Court File and Parties

COURT FILE NO.: CV-15-237-SR DATE: 2018 07 05 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tom Taglienti, Plaintiff -and- Pushpinder Liddar and Rajinder Liddar, Defendants

BEFORE: Bloom, J.

COUNSEL: Caitlin Turner and Rachel Pano, for the Moving Parties, the Defendants Yianniko Kozoronis, for the Responding Party, the Plaintiff

HEARD: July 4, 2018

Endorsement

I. Introduction

[1] The Moving Parties seek to strike out the Plaintiff’s claim as disclosing no reasonable cause of action under Rule 21.01(1)(b) of the Rules of Civil Procedure, and alternatively for summary judgment dismissing the claim under Rule 20.04(2)(a) and Rule 20.04(4).

[2] Since Rule 21.01(2)(b) precludes the admissibility of evidence on a motion under Rule 21.01(1)(b), and the argument of the Moving Parties depends on evidence they have adduced, only the summary judgment motion need be addressed.

II. Facts

[3] The Plaintiff was a residential tenant of the Defendants. He alleges that he slipped and fell on the night of September 27-28, 2013 while ascending the stairs, because the Defendants failed to have a hand railing at the stairwell.

[4] He brought an application under 29(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 for an order under s. 29 (1) 1. determining that the landlord, the Defendant, Pushpinder Liddar, had breached the obligation under s. 20 (1) to keep the premises in a good state of repair.

[5] His application sought a rent abatement of $ 17,000.00. In support of that remedy he alleged inter alia that he had broken his leg falling downstairs because there was no railing. He explained also that he sought compensation for time lost from work as a result of the injury.

[6] He also made other allegations of fact not material to the motion before me.

[7] The hearing before Landlord and Tenant Board member Jeanie Theoharis took place on December 17, 2013.

[8] On December 23, 2013 Ms. Theoharis ordered that the landlord pay the Plaintiff a rent abatement of $250.00 due to the lack of maintenance, including not having a hand railing for the stairs.

[9] In her reasons Ms. Theoharis made the determination that the Plaintiff had failed to prove on a balance of probabilities that he was injured as a result of the landlord not having a hand railing on the staircase.

[10] On January 20, 2015 the Plaintiff issued his Statement of Claim claiming general and special damages in the amount of $100,000.00 for negligence related to the fall based on the absence of the railing. The Plaintiff also pleaded and relied upon the Occupiers’ Liability Act, R.S.O. 1990, c.O.2, s.3.

III. Governing Principles

[11] The Moving Parties invoke the principles of issue estoppel, abuse of process, and collateral attack to support their motion for summary judgment.

[12] In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3d ed (Toronto, Ontario: LexisNexis Canada Inc., 2017) at paras. 2.224 to 2.230 the learned authors discuss issue estoppel. They state that the doctrine contains an element of discretion; a court must determine whether, as a matter of discretion, issue estoppel ought to be applied. They state:

The court should stand back and, taking into account the entirety of the circumstances, consider whether the application of issue estoppel in the particular case would work an injustice….In the context of administrative decisions…the court [must] take into account the range and diversity of structures, mandates, and procedures of administrative decision makers without, in effect, sanctioning collateral attacks or undermining the integrity of the administrative scheme; the objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.

[13] As to abuse of process at para, 2.244 of their text, the authors state that the doctrine is a flexible one “ whose aim is to protect litigants from abusive, vexatious or frivolous proceedings or otherwise prevent a miscarriage of justice, and its application will depend on the circumstances, facts, and context of a given case.”

[14] Finally, at para. 2.250 the authors discuss the collateral attack principle, including the decision in R. v. Wilson, [1983] S.C.J. No. 88. They explain that the principle holds that an order of a court or tribunal having jurisdiction stands unless it is set aside on appeal or lawfully quashed. It cannot be attacked in proceedings other than those whose specific purpose is reversal, nullification, or variation of the order.

IV. Analysis

[15] The Moving Parties argue that all three doctrines apply; that, therefore, the determination of Ms. Theoharis stands that the cause of the fall was not proven to be a default of the landlord regarding the railing; and that, consequently, there is no genuine issue requiring a trial with respect to the Plaintiff’s claim.

[16] The Responding Party argues inter alia that it would be unjust to apply issue estoppel or abuse of process, given the circumstances; and that the action is not a collateral attack on the order of Ms. Theoharis.

[17] I shall address issue estoppel and abuse of process together in applying the principles I have set out above.

[18] In my view, it would be unjust to apply either doctrine to the circumstances before me. The evidence called before Ms. Theoharis was scant as it related to the question of the causation of the injury to the Plaintiff; and the parties were not represented by lawyers before her. Moreover, she provided no reasoning on the causation issue other than the conclusory statement that the tenant had not proven on a balance of probabilities that he was injured as a result of the absence of the railing. Lastly, there is some doubt about the jurisdiction of the Board to apply the Occupiers’ Liability Act (see Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442 at para. 12) which is pleaded in the Statement of Claim; that matter should be resolved on a full evidentiary record at a trial, not on this summary judgment motion.

[19] As to the application of the doctrine of collateral attack, I am not satisfied that the order of Ms. Theoharis is under attack in the action. The application of the Occupiers’ Liability Act is squarely in issue in the action; that matter was not before her.

[20] Moreover, the Moving Parties have not established that she would have had jurisdiction to consider that question, jurisdiction to make an order being a necessary element of the application of the doctrine of collateral attack. As I have noted, that issue of jurisdiction is not appropriately resolved on the record before me.

[21] I, therefore, dismiss the motion for summary judgment.

V. Costs

[22] I will receive written submission as to costs, limited to 3 pages excluding a bill of costs. The Responding Party is to serve and file his submissions within 14 days of the release of this endorsement. The Moving Parties are to serve and file their submissions within 14 days from service of the submissions of the Responding Party. There shall be no reply.

Bloom, J. DATE: July 5, 2018