Court of Appeal for Ontario

CITATION: Obermuller v. Kenfinch Co-Operative Housing Inc., 2016 ONCA 330 DATE: 20160503

DOCKET: C61423

BEFORE: Hoy A.C.J.O., Blair and Roberts JJ.A.

BETWEEN

Cheryl Obermuller

Plaintiff (Appellant)

and

Kenfinch Co-Operative Housing Inc., Josephina Boto, Iler Campbell, Celia Chandler, Joseph Van Tassel, and Sylvia Watson

Defendants (Respondents)

Counsel:

Cheryl Obermuller, in person

Adam Pantel, for the respondents, Iler Campbell and Celia Chandler

Farzin Yousefian, for the respondent, Joseph Van Tassel

Luke Saites, for the respondents, Kenfinch Co-operative Housing Inc. and Josephina Boto

Margaret Leighton, for the respondent, Sylvia Watson

Heard and released orally: April 21, 2016

On appeal from the judgment of Justice F.L. Myers of the Superior Court of Justice, dated November 3, 2015.

ENDORSEMENT

[1] The appellant appeals from the dismissal of her action against the respondents. In her action, the appellant claimed damages related to her eviction from her co-operative housing unit at the Kenfinch Co-Operative, based on her persistent and substantial rent arrears, and Kenfinch’s refusal to grant her subsidized rent request. The appellant’s action was commenced following numerous proceedings, starting with the Landlord and Tenant Board’s October 22, 2014 eviction order, in which she was unsuccessful.

[2] In response to requisitions received from some of the respondents, on September 30, 2015, the motion judge directed the registrar to send a notice to the appellant that the court was considering dismissing her action under r. 2.1.01 of the Rules of Civil Procedure, for being frivolous, vexatious, or an abuse of process. The registrar sent a notice to the appellant in Form 2.1A. The appellant did not provide submissions. On November 3, 2015, the motion judge dismissed the appellant’s action under r. 2.1.01.

[3] The appellant argues on appeal that the motion judge erred in dismissing her action when there was no motion for summary judgement before him and when no hearing was held. Further, she submits that the trial judge erred in dismissing the action against all respondents because no requisitions were filed by Kenfinch and Josephina Boto. She also argues that she did not receive the required notice under r. 2.1.01 and therefore was deprived of the opportunity to make submissions. Finally, she submits that her statement of claim sets out claims for damages that were not the subject of the eviction or her subsidized rent proceedings.

[4] We do not accept the appellant’s submissions.

[5] Rule 2.1.01 permits the summary disposition of an action without a public hearing, on the court’s own initiative and without requisitions being submitted by the parties, although the plaintiff must be given the opportunity to provide written submissions, as was done in the present case.

[6] The record establishes that the appropriate notice to the appellant under r. 2.1.01 was sent to all parties by mail as required under r. 2.1.01(4). The respondents acknowledge receipt of the notice. It was sent to the appellant at the address set out by the appellant on her statement of claim. The appellant has not provided any evidence that she did not receive it. The appellant failed to deliver submissions within the time provided by r. 2.1.01 and did not seek an extension of time to provide submissions or offer evidence of any reasonable excuse as to why she should be relieved of compliance with the fifteen-day deadline under that rule.

[7] Even if we were to accept that the appellant did not receive notice under r. 2.1.01 to make submissions, no prejudice or injustice would arise because it would not have affected the outcome of the motion given the nature of and bases pleaded for the appellant’s claims.

[8] We agree with the motion judge’s conclusion that it is apparent on the face of the statement of claim that the appellant’s action is clearly an abuse of process, frivolous and vexatious, because it is an attempt by the appellant to re-litigate the outcome of the other proceedings related to the eviction and rent subsidy proceedings in which she was unsuccessful and which were finally determined against her. All of the issues that are raised in the appellant’s statement of claim were or could have been raised in the previous proceedings. The appellant’s claim for damages for the same complaints that were or could have been raised in previous proceedings does not change the fact that the same issues were already or could have been determined in those proceedings and cannot be re-litigated in her action.

[9] Moreover, the appellant can have no reasonable cause of action against Josephina Boto for providing an affidavit of service, or against Celia Chandler and Iler Campbell, Kenfinch’s lawyers, who owed no duty of care to the appellant in the circumstances of this case.

[10] The appellant argues that Joseph Van Tassel and Sylvia Watson should not be above the law or that a different law should apply to them. However, the legislature has created a statutory immunity for them. As a result, the appellant’s claims against Joseph Van Tassel, an employee of the Superior Court of Justice, and Sylvia Watson, the Landlord and Tenant Board member who signed the eviction order, are also bound to fail because of those respondents’ statutory immunity from any lawsuit related to the performance of their duties.

[11] We see no error in the motion judge’s decision. This was a clear case where a dismissal of the appellant’s action under r. 2.1.01 was warranted. There is no basis for us to interfere.

[12] As a result, the appeal is dismissed.

[13] The respondent law firm is entitled to costs in the all-inclusive amount of $1,000.00. Mr. Van Tassel is entitled to all-inclusive costs in the amount of $500.00. Kenfinch and Ms. Botto are entitled to costs in the amount of $500. Those costs are payable forthwith.

[14] In the circumstances, we dispense with the necessity of the respondent seeking approval from the appellant of the form of this order.

“Alexandra Hoy A.C.J.O.”

“R.A. Blair J.A.”

“L.B. Roberts J.A.”