Whittaker v. Richmond Medical Centre Inc., 2020 ONSC 7240

CITATION: Whittaker v. Richmond Medical Centre Inc., 2020 ONSC 7240

COURT FILE NOS.: 508/20

DATE: 20201124

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Whittaker v. Richmond Medical Centre Inc. and Jackson

COUNSEL: Ms Whittaker, self-represented

Rod Refcio and William Chapman, for the Respondents

BEFORE: D.L. Corbett J.

DATE: November 24, 2020

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management teleconference held November 24, 2020.

[2] This matter arises out of a landlord and tenant dispute. It has already spawned far too much litigation: this court will make an order to streamline matters.

[3] Ms Whittaker was a residential tenant of the respondent corporation. The tenancy was terminated and eviction was ordered by the Landlord and Tenant Board. Ms Whittaker appealed to the Divisional Court, as she was entitled to do, and a stay of the eviction order was issued. The appeal did not move forward and the landlord moved before a single judge of the Divisional Court to quash the appeal. Justice Mitchell granted the landlord’s motion, quashed the appeal, and lifted the stay of the Board’s eviction order.

[4] The tenant was then forcibly evicted from her premises.

[5] The tenant takes the position that the landlord has refused to let her recover her personal property from the leased premises and has purported to distrain as against that property for amounts allegedly owed by the tenant to the landlord.

[6] Ms Whittaker then purported to commence this application for judicial review in Divisional Court, and to seek an emergency injunction from the Superior Court of Justice in respect to her personal property.

[7] This court directed a case management teleconference to address these and other matters that exist between the parties.

Recovery of Personal Property

[8] Counsel for the landlord agreed – both correctly and reasonably – that the landlord is not entitled to distrain for unpaid rent in the context of a residential tenancy and that Ms Whittaker be allowed to pick up her personal property. They advised that, to their knowledge, the property had been removed from the leased premises and placed in storage at “Self-Storage” at 1173 Dundas Street, unit DB201. Counsel, on behalf of the landlord, acknowledged that the property cannot be held back from Ms Whittaker for payment of any amount, including storage costs, and that arrangements will be made so that Ms Whittaker may attend at the storage locker and retrieve her belongings tomorrow.

[9] Ms Whittaker said that she can go to retrieve her belongings tomorrow; counsel for the landlord agreed that arrangements be made so that this can take place tomorrow. Ms Whittaker is instructed that if she has difficulties obtaining her property at Self-Storage tomorrow, she will call counsel for the landlord to get assistance to sort the problem out. If problems arise that cannot be sorted out in this way, then the parties shall arrange a further teleconference with me. I was clear with the parties that I expect them to sort this out: it should not require the participation of a Superior Court Justice to implement such a straightforward order.

[10] I appreciate that there may be issues about whether all of the property is in the storage locker, and perhaps about the condition of the property. Ms Whittaker may wish to take pictures to record any issues she has, but resolving those sorts of issues is for another day: Ms Whittaker is to retrieve all of the property in the storage locker tomorrow, as she said she could, and the landlord is to make the necessary arrangements for Ms Whittaker to be able to do that when she arrives at Self-Storage.

[11] In her materials, Ms Whittaker made reference to her dog, which she says the landlord has refused to give back to her after the eviction. The issue, as presented in Ms Whittaker’s written materials, was rather differently described during the teleconference. In the written materials, it seemed that Ms Whittaker had a dog, which was living with her at the time of the eviction, and which the landlord had withheld along with the rest of Ms Whittaker’s personal property. This led the court to understandable concern about what was going on here.

[12] It emerged from the teleconference that Ms Whittaker had placed the dog with the landlord’s family almost two years ago, and that the dog has been living with the landlord’s family since around January 2019. The landlord says that Ms Whittaker gave the dog to one of the landlord’s children – including all of the dog’s tags and licenses and veterinary information. Ms Whittaker says that she did not give the dog away and expected to get it back – the arrangement, she says, was temporary.

[13] This situation is a far cry from the situation described in Ms Whittaker’s written materials. I put it to her that she had no reason to believe that the dog was not fine and well cared for, and her response was that she did not know this to be true. There is no evidence the dog is anything but well, and well provided for. Possession is, as they say, nine-tenths of the law, and I decline to make an order that the dog be returned now. It is clear that the status quo is that the dog lives with the landlord’s family, and Ms Whittaker’s materials on this issue were less than candid.

[14] If Ms Whittaker takes the position that the dog is her property then she shall pursue that issue in a claim in the small claims court, to be commenced within sixty days, and to include no other claims than title to the dog. If Ms Whittaker does not commence that claim as directed in this endorsement, then she will be deemed to have abandoned any claim to or in respect of the dog.

[15] Ms Whittaker was asked if she had further issues with the landlord and she said that she did:

(a) claims she intends to make against Ms Jackson in respect to a joint business enterprise;

(b) claims about the landlord forging her name to a lease;

(c) multiple proceedings brought against her respecting rent, all of which should have been dealt with at once in front of the landlord and tenant board (including, I understand, rent arrears and claims for damage to the rented premises);

(d) claims arising from the manner in which the eviction was carried out (potentially against the landlord and potentially against the landlord’s bailiff).

In addition, of course, there is the claim respecting ownership of the dog, and any claims that may arise in respect to Ms Whittaker’s personal property – its apparent improper distraint and potentially in respect to missing or damaged property.

[16] Ms Whittaker has already demonstrated that she may not litigate reasonably. That is not to say, however, that she does not have claims. The situation, as a whole, has already required far more urgent judicial attention than should be the case, and, unmanaged, it seems likely that these parties will not follow a reasonable and linear process to resolve the issues between them in a proportional way. This court directs that the parties take no proceedings or steps in any proceedings in any court in Ontario (other than the Court of Appeal) except with leave from the case management judge. I shall be the case management judge pending appointment of a Superior Court Judge in London Ontario to undertake this responsibility.

[17] Finally, in respect to the application for judicial review commenced by Ms Whittaker in this court, the Registrar is directed to give Ms Whittaker notice that the court is considering dismissing the application as frivolous, vexatious and an abuse of process, pursuant to R.2.1.01 of the Rules of Civil Procedure, for the following reasons;

(a) There is a statutory appeal from the Landlord and Tenant Board. No application for judicial review is available in respect to issues that are properly the subject of a statutory right of appeal.

(b) The applicant in fact pursued her statutory appeal rights and did not pursue an application for judicial review. Her appeal was dismissed by Justice Mitchell. The applicant had the right to seek a review of the decision of Justice Mitchell by a panel of three judges of the Divisional Court but did not take that step.

(c) It was not until after the decision of Justice Mitchell that the applicant commenced the application for judicial review, and in her application she raises grounds for her review that are effectively identical to the issues she had raised in her dismissed appeal. In other words, the application appears to be vexatious re-litigation of the appeal;

(d) Further and in any event, an application for judicial review must now be brought within thirty days of the underlying decision. Even accounting for the suspension of deadlines as a result of COVID-19, this application appears to be outside the thirty-day deadline.

[18] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.

D.L. Corbett J.

Date: November 24, 2020