Hennick v. Toronto Community Housing Corporation, 2006 CanLII 37413 (ON SCDC)

COURT FILE NO.: 37/06

DATE: 20061019

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, GROUND AND AITKEN, JJ.

B E T W E E N:

GAYLE HENNICK
Applicant

• and -

TORONTO COMMUNITY HOUSING CORPORATION and ONTARIO RENTAL HOUSING TRIBUNAL
Respondents

In Person
Anita A. John, for the Toronto Community Housing Corporation

HEARD at Toronto: October 19, 2006

LANE J.: (Orally)

1This is an application under s.2 of the Judicial Review Procedure Act in which the applicant seeks to quash the decision of the Tribunal Member, in which she held that the Tribunal would proceed to hear the merits of the case despite the applicant’s assertions that issue estoppel applied to prevent that result because of an earlier hearing.

2The whole matter arises from the application by the Toronto Community Housing Corporation to terminate the tenancy of the tenant based on her refusal to grant entry to the landlord in order that the fire alarms in the unit might be upgraded. It is alleged that this is conduct that substantially interferes with the reasonable enjoyment of the premises by the landlord and other tenants.

3It is said that the respondent Community Housing Corporation desires to upgrade the fire alarms because that is required by the Office of The Fire Marshall under the fire code regulations. Having been refused admission to the tenant’s premises, the landlord applied to the Tribunal for an eviction order. On November 23, 2005, the applicant asked the Tribunal to decline jurisdiction in respect of the application and to grant the applicant an order dismissing the application on the ground of issue estoppel.

4On December 30, 2005, the Tribunal issued an interim order finding that the Tribunal had jurisdiction to hear the landlord’s application. In her reasoning, the Member found that “while a prior application does raise similar issues, the issue in this application is fundamentally different in character (this application concerns a safety issue).”

5The applicant now applies to this Court to quash the decision of December 30, 2005, on the basis that the Member has misunderstood the law and that there is in fact an issue estoppel applicable to this case because of a consent judgment issued in 1996 as a result of an application brought by the landlord against the tenant to obtain access for the purposes of upgrading the heating system.

6The applicant has submitted to us that the Tribunal lost jurisdiction to proceed because of the issue estoppel raised by the prior proceedings. In our view, the application is premature. This Court interferes with a preliminary ruling made by an administrative Tribunal only where the Tribunal never had jurisdiction or has irretrievably lost it. This Tribunal is constituted with the exclusive authority to hear and determine all disputes between landlord and tenant and so it clearly has original jurisdiction. It has not lost that jurisdiction by making a decision on issue estoppel. It is the practice of the Court not to interfere with ongoing hearings in the Tribunals which we supervise, except in most extraordinary circumstances. The leading case is Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483, where the Court of Appeal said:

“In short, I agree with the Divisional Court that this application is premature. I think it is trite law that the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it”.

7In the case of Gage v. Ontario (Attorney General) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537, the Court found that the failure of the board of inquiry to provide a policeman with timely written notice of its decision to order a hearing into a complaint, was a denial of natural justice which resulted in a loss of jurisdiction. But that is not the case here, there is no denial of nature justice involved. In Sears Canada Inc. v. Davis Inquest (Coroner of) (1997), 102 O.A.C. 60, the Coroner ordered certain restrictions against the applicant prior to the commencement of the proceedings and the Court dismissed the application as premature. The Court said:

“…this court has repeatedly said that it will not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances…This approach is based on the reason that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips “up the judicial ladder”….The exception to this procedural deference is where an application for judicial review raises serious concerns, which, if they materialized, would likely result in a fundamental failing of justice.”

8With great respect to the submissions made by the applicant appearing on her own behalf, we do not see that there are considerations here and concerns which will result in a fundamental failing of justice. The Tribunal has decided a preliminary issue. It will go on and hear the merits and the entire matter will be open to appeal in due course, if it is necessary to have an appeal.

9There is a second issue. The applicant wants us to order the Tribunal to make a decision regarding certain matters of a preliminary nature that she has submitted to it. Counsel for the respondent states that the hearing of those matters has not been completed and is in suspense due to these proceedings and assures us that the hearing will be completed and the decision rendered promptly after these proceedings. In those circumstances it is not necessary for the Court to invoke its jurisdiction to direct the Tribunal to answer the questions.

10For these reasons, the application is dismissed.

11Having heard submissions as to costs, the Court directs that the costs of today will be fixed at $500.00, payable by the applicant to the respondent Corporation within 60 days.