Stefanizzi v. Landlord and Tenant Board (Ontario), 2016 ONSC 6932
CITATION: Stefanizzi v. Landlord and Tenant Board (Ontario), 2016 ONSC 6932
COURT FILE NO.: 1035-16
DATE: 2016-11-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Stefanizzi, Plaintiff (Appellant)
AND:
Ontario Landlord and Tenant Board, Defendant (Respondent)
BEFORE: The Honourable Madam Justice Louise L. Gauthier
COUNSEL: John Stefanizzi, Acting in Person
Brian A. Blumenthal, for the Defendant (Respondent)
HEARD: Written Submissions
ENDORSEMENT
[1] The Ontario Landlord and Tenant Board, which is a respondent in the within proceeding, has requested that the court exercise its discretion, pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and dismiss the proceeding as it appears on its face to be frivolous and an abuse of process.
[2] The summary procedure which this process engages is as follows:
Order to Stay, Dismiss Proceeding
2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
Summary Procedure
(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.
(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:
The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.
The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.
If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.
If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.
A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.
[3] I have written submissions from both parties.
The Proceeding
[4] The within proceeding purports to be an appeal of an interim review order of the Ontario Landlord and Tenant Board dated June 8, 2016, made at Sault Ste. Marie, Ontario.
Relevant Facts
[5] Tony Jameus (“Jameus”) and Brandie Casselman (“Casselman”), who did occupy or had occupied the property known as 766 Frontenac Street, Sault Ste. Marie, applied for an order under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, determining that John Stefanizzi and Lori Stefanizzi had failed to meet their obligations under the Residential Tenancies Act, 2006, or had failed to comply with health, safety, housing or maintenance standards.
[6] Jameus and Casselman further applied for an order that John Stefanizzi and Lori Stefanizzi had harassed, obstructed, coerced, threatened or interfered with them and had substantially interfered with the reasonable enjoyment of the rental unit or residential complex occupied by Jameus and Casselman.
[7] On January 15, 2015, John Stefanizzi and Lori Stefanizzi raised a preliminary issue of the jurisdiction of the Landlord and Tenant Board (the “Board”) to hear the applications.
[8] On January 27, 2015, the Board declared that it had jurisdiction over the occupancy agreement entered into between John Stefanizzi and Lori Stefanizzi, and Jameus and Casselman, by virtue of the Residential Tenancies Act, 2006.
[9] John Stefanizzi and Lori Stefanizzi requested a review of that decision. The reviewing board member denied the request for review without a hearing on February 9, 2015.
[10] The February 9, 2015 denial was appealed by John Stefanizzi and Lori Stefanizzi to the Divisional Court.
[11] On January 18, 2016, the Divisional Court allowed the appeal and directed the reviewing board member to reconsider John Stefanizzi and Lori Stefanizzi’s request for a review of the January 27, 2015 order.
[12] On March 17, 2016, the reviewing board member held a new hearing, in compliance with the directions of the Divisional Court, and on June 8, 2016, denied the request for review and confirmed the interim order of January 27, 2015.
[13] On June 27, 2016, a notice of appeal was issued in the within proceeding. Service was effected on the Board, and transcripts were ordered and paid for, according to the appellant’s material.
[14] On August 9, 2016, the Board made a request for dismissal pursuant to Rule 2.1.01.
[15] The appellant advises that his appeal is perfected and it is confirmed that the matter has been listed for hearing.
Position of the Parties
[16] The position of the parties is contained in the written submissions which form part of the record. I have considered them and I will not repeat them as part of this endorsement.
Analysis and Ruling
[17] In order for the court to grant the dismissal order requested by the Board, the abusive nature of the proceeding must be apparent on the face of the pleading, and there must be a basis in the pleading to support the resort to the process engaged by the Rule: see Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at paras. 8-9.
[18] The Scaduto case also instructs that Rule 2.1 is to be interpreted “robustly” to permit the judge to perform his/her gatekeeping task of weeding out cases that are “clearly frivolous, vexatious, or an abuse of process”: see para. 8.
[19] For the following reasons, I find that the within case is one that clearly falls within the ambit of Rule 2.1.
[20] First, the notice of appeal sets out that John Stefanizzi is the appellant and that the Ontario Landlord and Tenant Board is the respondent.
[21] In order to properly appeal the June 8, 2016 decision of the Board, it is Jameus and Casselman and not the Board who should be named as respondents. The Board cannot be a respondent in a proceeding purporting to be an appeal before the Divisional Court of an order made by the Board.
[22] The pleading in the within case, as all pleadings are supposed to do, frames the proceeding. The proceeding, as framed, is “on its face” frivolous and an abuse of process. The Board is incorrectly named as a respondent, and the persons who were responding in the proceeding from which the appellant seeks to appeal are not made parties. There is no framework within which to name the Board as a respondent in what purports to be an appeal of the Board’s order.
[23] Second, the notice of appeal alleges legal and jurisdictional errors as well as allegations of misconduct such as “acting for an improper purpose and in an unreasonable manner.” It alleges wrongdoing by the Board such as interference “with the Appellants [sic] right to seek a writ of possession and damages in Superior Court file Number 26173-13 for the property located at 766 Frontenac in Sault Ste. Marie, and Superior Court file Number 26172-13 for the property located at 455 Whitman Dam Road in Searchmont, Ontario” (which is not the subject of the within proceeding).
[24] The Divisional Court is not the proper forum for the adjudication of the dispute between the appellant and the Board.
[25] Any relief sought for misconduct or negligence against the Board would have to be framed within a claim against the Board under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27.
[26] The appellant advises that he did in fact issue a notice of claim pursuant to that Act, however he has taken the position that he will not be proceeding with that claim until the present Divisional Court proceedings are completed.
[27] Therefore, it appears that the appellant has commenced concurrent and duplicate proceedings in the form of a claim pursuant to the Act. That, and not the within alleged appeal, may be the proper forum for airing the appellant’s complaints against the Board.
[28] Third, the appellant is seeking relief that is unavailable in the purported appeal proceeding and the appellant seeks damages relating to a property which is not the subject matter of the within purported appeal.
[29] The relief sought in the notice of appeal includes the following:
a. Restitution from the Board “in the amount of $25,045 in damages plus legal costs assessed against the Appellant” for the Board’s negligence and failure to perform its due diligence, in what appears to be another matter involving the appellant and the Board regarding a property referred to as “(the Searchmont property)”;
b. Punitive damages in the amount of $25,000, “or the maximum allowed against the Respondents for negligence and its failure to use reasonable care resulting in considerable damage to the Appellant.”
[30] The power of the Divisional Court on an appeal of an order of the Board is contained in s. 210 of the Residential Tenancies Act, 2006.
- (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.
(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal.
(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.
(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.
(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.
[31] The relief sought is unavailable on appeal to the Divisional Court. This court has no jurisdiction to award damages, punitive or otherwise.
[32] For all of these reasons it is apparent, on the face of the pleading, that the within case is one which comes within the reach of Rule 2.1.
[33] Accordingly, the within proceeding is dismissed. It will be struck from the list and any date for hearing, which may have been assigned to it, vacated.
[34] Written submissions for costs, no longer than four pages double-spaced, may be filed with the Divisional Court office within 30 days of the date of this endorsement.
The Honourable Madam Justice Louise L. Gauthier
Date: November 9, 2016