SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-466733

DATE: 20140430

RE: Tomasz Raba, Plaintiff

AND:

Landlord and Tenant Board, Defendant

BEFORE: Carole J. Brown J.

COUNSEL:
Tomasz Raba, representing himself

Heather Burnett, for the Defendant

HEARD: April 9, 2014

ENDORSEMENT

[1] The defendant, the Landlord and Tenant Board, seeks an order dismissing the plaintiff's action on the ground that the defendant does not have the legal capacity to be sued and that the action is an abuse of process. In the alternative, the defendant seeks an order striking the statement of claim in its entirety without leave to amend on the ground that the statement of claim fails to disclose a reasonable cause of action.

[2] The plaintiff's action arises from two hearings before the Landlord and Tenant Board ("LTB"). The first, brought by the landlord, sought an order for eviction of the tenant, which was granted. The second, brought by the plaintiff for an abatement of rent was denied.

[3] In this action, the plaintiff claims damages of $1 million for judicial bias, denial of a fair and impartial hearing, and numerous procedural injustices allegedly experienced by the plaintiff at the hearings. The plaintiff claims that he was denied procedural fairness and justice, that he was discriminated again by the board members and also makes other allegations against the LTB members.

[4] The issues before this Court include:

1. Whether the LTB is a sueable entity;

2. Whether the plaintiff’s action is an abuse of process;

3. Whether the plaintiff’s claim discloses any reasonable cause of action.

Whether the LTB Is a Sueable Entity

[5] The jurisprudence has recognized that statutory bodies exercising a quasi-judicial function lack legal status to be sued for actions taken in carrying out those functions: Ontario v Gratton-Masuy Environmental Technologies Inc. (cob Ecoflo Ontario), 2010 ONCA 501 at 45-47; Hollinger Bus Lines Limited v Ontario Labour Relations Board, 1952 16 (ON CA), [1952] O.J. No 439 (CA), York Advertising Ltd v Ontario [2004] OJ 949 at 42; Tal v Ontario [2011]OJ No 1791 at 2.

[6] The plaintiff argues that there is no case law dealing specifically with the LTB and, therefore, it is a sueable entity. I do not accept this argument for the reasons given below.

[7] To be sued, the defendant must be a natural person, a body corporate, or a body legislatively endowed with the capacity to be sued.

[8] In Hollinger Bus Lines Limited v Ontario Labour Relations Board, supra, the Court recognized that a board or association of individuals will only have the capacity to sue or be sued if the enabling statute so provides. The court observed at para. 15 as follows:

15 The whole scheme and purpose of the Act is to deal with certain phases of the employer-employee relationship. The Board does not carry on any business. Its function is primarily administrative and it has been given power to exercise certain functions of a judicial nature. There is nothing in the Act remotely suggesting that it was intended by the Legislature that the Board should have the capacity either to sue or to be sued.

[9] Similarly to the Hollinger Bus Lines case, the purpose of the LTB is to deal with certain phases of the landlord-tenant relationship. The enabling statute of the LTB, the Residential Tenancies Act 2006, S.O. 2006, c.17 ("the Act" or "the RTA") does not constitute the LTB as a corporate entity which is able to be sued. Nor does it endow the LTB with the capacity to be sued, either expressly or by necessary implication. The LTB is acting in a quasi-judicial capacity, not subject to suit. The LTB's powers are delegated by statute as set forth in the RTA. It has the power to determine all questions of law and fact as regards all matters within its jurisdiction. It has the power to hold hearings, consider evidence and exercise its discretion in the rendering of decisions. It is subject to the Statutory Powers Procedure Act (SPPA).

[10] The RTA seeks to limit civil liability for the powers exercised under it. Section 232(1) affords express immunity from civil liability to board members and states that no proceeding for damages can be commenced against a board member for any act done in good faith, in accordance with their duties or powers under the Act. To permit a litigant to ignore the immunity provisions afforded by the RTA and sue the board itself would be contrary to the intent of the Act: Taylor v Levitt [2008] O. J. No. 4088 at 8; LMK v Ontario, [1996] O.J. No. 812 at 48-50.

[11] The plaintiff argues that the board members were acting in bad faith such that the immunity afforded by s.232 (1) is not applicable. There is no evidence to support this allegation.

Abuse of the Court's Process

[12] Further, this suit constitutes a collateral attack on administrative decisions of the LTB. The plaintiff attempts in this civil action to challenge the validity of the Orders of the LTB on the basis of judicial bias and discrimination and to essentially re-litigate the issues originally decided by the LTB. An Order of a court or tribunal can only be challenged pursuant to the appropriate review mechanisms. Pursuant to the RTA, there are internal review mechanisms and a limited statutory right of appeal. A challenge of the LTB's decision is properly brought by way of an internal review or by judicial review to the Divisional Court. The plaintiff exercised its right to have the decision reviewed internally, which resulted in the decision being upheld. A challenge by way of judicial review to the Divisional Court is only on a question of law and must be brought within 30 days. The plaintiff did not pursue this avenue. A challenge is not to be brought by way of a civil action against a judicial or quasi-judicial body or its members. This civil action which represents a collateral attack on the LTB's decision is an abuse of the process of the court and cannot be permitted to proceed.

[13] I find that the LTB is not a sueable entity. I further find that this action constitutes a collateral attack on the decisions of the LTB and must be dismissed as an abuse of process.

[14] Despite this Court's findings as set forth above, I will proceed to consider the alternative argument based on R.21.01(1)(b).

Whether the Statement of Claim Discloses a Reasonable Cause of Action

Rule 21.01(1)(b)

[15] Rule 21.01(1)(b) permits the court to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. No evidence is admissible on a motion pursuant to this rule.

[16] The test for determining whether a pleading should be struck is whether, assuming the facts as stated in the statement of claim can be proven, it is plain and obvious that no reasonable cause of action is disclosed. The pleading should not be struck if there is a chance that the plaintiff may succeed. Only if the action is certain to fail because it contains a radical defect should the relevant portions of the statement of claim be struck: Hunt v Carey Canada Inc., 1990 90 (SCC), [1990] S.C.J. No. 93, [1990] 2 S.C.R. 959. The issue to be determined is whether, assuming the alleged facts to be true, the action is nevertheless certain to fail: Louie v Lastman [2002] O.J. No. 3522, 61 O.R. (3d) 459 (Ont. C.A.).

[17] The governing principles as regards striking a statement of claim are as follows: all allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proven; the defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiff could not succeed; the novelty of a cause of action will not militate against the plaintiff; the statement of claim must be read generously to allow for drafting deficiencies; and if the claim has some chance of success, it must be permitted to proceed. The threshold for sustaining a pleading is not high: McKinnon v Ontario Municipal Employees Retirement Board, 2007 ONCA 874 (Ont. C.A.).

[18] The plain and obvious test does not absolve the plaintiff from the obligation to observe the rules of pleading. The cause of action asserted may be found to be legally insufficient if there has been a failure to plead material facts necessary to establish the legal elements of a recognized cause of action or if it is clear that the law does not recognize the cause of action on which the plaintiff seeks to rely.

[19] In this case, the plaintiff makes bald allegations without pleading the material facts and the requisite elements of the claims, necessary to support the causes of action alleged. The claims are deficient or, in some cases, not known to law. Based on my review of the statement of claim and taking into account that it must be read generously to allow for drafting deficiencies, I find that it is devoid of a sustainable cause of action, as well as supporting material facts required. It is neither clear nor concise, is vague, rambling, and replete with evidence. In essence, it does not comply with the rules of pleading.

[20] I find that the statement claim does not disclose a reasonable, sustainable cause of action and should be struck in its entirety. Given the deficiencies in the claim, I do not find that it could be salvaged by amendment, and accordingly, leave to amend is not warranted.

[21] Based on the foregoing, I order the statement of claim to be struck without leave to amend.

Conclusion

[22] Based on all of his the foregoing, I grant the defendant’s motion. The plaintiff’s action is dismissed. The summonses to witness served by the plaintiff on several board members are quashed.

[23] The need for approval of the Order as to form and content is dispensed with.

Costs

[24] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: April 30, 2014