CITATION: Hanley v. Furlong-Jewer, 2016 ONSC 1038
COURT FILE NO.: FS-326-15
DATE: 2016-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christine Carol Hanley
Applicant / Responding Party
– and –
Enita Furlong-Jewer
Respondent / Moving Party
COUNSEL:
Tania Harper, Counsel for the Applicant / Responding Party
J. Greg Murdoch and Jennifer Black, Counsel for the Respondent / Moving Party
HEARD: January 21, 2016
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] In her motion, the respondent seeks summary judgment dismissing the applicant’s family law claims and related relief. The underlying basis for the motion is a determination and order previously granted by the Landlord and Tenant Board and a dismissal of an appeal to Divisional Court. For the reasons that follow, the motion is granted.
Background
[2] Christine Carol Hanley is 47 years of age. She has three children, presently 26, 23 and 22 years of age. Ms. Hanley has been separated, but not divorced, from her husband since 1998. She resides in Kitchener.
[3] Enita Furlong-Jewer is 56 years of age. She has two children, presently 30 and 27 years of age. Ms. Furlong-Jewer and her former husband divorced in 2006. She also resides in Kitchener.
Relationship
[4] There is a dispute regarding the purported relationship between the parties. While a determination of that issue is not required in this motion, it is helpful to briefly review the allegations so as to better understand the nature of their dispute.
[5] The parties never cohabited. Each maintained a separate residence. Nevertheless, Ms. Hanley says they carried on a spousal or spousal-like relationship from May 1998 until July 2013 when it was terminated by Ms. Furlong-Jewer. She says they were integrated financially, sexually, emotionally and socially. Ms. Hanley reports they spent time together during the week, alternate weekends when the children were with their respective fathers, attended family functions together and spent most of their summers at a LGBT campground in Dufferin County.
[6] Ms. Furlong-Jewer disagrees. She simply says they had an on again off again relationship that never amounted to more than dating. Ms. Furlong-Jewer goes on to say they were not spouses or anything like spouses.
The Property
[7] A residential property was acquired on May 27, 2005. Shortly thereafter, Ms. Hanley and her children moved into the residence. Ms. Furlong-Jewer and her children resided at a different residence.
[8] Title to the property was taken in the name of Ms. Furlong-Jewer. The purchase price was $165,000. A mortgage was obtained for $130,000. Ms. Furlong-Jewer paid the balance in cash with funds obtained from the sale of her family cottage. Ms. Hanley made no contributions to the purchase price.
[9] Again, there is an evidentiary dispute regarding the acquisition and occupation of the property. As before, determination of these issues is not required.
[10] Ms. Furlong-Jewer reports the purchase as an investment. After obtaining the property, she began searching, without success, for a suitable tenant. Ms. Furlong-Jewer says she then approached Ms. Hanley, suggesting she rent the house and move out of a problematic social assistance housing complex. The rent was set at $850 monthly, close to the mortgage payment amount. In the Summer of 2014, Ms. Furlong-Jewer stated an intention to sell her own residence and move into the property so as to generate funds to assist in her future retirement. Ms. Hanley, she says, refused to vacate the property.
[11] Ms. Hanley’s version of events is different. She says they decided to purchase property together in 2005. They had an agreement, according to Ms. Hanley. Ms. Furlong-Jewer would use her cottage sale proceeds for the down payment and Ms. Hanley would pay the mortgage, taxes, utilities, maintenance and renovations. In addition, Ms. Hanley would pay Ms. Furlong-Jewer’s cell phone to offset the house insurance expense. Ms. Hanley believed she was earning equity in the property by virtue of these payments. She reports spending about $25,000 for renovation material, $2,900 for a contractor and contributed labour valued at $30,000.
Landland and Tenant Board
[12] Ms. Furlong-Jewer served Ms. Hanley with a notice to terminate the tenancy and to vacate the premises. She subsequently made application to the Landlord and Tenant Board. Ms. Hanley opposed.
[13] A hearing took place on July 3, 2014. Ms. Furlong-Jewer was represented by a paralegal. Ms. Hanley’s brother appeared as her agent. Both parties, and others, testified at the hearing.
[14] Board Member Kevin Lundy released his decision and order on July 11, 2014. He determined Ms. Hanley was a tenant, rejecting her assertion of a spousal relationship and constructive trust. The Board Member also found that Ms. Furlong-Jewer, in good faith, required possession of the rental unit for the purpose of residential occupation. The order terminated the tenancy as of August 31, 2014 and directed Ms. Hanley to move out of the rental unit on or before that date.
Board Review
[15] Ms. Hanley requested a review of the aforementioned order by application dated August 5, 2014, alleging an error of jurisdiction to hear the matter, errors how the Board looked at the evidence or made conclusions and also asserting a series of errors of law.
[16] Board Member Robert Murray attended to the review without a hearing. His reasons and a review order were released on August 7, 2015. The Board Member denied the request to review, concluding there was no error in law with respect to the jurisdiction of the Board or in the application of the Residential Tenancies Act to the facts of the case.
Divisional Court
[17] In July 2014, Ms. Hanley retained a lawyer, Adam Keeping of Jordan Battista LLP in Toronto. Mr. Keeping served and filed a Notice of Appeal to Divisional Court in Hamilton. As this was, in my view, a critical event in this case, the relief sought and grounds for appeal are set out in their entirety, as follows:
THE APPELLANT, CHRISTINE HANLEY, APPEALS to the Divisional Court from the order of Member Kevin Lundy of the Landlord and Tenant Board dated July 11, 2014 made at London, Ontario.
THE APPELLANT ASKS that the order of Member Lundy be set aside and an order be granted as follows:
An Order that the Appellant, Christine Hanley and the Respondent, Enita Furlong-Jewer are not in a landlord-tenant relationship.
An Order that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) does not apply to the relationship between the Appellant, Christine Hanley and the Respondent, Enita Furlong-Jewer.
An Order that the Landlord and Tenant Board does not have jurisdiction to decide matters related to the relationship between the Appellant, Christine Hanley and the Respondent, Enita Furlong-Jewer, including matters related to the breakdown of their relationship or the either party’s occupation or either party’s property.
An Order restraining the Respondent, Enita Furlong-Jewer, from bringing any further proceedings before the Landlord and Tenant Board against or relating to the Appellant, Christine Hanley.
An Order that any and all issues arising from to the breakdown of the parties’ relationship, including claims to ownership and possession of property and questions of support, whether arising by statute or at common law or in equity, would be properly brought and determined in the Ontario Superior Court of Justice (Family).
In the alternative, an Order remitting the matter back to the Landlord and Tenant Board for a new hearing before a different Board Member with specific directions.
An Order for costs of this Appeal on a substantial indemnity basis and post-judgment interest pursuant to section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Such further and other relief as counsel may advise and this Honourable Court may deem just.
THE GROUNDS OF APPEAL are as follows:
The parties began a friendship in or about January 1998. Both parties we [sic] closeted lesbians. Both parties worked at the Waterloo Catholic District School Board.
The parties began a romantic sexual relationship in May 1998.
The parties’ relationship soon grew into a spousal or spousal-like relationship. The Respondent, Ms. Furlong-Jewer, remained closeted. Therefore, the parties maintained two residences. The parties slept together at both residences.
Both parties have children from previous relationships. The parties spent summers together with the children at the Respondent’s cottage.
The parties jointly planned for their future together.
In 2005, the parties shopped for homes together, and purchased a home together in the Respondent’s, Ms. Furlong-Jewer’s name (the “home”).
In 2009, the parties shopped for summer properties together, and purchased a home together, and purchased a trailer together in the Appellant’s, Ms. Hanley’s name (the “trailer”).
The expenses for the home and the trailer were shared between the parties. The parties shared the cost of the mortgage on the home equally. The parties agreed and understood the home to be their joint property, and both parties referred to is as such. The parties’ close friends and family also referred to the home as such.
As the Respondent, Ms. Furlong-Jewer, remained closeted, she continue [sic] to maintain a separate residence. The parties continued to sleep together at the home, and Ms. Hanley bore the expense.
The parties undertook renovations and improvements to the home, and Ms. Hanley bore the expense.
The parties spent their summers together at the trailer.
In July 2013, the Respondent, Ms. Furlong-Jewer, ended the parties’ relationship. She began living full-time at her separate residence. The parties began dividing their time at the trailer and continued to share the expenses. In late 2013, the Respondent took full possession of the trailer and began paying all of the expenses. Ms. Hanley remained in the home and the parties continued to share expenses.
In May 2014, the Respondent, Ms. Furlong-Jewer, demanded that the Appellant begin paying a larger share of the mortgage. The Appellant refused.
The Respondent applied to the Landlord and Tenant Board for an order that the Appellant must move out of the home, and allowing the respondent to evict the Appellant from the home.
On July 11, 2014, Landlord and Tenand [sic] Board Member Kevin Lundy granted that order, specifying that the Appellant must move out of the home on or before August 31, 2014, and that starting September 1, 2014, the Respondent may file the order with the sheriff for enforcement.
The trailer remains in Appellant’s, Ms. Hanley’s name. The home remains in the Respondent’s Ms. Furlong-Jewer’s name.
The Respondent, Ms. Furlong-Jewer, continues to have use of the trailer. The Appellant, Ms. Hanley, continues to have use of the home.
Member Lundy of the Landlord and Tenant Board erred in law as follows:
a. Finding that the Landlord and Tenant Board had jurisdiction to hear the Application;
b. Denying Ms. Hanley’s request for an adjournment;
c. Refusing to admit relevant evidence;
d. Refusing to conduct a proper voir dire to determine the admissibility of evidence;
e. Finding that the testimony of witnesses Ms. Hanley sought to call to testify as to the nature of the relationship would be inadmissible on the grounds that such evidence would be “opinion” evidence and witnesses would be “non-experts”;
f. Misinterpreting and misapplying the equitable doctrines of constructive trust and unjust enrichment, including but not limited to the member’s reliance on the Blacks Law Dictionary definition of constrastive [sic] trust, which does not define the doctrine of constructive trust in Canada, but instead reflects the law in the United States;
g. Misinterpreting and misapplying of the term “cohabit” (or “cohabited” or cohabitate”) as referenced in the Residential Tenancies Act, and/or as defined at common law or in equity;
h. Applying the restrictive definition of “spouse” found at section 1(1) of the Family Law Act, which applies only to legally married spouses;
i. In his incorrect interpretation and application of the term “equity”, and consequently in finding that Ms. Hanley holds no “equity” in the home;
j. In his incorrect interpretation and application of the term “beneficiary”, and consequently in finding that Ms. Hanley is not the “beneficiary” of any transfer involving the property;
k. By failing to refuse the Application, or failing to consider whether the Application would be required to be refused, pursuant to subsection 83(3)(c) of the Residential Tenancies Act;
l. By failing to admit evidence, including but not limited to evidence of the breakdown of the parties’ relationship and Ms. Hanley’s consequent attempts to assert her rights arising from same, including those rights in relation to the parties’ other property, relevant to the determination of whether the Application would be required to be refused pursuant to subsection 83(3)(c) of the Residential Tenancies Act.
- The grounds of appeal are the errors set out above and such further and other grounds as counsel may advise and this Honorable Court may permit.
[18] Mr. Keeping and/or Ms. Hanley neglected to perfect the appeal. In result, Mr. Murdoch, on behalf of Ms. Furlong-Jewer, served a motion to dismiss the appeal. The order was granted on April 22, 2015. Costs were awarded to Ms. Furlong-Jewer in the amount of $750. Such remain unpaid.
Civil Action
[19] Ms. Hanley ceased payments to Ms. Furlong-Jewer following the Landlord and Tenant Board order in July 2014. She remained living at the property. Following the Divisional Court dismissal order, Ms. Furlong-Jewer commenced a civil action to enforce the Board’s eviction order and for payment of accumulated rental arrears, being court file C-483-15.
[20] Ms. Hanley vacated the property in June 2015.
[21] The civil action was consolidated with the within family law proceeding.
This Proceeding
(i) Application
[22] Ms. Hanley commenced this proceeding by application issued May 1, 2015. She seeks an order as follows:
A declaration that the Applicant and Respondent carried on a spousal-like relationship from September 1998 until July 2013;
An Order for the registration of a Certificate of Pending Litigation upon the lands and premises known municipally as 339 Westwood Drive, Kitchener, Ontario, pursuant to section 103 of the Courts of Justice Act;
A declaration that the Applicant is the beneficial owner of the property municipally known as 339 Westwood Drive, Kitchener, Ontario, based upon the doctrines of constructive or resulting trust and unjust enrichment, and/or proprietary estoppel;
A declaration that the Respondent is holding the property municipally known as 339 Westwood Drive, Kitchener, Ontario, in trust for the Applicant based upon the doctrines of constructive or resulting trust and unjust enrichment, and/or proprietary estoppel;
In the alternative, damages in an amount equal to the present day value of all maintenance, renovations and improvements made to the property municipally known as 339 Westwood Drive, Kitchener, Ontario by the Applicant by agents or contractors engaged by her, on a moneys paid and quantum meruit basis;
Further damages in an amount equal to the present day value of all payments made from the Applicant to the Respondent;
An order that such damages as claimed herein be secured as an equitable lien against title to the property or properties municipally known as 339 Westwood Drive, Kitchener, Ontario and/or 17 Theresa Street, Kitchener, Ontario and the contents thereof;
An order that the trailer located at Rainbow Ridge Resort in Dufferin County be immediately listed for sale and the proceeds divided equally.
In the alternative to paragraph 8, the Respondent shall pay to the Applicant the sum of $1,350.00 for the Applicant’s share of the trailer and shall forthwith transfer the trailer to the Respondent’s name. The Applicant shall cooperate with all registration documents;
An order for the valuation of the Respondent’s property, including property to which she holds legal title, at her expense;
(ii) Certificate of Pending Litiation
[23] Pursuant to Ms. Hanley’s motion without notice, Sloan J. granted an order for a certificate of pending litigation on May 21, 2015. The order was not registered on title to the property until July 29, 2015.
(iii) Answer
[24] In her answer, dated June 16, 2015 Ms. Furlong-Jewer opposes all claims presented by Ms. Hanley and seeks an order dismissing same. In addition, Ms. Furlong-Jewer requests an order that Ms. Hanley pay the rental arrears from August 1, 2014 to June 2015, in the monthly amount of $850, and pay any expenses incurred to repair the rental home due to damage done by Ms. Hanley.
(iv) This Motion
[25] In her motion, dated October 9, 2015 and first returnable on October 22, 2015 Ms. Furlong-Jewer seeks summary judgment as follows:
(a) dismissing Ms. Hanley’s family law claim;
(b) discharging the certificate of pending litigation; and
(c) permitting her to proceed with her application in court file C-483-15.
Positions of the Parties
[26] I will attempt to briefly identify the positions of the parties based upon the factums and submissions of counsel.
(i) Respondent – Moving Party
[27] Mr. Murdoch advances the following position of Ms. Furlong-Jewer:
Ms. Hanley’s attempt to re-litigate matters already decided are a collateral attack on the ruling of the Landlord and Tenant Board and on an abuse of process
the Landlord and Tenant Board had exclusive jurisdiction to deal with Ms. Furlong-Jewer’s application to terminate the tenancy and evict Ms. Hanley
reliance is placed on the principles of issue estoppel, collateral attack and abuse of process (as hereafter discussed)
Ms. Hanley’s family law proceeding is an attempt to sidestep and ignore the Board’s order without following the prescribed route to challenge that decision
Divisional Court has the authority to determine if the Board had jurisdiction, if that jurisdiction was properly followed and the correctness of the decision
Ms. Hanley acknowledges the appropriate route to follow with her appeal to Divisional Court
summary judgment ought be granted as there is no genuine issue requiring a trial
(ii) Applicant – Responding Party
[28] Ms. Harper articulates Ms. Hanley’s position as follows:
while the Board has exclusive jurisdiction to determine applications under the Residential Tenancies Act, it does not have jurisdiction to decide the claims of Ms. Hanley based on the doctrines of constructive or resulting trust, unjust enrichment and/or proprietary estoppel
only the Court has jurisdiction to entertain Ms. Hanley’s equitable claims
parallel proceedings before the Board and the Court, even on the same facts, are permissible
issue estoppel, collateral attack and abuse of process do not apply as the Board was only asked to determine if there was a landlord and tenant relationship whereas in this proceeding the issues are whether the parties carried on a spousal or spousal-like relationship and whether Ms. Hanley is the beneficial owner of the property
even if those principles apply, the Court should exercise its discretion to relieve against the harsh effects in the circumstances in this case
there are genuine issues in this case requiring a trial.
Discussion and Analysis
(i) Summary Judgment
[29] The relevant provisions of Rule 16, Family Law Rules, are as follows:
- (1) WHEN AVAILABLE – After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
(6) NO ISSUE FOR TRIAL – If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
(12) MOTION FOR SUMMARY DECISION ON LEGAL ISSUE – The court may, on motion,
(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) dismiss or suspend a case because,
(i) the court has no jurisdiction over it,
(ii) a party has no legal capacity to carry on the case,
(iii) there is another case going on between the same parties about the same matter, or
(iv) the case is a waste of time, a nuisance or an abuse of the court process.
[30] The subject matter of this motion is appropriate for summary judgment.
(ii) Landlord and Tenant Board
[31] The Landlord and Tenant Board is a specialized tribunal. The relevant portions of the Residential Tenancies Act 2006 are as follows:
Purposes of Act
- The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants to provide for the adjudication of disputes and for other processes to informally resolve disputes.
Interpretation
2.(1) In this Act,
“landlord” includes,
(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit
“spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”)
“tenant” includes a person who pays rent in return for the right to occupy a rental unit …
Notice, landlord personally, etc., requires unit
- (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by,
(a) the landlord;
Application by landlord
- (1) A landlord may apply to the Board for an order terminating a tenancy and evicting the tenant if the landlord has given notice to terminate the tenancy under this Act or the Tenant Protection Act, 1997.
Board’s jurisdiction
- (2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
Power to determine law and fact
- The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act.
Findings of Board
- (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.
Order, final binding
- (1) Except where this Act provides otherwise, and subject to section 21.2 of the Statutory Powers Procedure Act, an order of the Board is final and binding.
Appeal rights
- (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
Board to receive notice
(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal.
Board may be heard by counsel
(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.
Powers of Court
(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Board with the opinion of the Divisional Court.
Same
(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
[32] Ms. Furlong-Jewer made application to the Board under sections 69 and 48. Board Member Lundy heard evidence by and on behalf of the parties. He determined there was a landlord and tenant relationship, rejecting Ms. Hanley’s assertion that it was, instead, a spousal relationship. Having regard to the statutory provisions above, the Board clearly had the jurisdiction and ability to analyze the evidence, make the findings and grant an order.
[33] Ms. Hanley’s request for review of the Board’s decision, essentially on the basis of procedural fairness, was dismissed.
[34] Ms. Hanley appealed to Divisional Court on questions of law, as was her right under section 210. In my view, the relief sought and grounds for appeal, as previously identified, are the same issues Ms. Hanley presented in her application in this proceeding. Divisional Court had the power to deal with these issues.
[35] On Ms. Hanley’s evidence, the relationship ended in July 2013. She had ample opportunity to pursue family law remedies but did not do so in a timely manner. Mr. Furlong-Jewer chose the venue by applying to the Landlord and Tenant Board. There is an argument, Ms. Hanley attorned to the jurisdiction of the Board by participation in the hearing. In any event, her decision to not pursue the appeal, I conclude, was fatal to her purported family law claims. In my view, these are not parallel proceedings. The ultimate result from Board’s proceedings is a final and binding order. The parties were in a landlord and tenant relationship.
(iii) Issue Estoppel, Collateral Attack and Abuse of Process
[36] The equitable doctrines of issue estoppel, collateral attack and abuse of process are connected to each other. These doctrines have been recognized for some time, more recently summarized by Abella J. in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC, as follows:
[27] The three preconditions of issue estoppel are whether the same question has been decided; whether the earlier decision was final; and whether the parties, or their privies, were the same in both proceedings (Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248, at p. 254). These concepts were most recently examined by this Court in Danyluk, where Binnie J. emphasized the importance of finality in litigation: “A litigant . . . is only entitled to one bite at the cherry. . . . Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided” (para. 18). Parties should be able to rely particularly on the conclusive nature of administrative decisions, he noted, since administrative regimes are designed to facilitate the expeditious resolution of disputes (para. 50). All of this is guided by the theory that “estoppel is a doctrine of public policy that is designed to advance the interests of justice” (para. 19).
[28] The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings. It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629.
[29] Both collateral attack and res judicata received this Court’s attention in Boucher. The Ontario Superintendent of Pensions had ordered and approved a partial wind-up report according to which members of the plan employed in Quebec were not to receive early retirement benefits, due to the operation of Quebec law. The employees were notified, but chose not to contest the Superintendent’s decision to approve the report. Instead, several of them started an action against their employer in the Quebec Superior Court claiming their entitlement to early retirement benefits. LeBel J. rejected the employees’ claim. Administrative law, he noted, has review mechanisms in place for reducing error or injustice. Those are the mechanisms parties should use. The decision to pursue a court action instead of judicial review resulted in “an impermissible collateral attack on the Superintendent’s decision”:
Modern adjective law and administrative law have gradually established various appeal mechanisms and sophisticated judicial review procedures, so as to reduce the chance of errors or injustice. Even so, the parties must avail themselves of those options properly and in a timely manner. Should they fail to do so, the case law does not in most situations allow collateral attacks on final decisions . . . . [para. 35]
[30] In other words, the harm to the justice system lies not in challenging the correctness or fairness of a judicial or administrative decision in the proper forums, it comes from inappropriately circumventing them (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 46).
[31] And finally, we come to the doctrine of abuse of process, which too has as its goal the protection of the fairness and integrity of the administration of justice by preventing needless multiplicity of proceedings, as was explained by Arbour J. in Toronto (City). The case involved a recreation instructor who was convicted of sexually assaulting a boy under his supervision and was fired after his conviction. He grieved the dismissal. The arbitrator decided that the conviction was admissible evidence but not binding on him. As a result, he concluded that the instructor had been dismissed without cause.
[32] Arbour J. found that the arbitrator was wrong not to give full effect to the criminal conviction even though neither res judicata nor the rule against collateral attack strictly applied. Because the effect of the arbitrator’s decision was to relitigate the conviction for sexual assault, the proceeding amounted to a “blatant abuse of process” (para. 56).
[33] Even where res judicata is not strictly available, Arbour J. concluded, the doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as “judicial economy, consistency, finality and the integrity of the administration of justice” (para. 37). She stressed the goals of avoiding inconsistency and wasting judicial and private resource
[Even] if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [para. 51]
(See also R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 106, per Charron J.)
[34] At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:
• It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).
• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).
• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72).
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).
[37] Simply put, the three doctrines apply to this case. The same issues were before the Board. The decision was final. The parties are the same in both proceedings. There was an appeal and judicial review process available. Relitigating in a different forum is not appropriate for the same reasons as set out in para. 34 of Figliola.
(iv) Discretion
[38] As the aforementioned doctrines are equitable in nature, the court retains the discretion to decline to apply them in the interests of justice. See: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at paras. 62-80.
[39] The factors identified by Binnie J. in Danyluk do not apply in this case. Ms. Hanley participated in the proceeding at the Landlord and Tenant Board. There was procedural fairness. The Board had the jurisdiction to grant the order. The Board Member heard similar evidence. There was a right of appeal. Ms. Hanley exercised that right but chose not to pursue her appeal. That was a risk she chose.
[40] In result, I decline to exercise discretion in favour of Ms. Hanley.
(v) Summary on Motion re Family Law Claims
[41] For the above reasons, summary judgment is granted dismissing Ms. Hanley’s family law claims.
(vi) Certificate of Pending Litigation and Civil Proceeding
[42] Counsel are in agreement that if summary judgment is granted dismissing Ms. Hanley’s family law claims that an order be granted discharging the certificate of pending litigation and permitting Ms. Furlong-Jewer to proceed with her civil application. I concur. An order is granted on those terms.
Summary
[43] A final order is granted on the terms stated herein. If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days.
[44] This decision does not address ownership of the trailer as such is not dependant on family law principles but may well be civil in nature. Further, I have not been asked, nor do I express any comment, as to whether a tenant may pursue a remedy on the basis of constructive trust or unjust enrichment of other equitable principles.
D.J. Gordon J.
Released: February 10, 2016
CITATION: Hanley v. Furlong-Jewer, 2016 ONSC 1038
COURT FILE NO.: FS-326-15
DATE: 2016-02-10
BETWEEN:
Christine Carol Hanley
Applicant
– and –
Enita Furlong-Jewer
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: February 10, 2016
lr