[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Tucakov v. Fitzroy, 2021 ONSC 2829
DIVISIONAL COURT FILE NO.: 128/2020
DATE: 2021/04/19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Favreau JJ.
BETWEEN:
Peter Tucakov Appellant/ Landlord
– and –
Dean Fitzroy Respondent/Tenant
Kenneth Wise, for the Appellant/Landlord
Dean Fitzroy, a.k.a. Fitzroy Dean, on his own behalf, Respondent/Tenant
HEARD by videoconference: April 15, 2021
The Court (orally)
[1] This is an appeal by the Landlord from the decision of the Landlord and Tenant Board (the “Board”) dated February 19, 2020. In that decision the Board denied the Landlord’s application to terminate the Tenant’s forty-year tenancy on two bases: (1) The application was a collateral attack on the Board’s previous orders refusing to terminate the tenancy and, therefore, the doctrine of res judicata applied; and (2) The application was an abuse of the Board’s process.
[2] The Landlord advances three grounds for his appeal:
The Board erred in law in mechanically applying the doctrine of res judicata without regard for its residual discretion.
The Board erred in law in refusing to consider the Landlord’s evidence of alleged new circumstances, given that almost a year had passed since the Landlord’s last application to terminate was heard.
The Board erred in law by failing to recognize that the doctrine of res judicata should not be applied in a situation where a Landlord is seeking to terminate an ongoing tenancy on the basis of their good faith intention to occupy the premises for themselves or their child.
[3] We will deal with each of these argument in turn.
Residual Discretion
[4] We agree with the Landlord that the Board has a residual discretion as to whether to apply the doctrine of res judicata. However, that discretion would not be exercised in a situation where the Board finds that the proceeding at issue is an abuse of process. As already noted, the Board found that the Landlord’s application was an abuse of process after making the following determination:
This application is the latest of several attempts by the Landlord to terminate the Tenant’s tenancy and evict the Tenant from the rental unit, including Board file number TNL-12473-19, in which the Landlord previously claimed that his son requires the rental unit for residential use.
New Circumstances
[5] The Landlord submits that, given that almost a year had passed between the hearing giving rise to the order under appeal and his last hearing, it was likely that there would be new circumstances that would justify the bringing of a new application. We do not accept that the passage of time alone gives rise to a presumption that there is a new circumstance. In this case, a review of the transcript of the hearing at issue makes it clear that the alleged new circumstance being relied upon was the fact that the Landlord’s son had not testified in person at the prior hearing and was now prepared to do so. This is not a new circumstance that would justify the bringing of a new application to terminate on the exactly the same basis as the last application. In fact, this is the same argument that the Landlord made when he sought a review of the Board’s prior order dismissing his application. That review was denied. To seek to get around that denial by bringing a new application is, as the Board found, an abuse of the Board’s process.
Application of the Doctrine of Res Judicata
[6] This case illustrates why the Landlord’s submission that the doctrine of res judicata can never be applied to a situation like this one is without merit. To take that position would be to deny the Board the opportunity to control its own process by preventing a clear abuse of that process.
Conclusion
[7] For these reasons the appeal is dismissed. There will be no order as to costs.
Sachs J.
Backhouse J.
Favreau J.
Released: April 19, 2021
CITATION: Tucakov v. Fitzroy, 2021 ONSC 2829
DIVISIONAL COURT FILE NO.: 128/2020
DATE: 2021/04/19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Favreau JJ.
BETWEEN:
Peter Tucakov
Appellant/Landlord
– and –
Dean Fitzroy
Respondent/Tenant
REASONS FOR JUDGMENT
BY THE COURT
Released: April 19, 2021