CITATION: Trindade v. Jantzi, 2021 ONSC 1927
DIVISIONAL COURT FILE NO.: DC-19/51
DATE: 20210316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Penny and Favreau JJ.
BETWEEN:
Mary Trindade
Appellant (Landlord)
– and –
Alysia Jantzi, Brad Jantzi, Daniel Jantzi, Rachel Jantzi, Ryan Jantzi and Abby Jantzi
Respondents (Tenants)
Bernie Romano, Jordan Nussbaum and Saveria Romano, for the Appellant (Landlord)
Juliet Montes, for the Respondents (Tenants)
Jason Tam and Katia Snukal, for the Landlord and Tenant Tribunal
HEARD by videoconference: March 9, 2021
Favreau J.:
Overview
[1] The appellant, Mary Trindade, appeals an order made by the Landlord and Tenant Board on May 27, 2019, concluding that the Board has exclusive jurisdiction over an application for rent abatement brought by the respondents, Alysia Jantzi, Brad Jantzi, Daniel Jantzi, Rachel Jantzi, Ryan Jantzi and Abby Jantzi.
[2] On March 27, 2017, the appellant and her sister, Zita Fernandes, entered into an agreement of purchase and sale with the respondent, Ryan Jantzi, for the sale of a property. The closing was due to occur on August 29, 2017.
[3] There were issues with completing the sale, and, on August 16, 2017, the parties entered into what was described as an “Occupancy Agreement”. The Occupancy Agreement allowed the Tenants to move into two units on the property pending the expected sale of the property. The Occupancy Agreement provided that the respondents were to pay a monthly “occupancy fee” of $1,500 per unit. The Occupancy Agreement also contained a provision stating that the appellant and her sister were granting the respondents a “license to occupy” the property, and that the respondents were not tenants under the Residential Tenancies Act, 2006, S.O. 2006, c. 17.
[4] Ultimately, the appellant and her sister were not able to complete the sale of the property due to zoning issues.
[5] There does not appear to be any dispute between the parties that the respondents made an initial payment of $750 under the Occupancy Agreement for the second half of August 2017, but that they made no further monthly payments.
[6] In 2018, the appellant commenced an application in the Superior Court to terminate the Occupancy Agreement and for $45,000 in unpaid occupancy fees. By consent order dated December 11, 2018, the Court granted vacant possession of the property to the appellant and ordered that the following issues would be decided by the Court:
a. The Applicant’s entitlement, if any, to judgement as against the Respondents and each of them for unpaid occupancy fees or rents, and the quantum of same;
b. The Applicant’s entitlement, if any, to judgment as against the Respondents and each of them for unpaid utilities at the Subject Property, and the quantum of same;
c. The Applicant’s entitlement, if any, to judgment as against the Respondents and each of them for damages caused by the Respondents to the Subject Property, and the quantum of same;
d. Pre-judgment and post-judgment interest;
e. Costs; and
f. Such further and other relief as the Honourable Court may deem just.
[7] In February 2019, after the respondents had vacated the units, they brought two applications to the Landlord and Tenant Board. The first application was for a determination that the Residential Tenancies Act, 2006 applies to the relationship between the parties and the second was for rent abatement in the amount of $24,000 based on allegations that the appellant had failed to provide heat during the tenancy.
[8] The issue of jurisdiction proceeded first at a hearing held on May 6, 2019. At that hearing, the appellant took the position that the Residential Tenancies Act, 2006 does not apply, that the application to the Board was an abuse of process given the Superior Court proceedings and that the respondents had “attorned” to the jurisdiction of the Superior Court.
[9] The Board released a decision dealing with the issue of jurisdiction on May 27, 2019. In its decision, after reviewing the Occupancy Agreement and the circumstances of the arrangements between the parties, the Board found that the Residential Tenancies Act, 2006 applies to the tenancy. The Board also found that it has exclusive jurisdiction to decide the respondents’ application for rent abatement because the amount claimed falls within the monetary jurisdiction of the Board. The Board further found that, given the issues to be decided in the Superior Court, the respondents would have “no recourse if the Board were to decline jurisdiction”. The Board concluded by stating that the respondents’ application for rent abatement would be heard at a later date.
[10] For the reasons below, the appeal is granted. The Board made legal errors in finding that the respondents could not raise the issue of rent abatement in the Superior Court proceedings and in thereby failing to find that allowing the respondents’ application to go forward at the Board would constitute an abuse of process.
Standard of review
[11] Section 210(1) of the Residential Tenancies Act provides that an appeal from an order made by the Board lies to the Divisional Court, but only on a question of law.
[12] The standard of review on errors of law is correctness.
Issue 1 -- The Board made errors of law in finding that it had no authority to decline jurisdiction over the application and that the respondents would have no recourse in the Superior Court
[13] While the appellant’s factum on the appeal raised a number of issues, at the hearing of the appeal the appellant focused her argument on two issues, namely whether the Board erred in failing to find that 1) the application to the Board was an abuse of process, and 2) the respondents attorned to the jurisdiction of the Superior Court.
[14] The Board made no error in finding that the respondents did not “attorn” to the Superior Court’s jurisdiction. Attornment is a concept that arises in the context of private international law. Counsel for the appellant was not able to identify any case law that supported his argument that the respondents’ participation in the Superior Court application was a form of attornment. Nothing further needs to be said about this issue.
[15] However, in my view, the Board made an error of law on the issue of whether the respondents’ application for rent abatement was an abuse of process. This issue breaks down into two related legal errors. The Board’s first error was to find that it had no authority to decline jurisdiction over the respondents’ application. The Board’s second error was its finding that the respondents would have no recourse in the Superior Court.
[16] Section 168(2) of the Residential Tenancies Act, 2006 gives the Board exclusive jurisdiction to determine all applications under the Act and all matters that arise from the Act.
[17] At the time the Board made its decision, the Board’s monetary jurisdiction was $25,000.
[18] Section 207(2) of the Act provides that proceedings exceeding the Board’s monetary jurisdiction can be brought to the Superior Court and that, in that context, the Court can exercise all of the Board’s powers:
A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.
[19] In this case, after finding that the parties were in a landlord and tenant relationship to which the Act applies, the Board rejected the appellant’s arguments that the respondents’ application for rent abatement should proceed in the context of the appellant’s Superior Court application. The Board reasoned that, given that the respondent’s application for rent abatement fell within its monetary jurisdiction, the Board had exclusive jurisdiction over the application and the respondents could not be compelled to advance their claim in the context of the Superior Court application:
[50] The Tenants’ claims, arising from a residential landlord-and-tenant relationship and the remedies limited $24,000.00, are within the exclusive jurisdiction of the Board. The Court does not have concurrent jurisdiction on the Tenants’ claims, as pleaded. The Board has a statutory mandate. It cannot decline jurisdiction over a matter involving the application and interpretation of its home statute. While the parties are before the Court in relation to the Landlord’s claims which exceed or are outside the Board’s jurisdiction, the Tenants cannot be compelled to join their issues with the Landlord’s application even for the sake of efficiency or to avoid duplicate proceedings. The parties may very well reply on the same evidence or call the same witnesses, but the Tenants cannot be compelled to waive their right to file their application with the Board on issues which fall within the Board’s expertise and exclusive jurisdiction. [emphasis added]
[20] The Board went on to state that, in any event, the Superior Court order setting out the issues to be decided on the application would not give the respondents any recourse in the Superior Court:
[51] I note too that per the Court’s order dated December 11, 2018, the Court has delineated the issues for its determination and they consist only of the Landlord’s claims. The Tenants’ claim for amounts to be set-off against the Landlord’s claims on the specified grounds, will not be determined by the Court. The Tenants will have no recourse if the Board were to decline jurisdiction. [emphasis added]
[21] In my view, the Board made two related errors of law in paragraphs 50 and 51 of the decision.
[22] The Board’s first error was in stating, in paragraph 50, that the respondents could not be compelled to advance their claim in the Superior Court. The Board provided no authority or rationale for this statement. It is simply a bald statement suggesting that, once the Board has found that the respondents’ claim for rent abatement falls within its monetary jurisdiction, no further inquiry is required. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides that a “tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”. During the argument of the appeal, counsel for the Board agreed that the Board has the power to stay or dismiss an application on the basis that it is an abuse of process, and that the jurisdiction hearing would have been the appropriate context in which to consider this issue. I agree and, on that basis, I find that it was an error of law for the Board to find that it had no power to compel the respondents to raise the issue of rent abatement in the Superior Court. Whether the Board should have made a finding of abuse of process in this case is a different issue which is addressed below. But what is clear is that the Board made a legal error in finding that its inquiry was limited to the issue of whether the respondents’ claim fell within the Board’s monetary jurisdiction. The Board should have gone on to address the issue of whether the respondents’ application for rent abatement brought to the Board was an abuse of process.
[23] The Board’s second error was its finding at paragraph 51 that, even if the Board had the power to decline jurisdiction, the respondents would have no recourse in the Superior Court proceedings. The Board’s finding that the respondents would have no recourse in the Superior Court was based on a narrow reading of the December 11, 2018 order, without regard to the broader legal and factual context. As conceded by the appellant, the respondents would be allowed to make a claim for setoff in the Superior Court for any rent reduction to which they would be entitled due the appellant’s alleged failure to provide heat. The wording of the December 11, 2018 order, which refers to determining “entitlement, if any, to judgement as against the Respondents and each of them for unpaid occupancy fees or rents, and the quantum of same” [emphasis added] does not preclude the respondents from asserting their claim for setoff. In addition, the Board’s finding that the respondents would have no recourse in the Superior Court completely ignores the evidence that the respondents have already asserted a right to setoff in relation to the heat issue in the Superior Court proceedings. In an affidavit sworn by the respondent Ryan Jantzi in the Superior Court proceedings, he reviews the circumstances of the tenancy from the respondents’ perspective, including their position that the landlord provided inadequate heat, and goes on to request that “the Court consider offsets” [emphasis added] to the appellant’s claim, including for “failure to provide vital services to children and adults: $39,000 deducted from base rent”. Accordingly, it was an error of law for the Board to read the December 11, 2018 order as precluding the respondents from asserting a claim for setoff and to ignore the evidence that the respondents had already asserted such a claim.
[24] To be clear, had the Board considered the issue of abuse of process and found that there was no abuse of process in this case, this Court would have limited power to intervene on appeal. A finding of abuse of process engages a decision maker’s discretion and the Court could only intervene if the Board had made an error in principle. However, in this case, the Board’s error was to not embark on the abuse of process inquiry at all by first finding that it did not have the power to compel the respondents to raise their issues in the Superior Court and by then finding that, even if it had the power to so, they were precluded from doing so by the December 11, 2018 order.
[25] The next issue is to be determined is the appropriate remedy.
Issue 2 -- The respondents’ application to the Board is an abuse of process
[26] Section 210(4) of the Residential Tenancies Act gives the Divisional Court the power to “affirm, rescind, amend or replace the decision or order” of the Board or “to remit the matter to the Board with the opinion of the Divisional Court”. In this case, in my view, the Court has all the facts necessary to decide the issue of abuse of process and, given the convoluted history of these proceedings and the need for finality, it is best for the Court to decide the issue.
[27] As held in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, at para. 36, the “doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings”. In Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at para. 16, the Court of Appeal emphasized that a multiplicity of proceedings raising the same issues does not necessarily give rise to abuse of process in all cases. A finding of abuse of process depends on the circumstances and context of the case.
[28] In my view, having regard to all of the circumstances of this case, the respondents’ application for rent abatement to the Board is an abuse of process.
[29] First, the issues raised in the application before the Board are identical to the issues raised by the respondents in the context of the application before the Court. In both contexts, the respondents claim that they should not have to pay the outstanding rent owed to the appellant because there was inadequate heat in the units. The appellant denies that the respondents ever complained about the heat issue and the respondents assert that they raised the issue repeatedly. In both the context of the Superior Court application and the application for rent abatement before the Board, there would have to be determinations about whether the heating was adequate, about the communications between the parties on the issue, and about by what amount, if any, the rent owed should be reduced. Allowing the issue to proceed before both the Board and the court would inevitably lead to duplicative proceedings and potentially inconsistent findings.
[30] Second, in the context of the application before the Board, the respondents are not seeking payment of any money. They have admitted to paying no rent except for $750.00. Rather, they are explicitly seeking a determination of the amount by which the rent owing should be reduced for the purpose of deducting that amount from any judgment made against them in the Superior Court. This is clear from the respondents’ application to the Board in which the respondents explicitly refer to the appellant’s application in the Superior Court and ask: “Is rent abatement possible towards the $55,000 she is suing me for”. As such, on its own, the respondents’ application to the Board has no utility. As admitted by the respondents, it is necessarily intertwined with the outcome of the Superior Court proceedings.
[31] Third, there is no ongoing tenancy. The respondents are not asserting a right to ongoing heat or other services. In fact, the respondents commenced the application to the Board after they had already vacated the units, and, as noted by the Board, they make no arguments that they were wrongfully evicted.
[32] As a general rule, there is no doubt that the Board or a court should be cautious before finding that it is an abuse of process for a party to bring an application before the Board even if there are parallel proceedings before the court. The Board is meant to be a less expensive and more accessible forum in which tenants or landlords can assert their rights. However, in the unique circumstances of this case, where the only apparent purpose of the respondents’ application before the Board is to shield against a judgment by the Court in proceedings in which the respondents can raise, and have raised, the same issues as before the Board, I have no difficulty in finding that the respondents’ application to the Board for rent abatement is an abuse of process.
[33] At the hearing of the appeal, the respondents’ counsel argued that all proceedings should be before the Board and not before the Superior Court. The stated rationale for this argument is that there were two tenancies and the monetary jurisdiction of the Board is not exceeded if the appellant’s claim were split in two. As indicated during the hearing, this argument was not properly before the Court. It was not raised before the Board and, in any event, the respondents did not appeal the Board’s decision and have no standing to seek additional relief in the context of this appeal. There is no basis for the Court to make the orders sought by the respondents. Finally, it appears doubtful that such an order could be made at this point because section 87(1) of the Residential Tenancies Act, 2006 only permits a landlord to make an application for rent arrears to the Board when the tenant is still in possession of the unit.
[34] Accordingly, in the unique circumstances of this case, I find that the respondents’ application to the Board for rent abatement is an abuse of process.
Conclusion
[35] The appeal is allowed, and the respondents’ application to the Board is dismissed.
[36] The appellant is entitled to costs of $5,000 all inclusive, which is less than the amount sought, but reasonable in all the circumstances of this case.
Favreau J.
I agree _______________________________
Dambrot J.
I agree _______________________________
Penny J.
Released: March 16, 2021
CITATION: Trindade v. Jantzi, 2021 ONSC 1927
DIVISIONAL COURT FILE NO.: DC-19/51
DATE: 20210316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Penny and Favreau JJ.
BETWEEN:
Mary Trindade
Appellant (Landlord)
– and –
Alysia Jantzi, Brad Jantzi, Daniel Jantzi, Rachel Jantzi, Ryan Jantzi and Abby Jantzi
Respondents (Tenants)
REASONS FOR JUDGMENT
Released: March 16, 2021