Nature of the Motion

[1] Ms. Talaat (the “landlord”) seeks an order that the Certificate of Stay issued by the Registrar of the Divisional Court on July 22, 2014 be lifted in order to allow enforcement of the final order of the Landlord and Tenant Board (the “Board”) dated July 11, 2014, which is the subject of the herein judicial review application. The final order requires that Mr. Weidenfeld (the “tenant”) pay the landlord the sum of $11,572.86 on or before July 22, 2014 in order to continue the tenancy.

[2] Second, the landlord seeks to have the tenant's Application for Judicial Review dismissed, or alternatively, by amended Notice of Motion dated September 24, 2014, the landlord seeks an order requiring rental arrears and ongoing rent to be paid pending an expedited return date for the application, with the sanction of dismissal if the tenant fails to comply.

The Facts

[3] The landlord and tenant entered into a lease agreement commencing September 10, 2008. The tenant began to withhold the monthly rent starting on June 1, 2013 as a result of unresolved maintenance and noise disturbance issues.

[4] The landlord commenced an arrears application to evict the tenant for non-payment of rent, which came before the Board on December 2, 2013 (the “First Arrears Application”). On the hearing date the tenant raised maintenance issues, resulting in the Board member adjourning the hearing for the purpose of disclosure by the tenant of those issues. The Board member also made an interim order for payment of rent to the landlord by the tenant during the adjournment period, in the total amount of $1,628.98. That order prompted the tenant to commence a Judicial Review Application (the "First Judicial Review Application"). The First Judicial Review Application resulted in the Registrar of the Divisional Court issuing a Certificate of Stay. As a result, on the return date of January 6, 2014, the Board refused to hear the merits of the First Arrears Application and adjourned the matter without setting a return date, pending the resolution of the First Judicial Review Application.

[5] On May 30, 2014 the landlord filed another application (the “Second Arrears Application”), which came before the Board on July 2, 2014. The Second Arrears Application addressed the non-payment of rent during the same period of time as the First Arrears application, plus an additional three months. The tenant took the position that the Board member had no jurisdiction to hear the Second Arrears Application while his First Judicial Review Application was pending in the Divisional Court. As a result, the tenant declined to raise maintenance and other issues pursuant to section 82 of the Residential Tenancies Act, 2006, C. 17, as amended, as he did not wish to jeopardize his First Judicial Review Application. The member urged the tenant to speak with duty counsel, which he did. The member then rejected the tenant's jurisdictional argument and held the hearing on the evidence then before her. That hearing resulted in the final order of July 11, 2014.

[6] On July 16, 2014 the landlord withdrew her First Arrears Application.

[7] The tenant sought a review of the final order, which was considered by the Board and dismissed without holding a hearing by way of order dated July 21, 2014.

[8] On July 22, 2014, the tenant filed his Second Judicial Review Application with the Divisional Court in respect of the final order. On the same day, the Registrar of the Divisional Court issued a Certificate of Stay of the Board's final order.

[9] It is this Second Judicial Review Application and the resulting Certificate of Stay which are the subject matter of this motion.

The Tenant's Position

[10] The tenant argues that both of his Applications for Judicial Review were brought to redress procedural unfairness and denial of natural justice at the Board level, that judicial review is available to him under s. 2 of the Judicial Review Procedures Act, R.S.O. 1990, C. J.1, and accordingly he has followed an appropriate procedure in the circumstances. He argues that there is no requirement that he exhaust appeal remedies prior to commencing such an application, and that further, an appeal would not be available to him with respect to the interim order made by the Board on December 30, 2013. The tenant further argues that, substantively, an appeal would raise the same issues as his Applications for Judicial Review and therefore this court should not be swayed by a "form over substance" argument to quash the application on that basis. Finally, and central to his argument, the tenant argues that the Board's decision to hear and make a final order in the context of the landlord's Second Arrears Application, while his First Judicial Review Application was still pending before the Divisional Court, was an error of law. The tenant advances other grounds for his Second Judicial Review Application, namely reasonable apprehension of bias on the part of the member, and failure to consider the evidentiary basis of his argument that he was entitled to a rent abatement or damages.

Lifting of the Stay

[11] The Certificate of Stay issued on July 22, 2014 was made by the Registrar pursuant to s. 25(1) of the Statutory Powers Procedure Act (“SPPA”), R.S.O. 1990, c. S.22.

[12] Section 25(1) of the SPPA provides:

25.(1) An appeal from a decision of the tribunal to a court or appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise.

(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2(1) of that Act is not an appeal within the meaning of subsection (1).

[13] Accordingly, there is no automatic stay of the order of the Landlord and Tenant Board under the SPPA as a result of the commencement of an application for judicial review. The Registrar was therefore in error in issuing the Certificate of Stay and, accordingly, the Certificate of Stay must be set aside.

Application for Judicial Review

[14] The moving party seeks to have the Second Judicial Review Application dismissed on two grounds:

(i) On the basis that the tenant has failed to exhaust alternative remedies, namely, his appeal rights under the Residential Tenancies Act;

(ii) Pursuant to Rule 25.11 of the Rules of Civil Procedure, on the grounds of being frivolous, vexatious and an abuse of process, or pursuant to Rule 1.04(1) and (1.1.) on the basis that it lacks merit.

Judicial Review versus Appeal

[15] The test on a motion to quash is whether it is plain and obvious that the application cannot succeed: Deeb v. Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014 (Div. Ct.), at para. 23, citing Adams v. Canada, 2011 ONSC 325 (S.C.J.). The Divisional Court in Deeb noted that there are two elements to this inquiry: (i) is there jurisdiction to hear the application under section 2(1) of the Judicial Review Procedure Act, and (ii) even if there is, should the application be quashed because it is premature?

[16] Section 210 (1) of the Residential Tenancies Act provides:

210.(1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

[17] As argued by the tenant, the Judicial Review Procedure Act specifically provides that judicial review is still available despite the statutory appeal right in the Residential Tenancies Act. Section 2(1) of the Judicial Review Procedure Act provides:

2 (1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of the statutory power.

[18] Despite that legislative provision, the case law emanating from the higher courts dictates that the prescribed statutory regime must be exhausted before the remedy of judicial review may be invoked, absent exceptional circumstances. In Volchay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, in a unanimous decision of the Court of Appeal, Laskin, J.A. wrote:

[68] The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.

[69] The rationales for this principle are well known. The principle respects administrative decision-making and the legislature's intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationales for the principle in C.B. Powell at paras. 31-32, and I can do no better than quote his words:

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker's findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.].

See also David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pp. 485-494, and Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.).

[70] In my view, this principle applies even though s. 2(1) of the Judicial Review Procedure Act provides that an application for judicial review may be brought "despite any right of appeal" to either an administrative tribunal or to the court. The ability to bring an application for judicial review does not compel the court to undertake judicial review - exceptional circumstances are still required to justify early intervention.

[19] Similarly, in Association for the Protection of Amherst Island v. Director of Environmental Approvals, 2014 ONSC 4574 (Div. Ct.), at para. 50, the court cited Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3 in stating:

[50] In Canadian Pacific Ltd. v. Matsqui Indian Band, the Supreme Court of Canada held, on an appeal of a motion to strike a judicial review, that it was part of a proper exercise of the discretion of the motions judge to consider the adequacy of an appeal that was available and, having done so, to refuse to allow the matter to proceed to a judicial review in advance of such an appeal.

[20] The tenant has raised no exceptional circumstances that would justify departing from the statutory regime to permit judicial review to be heard in advance of an appeal. Further, the tenant is incorrect to equate an appeal with judicial review by his argument that, in his case, the same substantive matters would be dealt with despite the route taken. The test on appeal of a matter of law is strictly whether the decision is correct, whereas, as set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 45-51, the standard of judicial review may be one of either reasonableness or correctness, depending on the circumstances. As stated at para. 51 of Dunsmuir:

[51] Having dealt with the nature of the standards of review, we now turn our attention to the method for selecting the appropriate standard in individual cases. As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness.

[21] Without deciding whether the member was determining a question of law of the type described in Dunsmuir that would attract the correctness standard when she decided that the First Judicial Review Application did not have to run its course before she determined the Second Arrears application, the above passage makes clear that the same standard of review may not apply to both procedures. The Residential Tenancies Act, however, in prescribing a right of appeal on a question of law only, sets out a statutory alternative that, according to Matsqui, C.B. Powell and Volchay, must be taken in the absence of exceptional circumstances. The tenant’s argument that the Board member erred in law in allowing the Second Arrears Application to go forward does not raise exceptional circumstances warranting judicial review, and in fact, suggests that an appeal would have been the more suitable route to address such alleged error.

Merits of the Judicial Review Application

[22] Some of the bases advanced by the tenant in his judicial review application are clearly without merit and so can be dealt with expeditiously. First, his allegation that the Board member’s written decision raised a reasonable apprehension of bias by providing legal advice to the landlord is completely faulty, as the member’s statements cannot reasonably be seen as purporting to provide legal advice. They are, instead, statements of her understanding of the applicable legal procedure.

[23] Second, the tenant alleges that the member erred by preventing him from “presenting uncontested evidence of the landlord's breach of contract which could have justified not only abatement of rent but also significant punitive and/or exemplary damages in accordance with and pursuant to the Frustrated Contract Act". At the hearing on July 2, 2014, the tenant specifically declined to raise any issue that could be the subject of a tenant application under the Residential Tenancies Act, as permitted by s. 82 of that Act. The tenant’s own erroneous belief that he could not move forward on the Second Arrears Application, even to pursue his own remedies, does not itself give rise to a basis for judicial review, especially where he was provided with legal advice prior to taking such a position. Further, the tenant’s remedies are limited to those prescribed by the Residential Tenancies Act, which do not include punitive and/or exemplary damages.

[24] Third, an order for payment of rent arrears and potential eviction does not violate a s. 7 Charter right. I agree with the landlord's counsel that the tenant was given the opportunity for a full and fair hearing, but declined to participate, has exercised his right to seek a review of the resulting order, has brought a Judicial Review Application and obtained a stay, so that in the result there has been no deprivation of life, liberty or security of the person.

[25] The only argument raised by the tenant that merits some consideration is whether the Board member erred in law by making a final determination of the Second Arrears Application when the First Judicial Review Application was still pending. Although he argued that it is a matter of res judicata, that principle does not apply because the First Arrears Application had never been heard on the merits and no final order had ever been made. However, there are two reasons why such an argument must fail. First, the First Judicial Review Application should never have been brought, for the same reasons outlined above that explain why the Second Judicial Review Application should not have been commenced. Further, the merits of that First Judicial Review Application are even weaker. As previously stated, it was commenced in response to an interim order requiring payment of money. As Dunsmuir makes clear, an order made by a decision maker in the context of a discrete and special administrative regime in which the decision maker has special expertise, where no question of law has been decided that is of central importance to the legal system, should be given deference and the reasonableness test applied [para.55]. That interim order was one of discretion, was not unreasonable in the circumstances of months of unpaid rent, and if found to be unwarranted after the full hearing scheduled for the following month, could have been remedied through an accounting. Second, there is no common law authority for the argument that the landlord must wait for the First Judicial Review Application to run its course before seeking a final determination on the merits of its application for eviction. The member had jurisdiction to hear the landlord’s application under the Residential Tenancies Act; the fact that the tenant objected to the procedure that led to an interim order requiring him to pay two instalment payments pending a return date should not tie the hands of a landlord who wishes to move forward with the larger question of significant unpaid rent, nor should it tie the hands of the tenant who wishes an abatement due to non-repair. The tenant argues that if such a step is allowed, serial applications could be made by landlords who would be “member shopping” to find a tribunal constituted by a sympathetic member, potentially resulting in multiplicity of proceedings and conflicting outcomes. This argument overlooks the fact that the only reason that a Second Arrears Application was commenced and permitted to be heard was because of the tenant’s own actions in obtaining a stay of the First Arrears Application. Absent that stay, the Second Arrears Application could not have been commenced or considered, as that would have otherwise resulted in a multiplicity of proceedings. Following any future lifting of that stay, the issue of duplication and divergent outcomes could be addressed, if necessary.

[26] Applying the test set out in Deeb, this court finds that the herein Application for Judicial Review must be quashed both because it is premature, having been commenced prior to an appeal, and because it is plain and obvious to this court that none of the grounds advanced in the tenant’s Application will succeed.

[27] Accordingly, this court orders:

The Certificate of Stay issued by the Registrar of the Divisional Court on July 22, 2014 shall be lifted forthwith; and
The tenant’s Application for Judicial Review commenced on July 22, 2014 is dismissed.
The tenant’s approval of the form and content of this order is hereby dispensed with.

[28] The order dispensing with the tenant’s approval of the formal order is being made at the request of the landlord’s counsel. In light of some of the unreasonable steps and positions taken by the tenant before the Board, this court wishes to pre-empt any possibility of further delay and finds such an order appropriate in the circumstances.

[29] If the parties are unable to reach an agreement as to costs, they may make written submissions not exceeding 3 double-spaced, typed pages, to be submitted through the offices of the judicial assistants in Barrie. The landlord’s submissions are due by November 28, 2014, the tenant’s by December 5, 2014, and any reply, if necessary, by December 10, 2014.

HEALEY J.

Released: November 10, 2014

Robert Weidenfeld v. Ami Talaat and Ontario Landlord and Tenant Board, 2014 ONSC 6520

Case Summary

Nature of the Motion

The Facts

The Tenant's Position

Lifting of the Stay

Application for Judicial Review

Judicial Review versus Appeal

Merits of the Judicial Review Application

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2