Court File and Parties
CITATION: Shearer v. Oz, 2021 ONSC 7844
DIVISIONAL COURT FILE NO.: 686/21
DATE: 2021-11-29
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: charles shearer and emma shearer v. eran oz and jennfier oz
BEFORE: D.L. Corbett J.
HEARD: In Writing, In Chambers
Endorsement
[1] The applicants seek judicial review of decisions of the Landlord and Tenant Board ordering eviction, payment of arrears of rent and other relief.
[2] On August 23, 2021, I directed the Registrar to give notice pursuant to R.2.1.01 that the court is considering dismissing the application as frivolous, vexatious and an abuse of process:
The Registrar is directed to give notice to the applicants that the court is considering dismissing this application as frivolous, vexatious and an abuse of process and making an order that the applicants not be permitted to commence any further proceedings in Divisional Court respecting their tenancy without prior permission from an administrative judge of the Divisional Court. The basis for this notice is as follows:
The dispute between the parties was the subject matter of a final decision of the LTB on August 4, 2020.
The applicants appealed that decision to the Divisional Court. They also sought reconsideration before the LTB.
The appeal to this court was quashed by L.A. Pattillo J. on November 4, 2020 on the basis that the appeal "raises no question of law" and was "otherwise totally devoid of merit".
The LTB did not decide the reconsideration request until after Divisional Court had dismissed the appeal. The LTB denied the request for reconsideration on the basis of the conclusions reached by the Divisional Court.
The jurisdiction of the LTB to conduct a reconsideration hearing is extinguished by the decision of the Divisional Court on the merits of the underlying decision.
The applicants now seek judicial review, but do not raise any ground for such a review that was not or could not have been the subject matter of the appeal that has been dismissed.
The underlying dispute has been decided on a final basis by this court and the application is a collateral attack on this court's decision.
The respondents are directed not to respond to the R.2.1.01 notice unless this court subsequently directs otherwise.
The eviction order of the LTB is not stayed by reason of the applicants' application to this court and may be enforced without further order of this court or the LTB.
[3] For the reasons that follow the application is dismissed as frivolous, vexatious and an abuse of process pursuant to R.2.1.01.
[4] The applicants argue that the appeal proceedings have not finally disposed of this case for the following reasons:
(a) An appeal from the Landlord and Tenant Board is restricted to questions of law. They argue that there were procedural errors and unreasonable findings of fact, issues that may only be raised on an application for judicial review. Appeal rights do not foreclose an application for judicial review.
(b) The “review process” before the Landlord and Tenant Board and the appeal process in this court are “coextensive”. Pursuit of an appeal does not foreclose simultaneously or subsequently pursuing a review before the Landlord and Tenant Board.
[5] The first argument is technically correct but cannot provide a basis for an application for judicial review in this case. Litigation is not to be conducted by instalment. The time to seek judicial review was the same time as to bring an appeal; it is improper to await the results of an appeal and then to commence an application for judicial review in respect to the same decision. The deadline to bring an application for judicial review is thirty days from the decision under review: Judicial Review Procedure Act, RSO 1990, c. J.1, s.5(1). The decisions impugned in this application were made on August 4, 2020, December 10, 2020 and July 21, 2021 (the third decision being the review decision). The decision in this court of Pattillo J. was made November 4, 2020. This application was commenced on August 23, 2021.
[6] It is far too late to seek judicial review of the decisions of the LTB made in 2020. The applicants could have brought an appeal from the review decision of the LTB made in July 2021, although such an appeal would have, itself, been an abuse of process for the reasons I set out below. The applicants may not seek judicial review of the review decision without having availed themselves of their appeal rights.
[7] The applicants’ second argument is simply not correct. This court hears appeals from the “final” order of the Landlord and Tenant Board. It was open to the tenants to seek to have their appeal stayed pending disposition of the review before the Landlord and Tenant Board. It would have been open to a motions judge to grant or deny that stay, depending on all of the circumstances of the case. Unlike an administrative appeal, an administrative review is not a necessary step in the process, and it is for the tenant to decide whether to appeal the original decision or to await the decision of a request for review. However, once the court has adjudicated on the appeal, the matter is at an end (subject only to any further appeal that may be pursued by a motion for leave to appeal to the Court of Appeal). The Landlord and Tenant Board made no error of law in dismissing the review request after this court had disposed of the appeal. However, the Board’s reasons for dismissing the review may have disclosed an error: in my view it is arguable that the Board had no jurisdiction to entertain the review once this court had decided the appeal: at that point the original order was affirmed authoritatively and no further steps could be taken in connection with it by the LTB. If I am wrong about that conclusion, the LTB’s review decision discloses no error of law: the issues raised by the applicants in the review were decided authoritatively by Pattillo J. and it was an abuse of process of them to pursue review at the LTB after the decision of this court quashing their appeal.
[8] The substantive arguments identified by the applicants as bases for the application are as follows:
(a) There was no jurisdiction in the LTB to make the original order because of a defect in the N4 notice required for an L1 application;
(b) The LTB erred in finding that 7-days notice (to which the landlord testified) was sufficient to meet the 14-day notice requirement in RTA, s.191(2);
(c) There is fresh evidence available inconsistent with evidence presented by the landlord at the hearing in respect to service of process and notice;
[9] The first substantive argument raises a question of law about the jurisdiction of the LTB. That issue was available and had to be raised on the appeal. It cannot be raised now on an application for judicial review.
[10] The second substantive argument raises a question of law. That issue was available and had to be raised on the appeal. It cannot be raised now on an application for judicial review.
[11] As noted, the first two issues had to be raised on the appeal. And indeed they were: see 2020 ONSC 6685, paras. 21-37. It is an abuse of process to seek to raise them again in this application for judicial review.
[12] The third substantive argument is not a proper basis on which to ground an application for judicial review. Further, it concerns a contested evidence related to the procedural issues, not to the underlying substantive merits of the decision. That evidence had to be put before the LTB at first instance. If it was not available, the time to seek to adduce it was as “fresh evidence” in the appeal proceedings in this court.
[13] There were two series of issues before the Board: the alleged failure of the tenants to pay rent, and alleged failures by the landlord to address deficiencies in the premises. It is clear law that a tenant may not grant himself a rent abatement – rent is to be paid unless and until the Board grants a rent abatement. The Board exercised its discretion to deal with rent arrears before deciding issues respecting claimed bases for abatement of rent. Pattillo J. found that this was a proper exercise of the Board’s discretion (2020 ONSC 6685, para. 36). I agree.
[14] Finally, the applicants appear to seek relief in this application in respect to the costs awarded against them by Pattillo J. That claim is a collateral attack on an authoritative court order of this court and is inherently an abuse of process.
[15] All of the underlying issues raised in this application have been decided already. The application is dismissed pursuant to R.2.1.01, without costs.
[16] The applicants have brought a meritless appeal and now a meritless application for judicial review. I decline to restrict their access to this court on the basis of their litigation record so far. However, the applicants are cautioned that if they bring further proceedings in respect to matters that have already been decided on a final basis, that could lead the court to make an order restricting their unsupervised recourse to the justice system.
“D.L. Corbett J.”
November 29, 2021