COURT FILE NO.: CV-17-00005117 (Brampton) DATE: 20220419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Daly Plaintiff

-and-

The Landlord Tenant Board, Mississauga and Her Majesty the Queen in Right of Ontario and The Attorney General of Ontario Defendants

Julie Daly, acting in person Trevor Guy, for the LTB Karlson Leung, for the Attorney General of Ontario

Heard: February 16, 2022 by video conference Justice R. Chown

REASONS FOR DECISION

[1] The plaintiff sues the Landlord Tenant Board (“LTB”) and the Crown for alleged breaches of her Charter rights. She seeks damages under s. 24(1) of the Charter. In the alternative she seeks damages for misfeasance in public office, breach of trust, abuse of public office, and malicious breach of public duty.

[2] The defendants bring motions to dismiss the plaintiff’s claim or in the alternative striking her claim in its entirety without leave to amend. The motions are brought under rule 21.

[3] For the reasons that follow, the defendants’ motions are granted. The statement of claim is struck in its entirety, without leave to amend.

The Plaintiff’s Allegations

[4] I will describe the allegations being made in the statement of claim. In what follows, even where I do not specifically refer to the allegations as allegations, they remain untested allegations. The words that appear in quotation marks are taken directly from the statement of claim.

[5] The fresh as amended statement of claim sets out in paragraphs 8 through 67 the background facts relied on by the plaintiff for her claim. These paragraphs describe three applications to the LTB that the plaintiff made, a re-opening request for one of the applications, and the plaintiff’s experiences as these applications progressed.

The 2011 Application

[6] The first application was brought in 2011. The plaintiff brought the application due to sexual harassment she experienced from her then landlord, Donald Smith. “An example of harassment included Mr. Smith showing the plaintiff that he had her underwear in his possession and making suggestive comments about it.” The LTB tribunal member’s “views on sexual harassment placed an undue onus on victims to advise their harasser that the conduct was unwelcome, even where there is a power imbalance.” The tribunal member’s “decision contravened section 7(3)(a) of the Human Rights Code.” The Code had been raised at the hearing to no avail. The plaintiff sought a review of the result pursuant to the LTB’s procedures. The review was not successful. A different tribunal member held that the decision was reasonable. “The plaintiff exhausted her appeal rights without success until Jan. 19th, 2017.”

The 2015 Application

[7] The second application was made in July 2015 against the plaintiff’s then landlord, 1916880 Ontario Ltd., over “maintenance, loss of services and rental interest.” This application was initially brought jointly with the plaintiff’s neighbour, Christine Barber. However, there seems to have been a falling out between the plaintiff and Barber. Paragraph 49 of the statement of claim references “Barber’s malicious gossip.” Barber had asked that her application no longer be scheduled with the plaintiff’s and made false statements and negative allegations about the plaintiff’s mental health and credibility. These had been read by one of the tribunal members and the vice chair and had been placed in Barber’s file.

[8] At an earlier stage in this LTB application, the plaintiff requested accommodations for disability, and these were granted before her hearing. However, the member presiding at the hearing ignored the accommodations that had been granted. The plaintiff’s PTSD was exacerbated by the tribunal member’s conduct, which included demonstrating hostility, anger, angry tones of speaking, bias, and impatience throughout the hearing; offering inadequate accommodation; interrupting, refusing the plaintiff the opportunity to speak or present evidence or submissions, interjecting with belittling comments; and “Punitively dismissing the plaintiff’s T3 application.” A T3 application is an application by a tenant for a rebate of rent.

[9] The tribunal member put “discriminatory and disparaging comments about the plaintiff and her disabilities in the plaintiff’s file in order to warn other LTB Members, prejudicing the plaintiff’s ability to be treated fairly in any future LTB proceedings.” The plaintiff complained unsuccessfully to the vice chair of the LTB. The vice chair assured the plaintiff that her complaint would be held in confidence, but it was not. The vice chair told the plaintiff it would be inappropriate to comment on the plaintiff’s complaint but did so with the landlord.

[10] These events triggered PTSD symptoms for the plaintiff. She attended at a mediation where she was coerced into a mediated agreement.

The 2017 Application

[11] The third application was made in 2017. The plaintiff filed an LTB complaint to address maintenance that had been promised and not completed at her new residence as well as harassment she had experienced by a neighbour. She had been harassed in 2016 and 2017 and assaulted by this neighbour in June of 2017. The respondent named in the application is not specified in the statement of claim, but it appears it was likely a new landlord. The application was presided over by a different LTB member. This LTB member had acted for Mr. Smith for part of the 2011 application. Upon learning that the plaintiff was planning to commence a Charter action arising from LTB decisions, that member began to treat the plaintiff adversely and seemed angered over the plaintiff’s efforts to correct a clerical error. His conduct triggered the plaintiff’s PTSD. The plaintiff withdrew her application in January of 2018 due to the chilling effect of the vice chair’s conduct and because she was unable to determine the degree to which the presiding member was biased, having acted for Smith.

The 2017 Request for a Rehearing

[12] In 2017 the plaintiff also attempted to re-open the previously mentioned mediated agreement from the 2015 application. The vice chair presided at the hearing to re-open the application and was improperly and unduly influenced by statements made by Barber. The vice chair refused to allow the plaintiff an opportunity to respond to these statements. The vice chair made false statements including that she had no memory of the statements made by Barber. The vice chair lied “so she could justify her continued prejudiced treatment of the plaintiff.” The plaintiff also alleges that the vice chair intentionally removed documents from the plaintiff’s file “in order to avoid scrutiny of her misconduct”; she refused to recuse herself; she improperly asked the plaintiff questions about her last name; she refused to allow the plaintiff to adduce evidence; she mouthed a belittling comment so it would not be recorded on the transcript; and she refused to let the plaintiff to explain her disabilities at the hearing.

[13] The vice chair directed or worked with LTB staff “in conspiring with Barber in obtaining a photocopy of the plaintiff's driver's licence on Dec. 5th, 2017 without explaining to the plaintiff except to say it was a ‘discrepancy’ with the plaintiff's last name instead of saying it was Barber, not the LTB, who wanted the plaintiff's identification.”

[14] Meanwhile, the plaintiff had made accommodation requests for her disability to the vice chair and made two separate complaints to the vice chair about one of the tribunal members.

[15] The claim further alleges that: a. Notwithstanding that the vice chair had assured the plaintiff that her complaint would be held in confidence and would not be placed in her file, the vice chair did not maintain it in confidence. Also, the vice chair put reference to the plaintiff’s complaint about the tribunal member in Barber’s file. b. The vice chair also used the same belittling language that the tribunal member in the 2015 application had used about her. c. The vice chair also said it would be inappropriate to comment on the plaintiff’s complaint, but she did so with Barber when Barber wrote to the LTB in January of 2016. d. The vice chair intentionally removed documents from the plaintiff’s file in order to avoid scrutiny of her misconduct and another LTB tribunal member’s misconduct. e. The vice chair removed documents from the plaintiff’s file post hearing and made them inaccessible to the plaintiff despite the plaintiff requesting them.

[16] This was done to intentionally prejudice a review of the plaintiff’s matter by the reviewing member.

Untested Serious Allegations

[17] I wish to again emphasize that I have set out the allegations being made. I have a concern that by repeating the allegations I give them some credence. No evidence has been presented at this point. The allegations should not be treated either as being credible or as being false. I have detailed the allegations because, to do fairness to the plaintiff, the full scope of her allegations must be acknowledged. Because I am striking her claim, it is important that she can see that: a. her allegations have been understood; b. the seriousness of the misconduct she asserts has been appreciated; and c. despite the seriousness of her allegations, I have concluded that her claim has no chance of success.

Analysis

Issues

[18] Numerous issues were raised in the parties’ factums and submissions. For instance:

• The Crown asserts that the claim against it is a nullity because the plaintiff did not comply with the notice requirement of s. 18(1) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17. The plaintiff replies that her 2014 notice of constitutional question amounts to sufficient notice.
• Both defendants argue that the LTB members are immune from suit pursuant to s. 232(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). They argue that the LTB and the Crown cannot be liable for the actions of the LTB adjudicators who themselves are immune from suit. The plaintiff replies that this immunity only covers acts done or powers exercised in good faith. She has asserted Charter breaches and malicious breach of public duty for acts which can only be considered to have been conducted in bad faith. She also pleads in her fresh as amended statement of claim that s. 232(1) of the RTA (incorrectly referred to as s. 223 of the RTA) is unconstitutional.
• The Crown submits that no facts are pleaded that, if true, would demonstrate how section 232(1) of the RTA interferes with, let alone violates, the plaintiff’s freedom of expression, right to life, liberty or security of the person, or equality rights. The Crown says that the plaintiff “relies on one conclusory sentence to assert that s. 232(1) is unconstitutional” and “does not identify which sections of the Constitution Acts or the Charter are allegedly violated by section 232(1).”
• Both defendants argue that the common law doctrine of judicial immunity protects the LTB tribunal members from liability.
• Both defendants argue that the action is an abuse of process because it is a collateral attack on decisions of the LTB that the applicant was simply unhappy with. They argue that a party’s remedy against a tribunal decision is by way of reconsideration, appeal, or review of the decision, and not by way of a separate proceeding for damages. They argue that all the plaintiff’s concerns could and should have been addressed in the LTB proceedings or by way of judicial review of those proceedings. The plaintiff replies that she is claiming and is entitled to claim damages under s. 24(1) of the Charter. She argues this is not a collateral attack and this proceeding is her only avenue for this remedy.
• The Crown argues that the plaintiff cannot make a claim for Charter damages where a statutory appeal is the appropriate remedy arising from quasi-judicial proceedings.

[19] I will not address the foregoing arguments because it is unnecessary to do so. It is plain and obvious that the plaintiff’s claim is doomed to fail based on the following arguments put forward by the defendants:

• The LTB is not an entity that is capable of being sued.
• The Crown is not vicariously liable for the actions of the LTB or its tribunal members. The LTB tribunal members about whom the plaintiff complains have not been sued.

The Test on Rule 21 Motions

[20] The defendants move under rule 21.01(1)(b), arguing that the claim does not disclose a reasonable cause of action. They also move under rule 21.01(3)(d), arguing that the claim is an abuse of process.

[21] Under either rule, for purposes of the motion, the allegations in the statement of claim are to be taken as true or capable of being proven true. The leading case for the test on a rule 21 motion is found in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at p.980. That was a B.C. case decided under the equivalent B.C. rule of court, being Rule 19(24)(a). The Supreme Court of Canada held:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

[22] The principles are summarized in T.L. Archibald and P. Tamara Sugunasiri, Ontario Superior Court Practice, 2022 (Toronto: LexisNexis Canada, 2021), at p. 1280, and may be summarized as follows:

Rule 21.01 allows the court to dispose of cases at an early stage if the circumstances so warrant. The courts are reluctant to prevent P from having his or her day in court. Accordingly, the courts have established some general principles and tests with respect to statements of claim and r. 21 motions. The same principles apply whether the motion is brought under r. 21.01(1)(a) or (b).

(1) The statement of claim must disclose a cause of action founded in law. (2) The material facts pleaded are to be taken as true unless they are patently ridiculous or incapable of proof. (3) The statement of claim is to be read generously with allowance for inadequacies due to drafting deficiencies. (4) It is irrelevant that the cause of action is novel; indeed, at this stage of the proceedings, the court should not dispose of matters of law that are not fully settled in the jurisprudence. (5) It does not matter whether D has a very strong defence. (6) It does not matter that the allegations are serious or that the case appears hopeless. (7) The length and complexity of the issues are irrelevant to the issue of whether a cause of action exists. (8) The test which P must meet is a very low one. (9) The proposition in question must be “crystal clear”, with caution and prudence governing the exercise of the court’s discretion. (10) The moving party must show that it is plain, obvious and beyond doubt that P could not succeed.

[23] As can be seen, the hurdle that the plaintiff must get over is a low one on a motion such as this. However, the court does not always do justice to a plaintiff by allowing a hopeless action to proceed: Odhavji Estate v. Woodhouse (2000), 52 O.R. (3d) 181 (C.A.), at p. 199, var’d 2003 SCC 69. “Where a case cannot succeed because the law forbids it, the rule brings a salutary end to the proceedings”: Temelini v. Ontario Provincial Police (Commissioner) (1990), 73 O.R. (2d) 664 (C.A.) at p. 668, leave to appeal to S.C.C. refused 1 O.R. (3d) xii (S.C.C.).

The Capacity of the LTB to be Sued

[24] This court has held on two previous rule 21 motions that, apart from appeals and judicial review proceedings, the LTB is not an entity capable of being sued. Per Perell J. in Raba v. Wronecki, 2015 ONSC 20, at para. 33:

The Board's enabling statute, the Residential Tenancies Act, 2006 does not constitute the Board as a body corporate, nor does it endow the Board with the capacity to be sued, either explicitly or by necessary implication. Under its enabling statute, the Board has the power to hear and determine applications on residential property rental issues. The Board is a legal entity, a statutory body, exercising a quasi-judicial function, and it cannot be sued for actions taken in relation to applications before it.

[25] Another case involving the same plaintiff was to the same effect. In Raba v. Landlord and Tenant Board, 2014 ONSC 2599 at para. 13, C.J. Brown J. held that the LTB is not a suable entity. This finding was affirmed by the Court of Appeal: 2014 ONCA 864, at para. 1: “We are not persuaded that the motions judge erred in law in holding that the Board was not a suable entity.”

[26] I need not repeat what was said in these cases, but will briefly note that the LTB fits into the sixth category of statutory bodies described in Westlake v. R., [1971] 3 O.R. 533, aff’d, , [1972] 2 O.R. 605 (C.A.), aff’d, [1973] S.C.R. vii, , 33 D.L.R. (3d) 256 (S.C.C.), where it was held that the Ontario Securities Commission was not a legal entity which is capable of being sued in an action for damages. That sixth category includes “non-corporate bodies which are not by the terms of the statute incorporating them or by necessary implication liable to be sued in an action for damages, but who are legal entities in that their actions may be reviewed in proceedings brought against them by way of the extraordinary remedies of certiorari, mandamus and prohibition.” Like the OSC and the Ontario Labour Relations Board, the LTB:

does not carry on any business. Its function is primarily administrative and it has been given power to exercise certain functions of a judicial nature. There is nothing in the Act remotely suggesting that it was intended by the Legislature that the Board should have the capacity either to sue or be sued: Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, [1952] O.R. 366, at p. 377-8.

[27] There is nothing in the RTA conferring the LTB with the power to enter into contracts, to acquire, hold, or dispose of property, or to carry on any commercial activity.

[28] The plaintiff’s claim against the LTB must fail because the LTB cannot be sued. This is well-settled law. No amendments to the fresh as amended statement of claim could cure this defect.

[29] On this basis, the motion brought by the LTB must granted and the claim must be struck as against the LTB, without leave to amend.

Vicarious Liability of the Crown

[30] In the prayer for relief the plaintiff claims for certain declarations and for damages. One of the declarations she seeks is, “A declaration that Her Majesty The Queen in Right of Ontario is vicariously liable for the Landlord Tenant Board.” At paragraph 4 of the statement of claim, the plaintiff alleges that, “Pursuant to s. 5 of the Proceedings Against the Crown Act, RSO 1990, c P.27, Her Majesty the Queen in right of Ontario is vicariously liable for torts committed by its servants and agents.” The balance of the statement of claim focuses on the actions of LTB tribunal members and the vice chair of the LTB. The individual LTB tribunal members referenced in the body of the statement of claim have not been sued.

[31] For a court to impose vicarious liability, the defendant generally must have some measure of control over the employee or agent who is more directly responsible for the damage. Here, LTB members act “in a highly independent manner, free from close government control.” (This is language from K.L.B. v. British Columbia, 2003 SCC 51, at para. 23.)

[32] The circumstance is analogous to Speckling v. Kearney, 2007 BCCA 145 where it was ruled on a motion to strike the claim that the Crown could not be vicariously liable for the actions of the B.C. Labour Relations Board. In coming to this conclusion, the motions judge and the B.C. Court of Appeal held that the Crown did not exercise the degree of control over the B.C. LRB’s activities that is required to impose vicarious liability. The B.C.C.A. noted, at para. 4, that while the control test of vicarious liability is not decisive, the relationship between the Crown and tribunals exercising “an adjudicatory authority derived from statute … is well outside any recognized ambit of vicarious liability.” [Emphasis added.]

[33] In Speckling, the motions judge and the B.C.C.A. also referred to Lucas v. Taxicab Board, [1985] 2 W.W.R. 681 (Man. C.A.), where it was held, at p. 689: “Whether or not an entity is an agent of the Crown depends, in the main, upon the nature and degree of control exercisable or retained by the Crown.” The Manitoba Court of Appeal held that the Taxicab Board was not an agent of the Crown, noting that “the only control exercised by Manitoba over the board is the appointment by the Lieutenant Governor in Council of three of its five members, and of its chairman, vice-chairman or acting chairman from among its members.” The court agreed with the motion judge that the board members could exercise their discretion without restraint.

[34] The same is true for the LTB. The LTB’s members are appointed by the Lieutenant Governor in Council pursuant to s. 169(1) of the RTA. The chair and vice chairs are selected from board members and are also appointed by the Lieutenant Governor in Council (see s. 170 of the RTA). The RTA requires the LTB to establish a Rules and Guidelines Committee (s. 176(1)). This committee adopts the rules of practice and procedure governing the practice and procedure in applications to the LTB (s. 176(2)). It is apparent from the RTA that the LTB acts independently from the Crown. Nothing in the RTA suggests that the Crown exercises any material measure of control over the LTB or its tribunal members.

[35] Even accepting the allegations in the statement of claim to be true, it is plain and obvious that the plaintiff’s action has no chance of success against the Crown. The Crown cannot be vicariously liable for anything done by the LTB or its tribunal members as it is an independent, quasi-judicial tribunal and its tribunal members are independent, quasi-judicial officials. The LTB and its tribunal members act independently of the Crown. This is a necessary legal conclusion resulting from an analysis of the statute which creates the LTB, and not a conclusion that might be influenced by other evidence.

[36] I also note that, to the extent that the LTB tribunal members may have acted in bad faith or beyond the scope of their duties, responsibilities, or powers, this would only add to the Crown’s argument that it does not have vicarious liability for their actions.

[37] Again, no amendments to the fresh as amended statement of claim could cure this defect.

[38] On this basis, the motion brought by the Crown must granted and the claim must be struck as against the Crown, without leave to amend.

Costs

[39] The parties agreed that there should be no order for costs.

Disposition

[40] The motions are granted. The fresh as amended statement of claim is struck in its entirety without leave to amend. There shall be no order for costs.

Chown J.

Released: April 19, 2022 Ms. Daly’s name was spelled wrong in the citation and counsel list. I have corrected these errors. – Chown J. Corrected version released: April 25, 2022