APPEAL BOOK ENDORSEMENT

[1] This is an appeal from a decision of the Small Claims Court.

[2] The decision under appeal, made on November 3, 2023, is very short, cursory, and essentially point-form. It was prompted by a motion brought by the defendants (now respondents on appeal). They had moved to strike the claim in its entirety.

[3] After hearing submissions from both sides, the Deputy Judge granted the motion and struck the claim. As I read the “Order of the Court”, the decision to strike the claim was made for two independent reasons: (i) there was no reasonable cause of action pleaded, and (ii) the Small Claims Court had no jurisdiction over the matter.

[4] Mr. Gligoric did not draft the claim. The plaintiffs (one of them is now the appellant) were self-represented at the time. They sued the City of Hamilton and the property standards bylaw officer (“officer”) for $14,000.00, plus interest and costs. The handwritten claim form reads more like a complaint about the services of and treatment by the officer than a pleading. Read generously and liberally, as it had to have been read by the Deputy Judge and as it must be read by this Court on appeal, the claim alleges the targeting of the plaintiffs, the harassment of the plaintiffs, and bad faith conduct on the part of the defendants.

[5] There are two major issues raised on appeal – (i) that the Deputy Judge erred in his determination that the Small Claims Court had no jurisdiction over the matter, and (ii) that the Deputy Judge erred in his determination that there was no reasonable cause of action against either defendant.

[6] It would appear from the order under appeal that the first determination was made because the Deputy Judge found that the plaintiffs ought to have appealed the property standards order made against the property to the municipal committee designed to hear such appeals and then, if necessary, further to the Superior Court of Justice.

[7] The second determination was made because, according to the Deputy Judge, the officer had statutory immunity and that, for some reason unknown to this Court (because it is not explained in the decision under appeal), there was no cause of action against the City of Hamilton.

[8] I agree with my colleague, Justice LeMay, that the applicable standard of review is correctness on a question of law, palpable and overriding error on a question of fact, and somewhere along that spectrum on a question of mixed fact and law. Covenoho v. HomeLife Response Realty Inc., 2022 ONSC 5877, at paragraph 26, referring to the decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2022 SCC 33.

[9] I agree with Mr. Gligoric that the Deputy Judge erred in his determination that the Small Claims Court had no jurisdiction over the matter.

[10] Generally, a question of jurisdiction is a question of law and subject to review on a standard of correctness. Brewers Retail Inc. v. Campbell, 2023 ONCA 534, at paragraph 50.

[11] Respectfully, I am of the view that the Deputy Judge was wrong on the issue of jurisdiction. The notion that the plaintiffs ought to have appealed to the committee rested on the premise that the plaintiffs had been served with the order made against the property in question; that is clear from the plain wording of section 15(1) of the Building Code Act, 1992, S.O. 1992, c. 23, as amended (“BCA”), which refers to an owner or occupant “which has been served with an order…”.

[12] Thus, the Deputy Judge had to wrestle with the question of whether the plaintiffs had been served with the order made against the property.

[13] I do not know from the order under appeal whether the Deputy Judge turned his mind to that question. If he did, and if he decided that the plaintiffs had been served, then, with respect, that was a palpable and overriding error on an issue of mixed fact and law.

[14] The relevant property standards bylaw, at section 28(1), provides that the “owner” of the property had to be served with the order (mandatory language – “shall”), and that another interested party could have been served with the order (permissive language – “may”).

[15] The term “owner” is defined in the said bylaw. There are three categories of owners. Counsel for the respondents concedes that only the owner in fee simple (the first category) was served. Counsel for the respondents concedes further that the appellant may have met the definition of “owner” in the second category.

[16] Yet, counsel for the respondents maintains that it was enough for the one owner to have been served. I disagree. That is not what the bylaw says. If that is the practice of the City of Hamilton, and if that is what was intended by the drafters of the bylaw, then the City had better amend the bylaw. As it stands currently, there is nothing in the bylaw, particularly in the definition of “owner” or in section 28(1), that stands for the proposition, express or implied, that, where there is more than one person who meets the definition of “owner”, it is sufficient for just one of the owners to be served with the order. Nor does that make any public policy sense, in my view. The whole purpose of the service of the order is to ensure adequate notice and to allow for steps to be taken to address the alleged deficiencies or to appeal the order to the committee. Having the owner in fee simple served but ignoring an owner in the second category, for example, who it could reasonably be expected may very well be a distant person who does not live at the property, or frequent the property, or even have any regular contract with the owner in fee simple, simply makes no sense.

[17] There was no justification for any finding that the plaintiffs were served with the order, if that finding was made in the court below. It follows that the normal route for appeal, first to the committee and then to the Superior Court of Justice, under sections 15.3(1) and 15.3(4) of the BCA, were not engaged in this case. It was not reasonable for the plaintiffs to have been required, or even expected, to follow that pathway.

[18] With respect, the Deputy Judge erred in law in making a wrong decision on the jurisdictional issue.

[19] Nevertheless, this Court is of the opinion that the appeal must be dismissed.

[20] Regardless of whether the Deputy Judge erred in his reasoning as to why there was no reasonable cause of action disclosed by the plaintiffs’ pleading, the Deputy Judge’s decision to strike out the pleading under 12.02(1)(a) of the Rules of the Small Claims Court was correct.

[21] There was no reasonable cause of action pleaded.

[22] Mr. Gligoric’s argument about a loss of opportunity suffered by the plaintiffs, and/or some unspecified bad faith conduct on the part of the defendants, though ably made, is not borne out by the pleading itself, even on a most generous and liberal reading of it.

[23] The essence of the claim as pleaded is harassment, both by the officer and by the City of Hamilton.

[24] There is no free-standing civil tort of harassment that has been recognized in Ontario; this was confirmed by the Court of Appeal for Ontario in Merrifield v. Canada (Attorney General), 2019 ONCA 205, leave to appeal to the Supreme Court of Canada denied.

[25] Although the Court of Appeal for Ontario did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts (paragraph 53 in Merrifield, supra), there is no compelling reason why such a new tort ought to be recognized on the facts of this case.

[26] The correctness of the decision of the Deputy Judge to strike the claim as disclosing no reasonable cause of action, even if made for reasons different than what is outlined by this Court above, is sufficient to dispose of the appeal.

[27] The appeal is therefore dismissed.

[28] If the parties cannot resolve the issue of costs, they may file written submissions. Two pages maximum for each submission, excluding any necessary attachments. The respondents shall serve and file theirs by 4:00 p.m. on January 10, 2025. The appellant shall file hers within ten calendar days after her counsel’s receipt of the respondents’ submissions. No reply is permitted.

CJC, signed electronically

C.J. Conlan

December 11, 2024

Veeru Kantoor v. City of Hamilton, 2024 ONSC 6991

Case Summary

APPEAL BOOK ENDORSEMENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 1