Court File and Parties

CITATION: Vaney v. CAPREIT, 2020 ONSC 3736

COURT FILE NO.: 124/20

DATE: 20200615

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Vaney v. CAPREIT and Landlord Tenant Board

BEFORE: D.L. Corbett J.

COUNSEL: Ben Fulton, – for the Applicant Ms Vaney

CHAMBERS ENDORSEMENT

D.L. Corbett J.:

[1] At the request of the Landlord Tenant Board, this court directed the Registrar to send a notice to the applicant pursuant to R2.01.1 advising that the court was considering dismissing the application as frivolous and vexatious, and giving the applicant an opportunity to make submissions in writing on this issue.

[2] Applicant’s counsel provided submissions in response by email dated April 12, 2020.

[3] The basis of the court’s notice pursuant to R.2.01.1 is that the applicant has commenced an application for judicial review before exhausting her appeal rights under s.210 of the Residential Tenancies Act.

[4] The jurisprudence is crystal-clear on this point, and this court has repeatedly terminated applications brought in violation of this principle pursuant to R.2.01.1 to save the parties the expense and delay of a contested motion to quash, or worse, dismissal of the application at its return before the panel.

[5] The court appreciates that parties often make this mistake, and that – for the applicant – the error may seem more a matter of form over substance. But it is not a small technical point: a statutory appeal is brought in accordance with the legislature’s decision respecting whether, how, and on what basis the decision of a tribunal may be reviewed in this court. An application for judicial review is an exercise of the court’s supervisory role over tribunals that may be exercised only where there is no appeal right or appeal rights have been exhausted.

[6] This is not to say that the underlying complaints and issues are frivolous or vexatious – rather, it is bringing these complaints by way of an application for judicial review rather than by way of an appeal that renders the proceeding bound to fail – and hence a proceeding that should be dismissed as frivolous: it is bound to fail in the form in which it has been brought.

[7] The application is dismissed pursuant to R.2.02.1, without prejudice to an appeal pursuant to s.210 of the Residential Tenancies Act. Given the suspension of litigation deadlines because of COVID-19, it should not be necessary for Vaney to seek an extension in the time in which to bring an appeal. However, such an appeal should be brought within thirty days of this decision.

[8] The court has signed a copy of this endorsement this day. The unsigned version sent to the parties is effective from the time it is sent by email. A copy of the signed version will be provided to the parties in due course, given the current suspension of court operations because of COVID-19.

D.L. Corbett J.

Date: June 15, 2020