Court File and Parties

Court of Appeal for Ontario Date: 2023-03-02 Docket: C70725

Before: Pepall, Roberts and Nordheimer JJ.A.

Between: Julie Daly, Plaintiff (Appellant)

And: The Landlord Tenant Board, Mississauga and His Majesty the King in right of Ontario and the Attorney General of Ontario, Defendants (Respondents)

Counsel: Julie Daly, acting in person Brian Blumenthal, for the respondent, The Landlord and Tenant Board Karlson Leung, for the respondent, His Majesty the King in Right of Ontario and the Attorney General of Ontario

Heard: February 28, 2023

On appeal from the order of Justice Roger Chown of the Superior Court of Justice, dated April 19, 2022, with reasons reported at 2022 ONSC 2434.

Reasons for Decision

[1] Julie Daly appeals from the order of the motion judge who dismissed her claim for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms and other relief arising from several applications that she made to the Landlord and Tenant Board (“LTB”). These applications, the first of which was brought in 2011, concerned events surrounding her lease of various premises. The fresh as amended statement of claim, which was before the motion judge, sets out the appellant’s alleged experiences with the LTB and its members as these applications progressed. This appeal concerns the claims related to the LTB’s alleged conduct in considering Ms. Daly’s applications.

[2] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.

[3] This appeal concerns four applications, and a re-opening request for one of the applications, brought by the appellant before the LTB. The appellant brought the first application, which was allowed in part, in 2011 alleging that her landlord sexually harassed her, entered into her unit illegally, and substantially interfered with the reasonable enjoyment of her rental unit. Two applications in 2015 were resolved in full at a mediation hearing. The appellant sought to re-open these applications in 2017 on the basis that she was allegedly coerced into signing the mediation agreement. The appellant brought the final application in 2017, part of which was withdrawn. The final portion of the application, which alleged that Ms. Daly’s landlord failed to maintain the rental unit in accordance with health, safety, housing or maintenance standards, was allowed in part.

[4] The appellant commenced this action claiming that members of the LTB treated her improperly in a variety of ways and that they were biased. She sought damages in the amount of $800,000 under the Charter or, alternatively, general damages for misfeasance in public office and breach of trust, abuse of public office, and malicious breach of public duty. She alleged further that the Crown was vicariously liable for the actions of the LTB and its members. The respondents brought a motion pursuant to r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking to dismiss the appellant’s action or, in the alternative, striking the appellant’s claim in its entirety without leave to amend on the basis that the claim did not disclose a reasonable cause of action.

[5] The motion judge granted the motion and struck the appellant’s statement of claim in its entirety, without leave to amend. He gave thorough reasons for his decision. While there were several grounds raised before him, the motion judge restricted his decision to the fact that the LTB is not an entity that is capable of being sued and the Crown is not vicariously liable for the actions of the LTB or its members.

[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.

[8] We also reject the appellant’s claim that the motion judge was biased and ought to have recused himself. The appellant raised this issue before the motion judge and he dismissed it for reasons given. There is no merit to it.

[9] It is for these reasons that the appeal was dismissed. Neither of the respondents sought costs of the appeal. No costs are awarded.

“S.E. Pepall J.A.” “L.B. Roberts J.A.” “I. V. B. Nordheimer J.A.”