Court File and Parties

Court File No.: CV-18-00599357-000 Date: 2019-03-22 Ontario Superior Court of Justice

Between: SILVY JOYCE D'SOUZA, Plaintiff – and – ZIJIN LU, JIANYUN DU, MARSHALL YARMUS, DAVID STRASHIN, PRADIP SHARMA, SHAREEN RAJ, Defendants

Heard: In writing

Favreau J.:

Introduction

[1] This action was originally referred to me by the Registrar's office pursuant to Rule 2.1.01(6) of the Rules of Civil Procedure, following a written request from counsel for the defendant David Strashin dated January 24, 2019. The defendants Zijun Lu and Jianyun Du made a similar request on February 26, 2019.

[2] In an endorsement dated February 6, 2019, I indicated that it appeared to me that that the action may be frivolous, vexatious and an abuse of process, and I directed that the action be stayed and that the plaintiff be given an opportunity to make written submissions.

[3] On February 8, 2019, the Registrar notified the plaintiff that the Court was considering making an order to stay or dismiss the action under Rule 2.1, and advised the plaintiff that she had 15 days to provide written submissions in response to the notice.

[4] On March 1, 2019, the plaintiff filed a response in the form of an affidavit.

[5] I have now had an opportunity to consider the plaintiff's submissions.

The Amended Statement of Claim

[6] The plaintiff, Silvy Joyce D'Souza, commenced this action on June 6, 2018, with a statement of claim that was originally 113 pages in length.

[7] Ms. D'Souza amended her statement of claim on December 4, 2018. The amended claim is now 168 pages long, and contains 285 paragraphs.

[8] The claim appears to arise from a landlord and tenant dispute, which resulted in a decision by the Landlord and Tenant Board evicting Ms. D’Souza and requiring her to pay outstanding rent. Ms. D’Souza’s appeal from this decision to the Divisional Court was dismissed.

[9] Ms. D'Souza has named the following defendants in her action:

a. Zijin Lu and Jianyun Du: Ms. D'Souza's landlords; b. Marshall Yarmus: a paralegal who represented the landlords before the Landlord and Tenant Board; c. David Strashin: a lawyer who acted for the landlords in the enforcement of the Board's orders and also represented the landlords in proceedings before the Divisional Court; and d. Pradip Sharma and Shareen Raj: tenants in the same building where Ms. D'Souza resided in 2015 and 2016.

[10] The plaintiff seeks general damages in the amount of $9,000,000, punitive damages in the amount of $9,000,000 and unquantified special damages for “loss of time, and interruption in routine of life". The causes of action asserted include breach of a tenancy agreement, interference with enjoyment of the rental unit, false applications to the Landlord and Tenant Board, violation of right to a fair hearing, obstruction of justice, conspiracy, fraud, harassment, discrimination, defamation, perjury, attempted extortion, miscarriage of justice, trespass and contempt of court.

[11] The amended statement of claim sets out a detailed and lengthy history of dealings between the plaintiff, her landlords and the two other tenants going back to 2015.

[12] The crux of the plaintiff's claim is focused on events leading up to proceedings before the Landlord and Tenant Board and the hearing itself.

[13] The claim includes allegations that the landlords failed to provide services to which Ms. D'Souza was entitled, such as heat, telephone and internet, and that the landlords repeatedly refused to give her rent receipts when she requested them. The claim also makes reference to several disputes between Ms. D'Souza and the other tenants, and to calls made to the police.

[14] With respect to the proceedings before the Landlord and Tenant Board, Ms. D'Souza alleges that the landlords made an unfounded application to the Board to terminate the tenancy on the basis of unpaid rent. She claims that she made a payment by cheque for the March 2016 rent, but that the cheque was returned in error by her bank. She alleges that she confirmed this with her bank, and had consistently notified the landlords that they could still cash the cheque. She claims that the landlord confused matters by applying her payment for the April 2016 rent to March 2016, and then made an application to the Landlord and Tenant Board based on unfounded allegations that she had not paid her April 2016 rent. She maintains that she paid rent in March 2016 and April 2016, but that her landlords refused to deposit the March 2016 cheque after she advised them that her bank would honour the returned cheque.

[15] With respect to the hearing before the Board, the plaintiff alleges that she did not get a fair hearing, and that the member who conducted the hearing improperly preferred the landlords' evidence over her evidence. She also complains that the other tenants named in the claim signed false statements against her in support of the landlords’ application to the Board. Ms. D'Souza claims that she requested a reconsideration from the Landlord and Tenant Board based on her rent receipts, but that the Board conspired to evict the plaintiff by failing to consider this evidence and grant the request for a reconsideration.

[16] Ms. D'Souza also claims that, following the hearing, the landlords and Mr. Strashin harassed her for payment of the outstanding rent ordered by the Board. She asserts that she did not pay the amount ordered because this would have amounted to paying her rent twice.

[17] The plaintiff appealed the Landlord and Tenant Board's decision to the Divisional Court. A portion of the claim is taken up with complaints about how the landlords and their lawyer responded to the appeal. For example, the plaintiff alleges that the landlord made it difficult for her to serve her appeal materials, that there are false statements in the factum filed by Mr. Strashin on behalf of the landlords and that one of the landlords made false statements in an affidavit filed with the Court.

[18] The plaintiff also makes reference to appearances in the Divisional Court, resulting in the dismissal of her appeal. She alleges that two judges of the Divisional Court conspired with Mr. Strashin and the landlords to evict and defraud her.

[19] Ms. D'Souza also takes issue with a Notice of Garnishment filed by the landlords with the Small Claims Court. She claims that her bank improperly paid the amounts owing under the Notice of Garnishment.

[20] The amended claim also includes a point by point response to a notice issued by the landlords in the context of the Landlord and Tenant Board proceedings, and to the evidence of the two tenant defendants that was before the Board. Many of these points repeat matters already raised earlier in the claim.

[21] Ms. D'Souza's claim also includes a lengthy detailed section in which she identifies the errors she believes the Board made in its decisions. She includes portions of the transcripts from the hearing which she claims demonstrate the Board's errors.

Decisions of the Landlord and Tenant Board

[22] The decisions of the Landlord and Tenant Board are publicly available, and I was therefore able to locate and review them for the purpose of considering this matter.

[23] The landlords brought two applications to terminate the plaintiff's tenancy, which were considered together on June 7, 2016. The first application was based on unpaid rent from April 1, 2016 to June 30, 2016. The second application was based on allegations that Ms. D'Souza substantially interfered with the landlords' and other tenants' enjoyment of the property. The Board granted both applications in a decision dated June 27, 2016.

[24] In dealing with the first application, the Board considered and dismissed many of the issues raised by Ms. D'Souza in this action. These issues include allegations that the landlords illegally entered her apartment, harassed her by withholding internet access, made improper demands for additional funds and did not provide proper heating. Ultimately, the Board found that Ms. D'Souza was required to pay one month of rent, with some additional charges.

[25] With respect to the second application, after reviewing the evidence, the Board found that eviction was warranted because Ms. D'Souza exhibited "highly aggressive and disruptive conduct toward the landlords and other residents". The Board declined to grant relief from eviction, finding that Ms. D'Souza "would be highly unlikely to comply with an order to refrain from this conduct for any period of time".

[26] On July 5, 2016, the Board denied the plaintiff's request for reconsideration of the June 27, 2016 decision. In its reconsideration decision, the Board dismissed the plaintiff’s argument that the landlords should have taken steps to collect the outstanding rent from the bank, finding that "[i]t is the Tenant's responsibility to ensure that her bank honours her cheques". The Board also rejected all other grounds of review raised by Ms. D’Souza which echo some of the allegations in her claim about the deficiencies in the Board’s procedure and decision.

[27] As mentioned above, the plaintiff states that she appealed the Board's decisions to the Divisional Court. While the Divisional Court decisions do not appear to be publicly available, it is evident from the plaintiff's claim and submissions that the Court dismissed her appeal.

Ms. D'Souza's position

[28] As indicated above, in response to the Registrar's direction, Ms. D'Souza provided an affidavit in which she generally restates the basis for her claim. She again alleges that the landlords' application to the Landlord and Tenant Board was unfounded, and that the Board's procedure and decision were unfair and that the Divisional Court improperly dismissed her appeal.

[29] She also argues that her claim is not an abuse of process, but rather that it was the defendants and the Landlord and Tenant Board who abused the process. She further claims that the Landlord and Tenant Board and the Divisional Court have violated her Charter rights, although this is not a claim asserted in the amended statement of claim.

[30] In respect of her position that the Court has authority to deal with this case, she asserts that she contacted the mayor, the police and the Ministry of the Attorney General, and that they each advised her that these are issues to be raised with the courts.

[31] Finally, she argues that the Superior Court has jurisdiction over her claim because she is seeking damages, and the damages exceed the monetary jurisdiction of the Small Claims Court.

Rule 2.1.01

[32] Rule 2.1.01(1) authorizes the court to 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.

[33] The Court's role under Rule 2.1.01 is limited to reviewing the statement of claim to assess whether on its face the claim is frivolous, vexatious or an abuse of the process of the court.

[34] While the court is not to consider evidence in a proceeding under Rule 2.1.01, the court may consider the pleadings and judicial decisions in other court cases.

[35] In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 the Ontario Court of Appeal stated, at para. 8:

[T]he court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.

Analysis

[36] Based on the allegations set out in the statement of claim and my review of the decisions of the Landlord and Tenant Board, it is evident that the plaintiff seeks to relitigate issues already decided against her before the Landlord and Tenant Board. She also seeks to attack the outcome and fairness of the proceeding before the Board, which are issues she has already raised unsuccessfully on her appeal to the Divisional Court.

[37] Ms. D'Souza's claim that she was wrongfully evicted from her apartment has been finally decided. She has exhausted all available remedies. She cannot now seek to re-litigate this issue through this action. The principles of issue estoppel and res judicata apply. This application is nothing more than a collateral attack on the decisions of the Board and the Divisional Court.

[38] In addition, Ms. D'Souza's claim has the markers of a frivolous and vexatious claim. She lists several non-existent causes of action, such as obstruction of justice, perjury, contempt and harassment. She also makes several unparticularized allegations of conspiracy against Mr. Strashin, members of the Landlord and Tenant Board and two Divisional Court judges.

[39] In my view, there is no doubt that the plaintiff's claim is frivolous, vexatious and an abuse of the court's process.

Conclusion

[40] The plaintiff's action is therefore dismissed in accordance with Rule 2.1.01.

Favreau J. Released: March 22, 2019