupational association, a trade union, a partnership, a municipality, a board of police commissioners established under the Police Act, being chapter 381 of the Revised Statutes of Ontario, 1980, and a police services board established under the Police Services Act.
Part VI (Interpretation) of the Legislation Act, 2006 extends the definition of “person” to include a corporation.
Notably, neither the definition of “person” under the Code nor the extended meaning given it by the Legislation Act, 2006 includes a tribunal or cluster of tribunals.
Moreover, section 36 of the Code sets out who the parties to an Application are. With the exception of the Ontario Human Rights Commission, each party is described as a “person.” As the respondents are not “persons,” they cannot be parties to an Application. [15] This conclusion does not, as argued by the Applicant, insulate the LTB from scrutiny if it fails to consider disability-related needs. Pursuant to s. 210 (1) of the RTA, a party to an LTB proceeding has the right to appeal a decision of the LTB on a question of law. In addition, a party may also bring an application for judicial review: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. Either (or, as in this case, both) proceed to the Divisional Court, which may consider any allegation that the LTB failed to appropriately accommodate a party to the proceeding.
[16] Indeed, that is exactly what the Applicant did in this case: D’Angelo v. Dahmer, 2026 ONSC 1428. The Applicant appealed and sought judicial review of the LTB decision that was also the subject of her complaint before the HRTO. That was her opportunity to raise any concerns about the LTB process. The Divisional Court held, at para. 10, that there was no procedural unfairness in the hearing before the LTB and dismissed her appeal and application for judicial review. The Court stated, at para. 12:We also note the pattern of litigation conduct by Ms D’Angelo, which has included multiple applications to the LTB, a claim to the Small Claims Court, and a claim to the Human Rights Tribunal, all arising out of the same events. Pursuing so many proceedings in respect to the same, or overlapping issues, is a sign of vexatiousness. [17] It is an abuse of process to ask the HRTO to consider the same LTB decision that was reviewed by the Divisional Court. . Daly v. Ontario (Landlord and Tenant Board)
In Daly v. Ontario (Landlord and Tenant Board) (Ont CA, 2023) the Court of Appeal considered the 'sue-ability' of the LTB (an administration tribunal) and the Crown itself, both in the context of an lawsuit by a aggrieved tenant:[6] In her submissions, the appellant does not directly address either of the grounds upon which the motion judge reached his decision. In any event, there is no error in the motion judge’s conclusion on either of those grounds. The LTB is not a suable entity. Moreover, s. 232(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 makes clear that no proceeding for damages can be commenced against members of the LTB who have exercised their duties in good faith. These principles have been confirmed by this court: Raba v. Landlord and Tenant Board, 2014 ONSC 2599, at paras. 5-10, aff’d 2014 ONCA 864, at para. 1. The appellant’s attempt to distinguish Raba does not succeed. While we note that the appellant raised the constitutionality of s. 232(1) of the Residential Tenancies Act in her fresh as amended statement of claim, that challenge was not properly brought, it was not dealt with by the motion judge, and it is not the subject of this appeal.
[7] Similarly, the Crown is not liable for anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 9(2)(b). The relationship between the Crown and members of quasi-judicial boards and tribunals exercising an adjudicatory authority derived from statute is outside the ambit of vicarious liability: see Speckling v. Kearney, 2007 BCCA 145, at para. 4.
|
