Court File and Parties

CITATION: Kurdina v. Toronto Community Housing Corporation, 2022 ONSC 6131

DIVISIONAL COURT FILE NO.: 561/22

DATE: 20221108

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Galina Kurdina, Appellant

AND:

Toronto Community Housing Corporation, Respondent

BEFORE: Nishikawa J.

COUNSEL: Galina Kurdina, in person

HEARD at Toronto: In writing

ENDORSEMENT

[1] The Appellant, Galina Kurdina, seeks to appeal the order of Deputy Judge Cynthia Fromstein of the Small Claims Court, dated September 29, 2022, dismissing her claim seeking damages of $35,000 for misrepresentation made by the Respondent landlord in a proceeding before the Landlord Tenant Board (“LTB”). The action was dismissed pursuant to Rule 12.02(3) of the Rules of the Small Claims Court as a waste of time and abuse of process. The Appellant’s claim is based on allegations that before the LTB, a representative of the Toronto Community Housing Corporation made false statements about a bedbug infestation.

[2] On October 11, 2022, I directed that the Registrar send out notice to Ms. Kurdina advising her that this Court was considering dismissing her appeal under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as frivolous, vexatious or an abuse of process because of the following considerations:

• The Deputy Judge found that the matter was outside the Small Claims Court’s jurisdiction because the matter falls under the jurisdiction of the Landlord Tenant Board;

• The matter was fully litigated before the LTB;

• There is no cause of action for “misrepresentation” arising from testimony given before the LTB; and

• It therefore appears that the proposed appeal cannot proceed.

[3] This court may stay or dismiss an appeal if it appears to be frivolous, vexatious, or an abuse of process: Rule 2.1.01, Rules of Civil Procedure. Rule 2.1.01 can only be used in the “clearest of cases”, where here the frivolous or abusive nature of the proceedings is apparent on the face of the pleadings: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8; Khan v. Law Society of Ontario, 2020 ONCA 320 at para. 6. Rule 2.1.01 should not be used to weed out cases that might be frivolous, vexatious or an abuse of process or where it is a close call: Visic at para. 8.

[4] On October 12, 2022, the Appellant provided her written submissions. The Appellant maintains that the issue of misrepresentation was not litigated before the LTB. In her written submissions, the Appellant argued the substance of her appeal of the Deputy Judge’s order.

[5] The Deputy Judge was not incorrect in finding that the issue had already been fully litigated before the LTB, including all appeals. The Appellant appealed the LTB decision to this court, which appeal was dismissed: 2021 ONSC 544. Leave to appeal was denied by both the Court of Appeal and the Supreme Court of Canada. This was the proper way to address any issue that the Appellant had with the LTB proceeding, including any alleged misrepresentation in the course of testimony. On the appeal, this court found that the LTB’s decision about the credibility of the Respondent’s witness disclosed no error of law: 2021 ONSC 544, at para. 13.

[6] Moreover, the Appellant’s claim for misrepresentation, and therefore her appeal, is precluded by the doctrine of witness immunity. The doctrine of witness immunity is summarized in Peter Sankoff, The Law of Witnesses in Canada, § 21:14, as follows:

There are two important aspects to the rule. The first is that anything testified to by a witness in judicial proceedings enjoys absolute privilege for the purposes of the law of defamation and cannot, therefore, be the subject of a civil action for slander. The second aspect is arguably even more significant, for it precludes anyone from bringing a civil action for harm supposedly caused by a witness's testimony.

[7] In Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 236 N.S.R. (2d) 104, at paras. 101-107, 112-119, Cromwell J.A. (as he then was) found that it was undisputed that witness immunity extends to all negligence actions and not just defamation, and described this as settled law. See also: Cook v. Milborne, 2018 ONSC 419, at paras. 51-52.

[8] In Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35, the Ontario Court of Appeal summarized the doctrine of absolute privilege as follows:

The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, 2013 ONCA 258, at para. 34.

[9] The Appellant is precluded from bringing a claim for misrepresentation against the Respondent for statements made in the proceeding before the LTB because any such statements are protected by the doctrine of absolute privilege. The opportunity to challenge the testimony of the Respondent’s witness was by appeal. The Appellant pursued an appeal and was ultimately unsuccessful. The action was thus properly dismissed by the Deputy Judge. This appeal is frivolous, vexatious and without any basis in law. I am satisfied that the frivolous or abusive nature of the appeal is apparent on the face of the notice of appeal.

[10] Accordingly, the appeal is dismissed pursuant to r. 2.1.01. Given that the responding party was not required to make any submissions in response to the Court’s Rule 2.1.01 notice, no costs are ordered.

“Nishikawa J.”

Date: November 8, 2022```