COURT FILE NO.: CV-18-00599366
DATE: 20191216
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Silvy Joyce D’Souza, Plaintiff
AND: Landlord and Tenant Board, Defendant
BEFORE: Justice Matheson
HEARD: In writing
ENDORSEMENT
[1] This matter was referred to me by the Registrar’s office pursuant to Rule 2.1.01(7) of the Rules of Civil Procedure, following receipt of a written request from counsel to the Social Justice Tribunals Ontario, representing the Landlord Tenant Board (“LTB”). The LTB requested an order dismissing this action under Rule 2.1.01(1).
[2] By notice dated September 16, 2019, the plaintiff was given notice that the Court was considering making an order under Rule 2.1.01(1). Rule 2.1.01(3)2 provides that a plaintiff’s submissions be provided within 15 days of receiving notice under the Rule. Accordingly, the plaintiff was given 15 days to make written submissions.
[3] An affidavit of the plaintiff was filed on October 8, 2019, containing both statements about whether the claim should be dismissed under Rule 2.1.01 and a request for an adjournment. The plaintiff indicated that she wanted an adjournment so that she could retain a lawyer to respond to the request for written submissions. The plaintiff was given additional time to provide the written submissions referred to in the September 16, 2019 notice.
[4] Another affidavit of the plaintiff was filed, dated November 14, 2019. That affidavit also contained both statements about the potential use of Rule 2.1.01 and a request for an adjournment.
[5] In this case, the plaintiff has already given an additional period of time to respond. Her second affidavit was filed almost 60 days after the date of the original notice. Having considered the statements made in both of the plaintiff’s affidavits and the allegations made by the plaintiff in the amended statement of claim, a second adjournment is denied.
[6] Evidence is not admissible under Rule 2.1.01. I have therefore considered the two affidavits filed by the plaintiff as her submissions in response to the notice under rule 2.1.01, rather than as evidence.
Amended statement of claim
[7] The allegations in the amended statement of claim focus mainly on the course of a proceeding before the LTB arising from an application brought by the plaintiff’s landlords against her. The landlords sought an order from the LTB evicting the plaintiff for non-payment of rent.
[8] The sole defendant is the LTB, which is an adjudicative body that made the order evicting the plaintiff, as briefly described below.
[9] The plaintiff claims damages in the amount of $10 million and punitive damages of $20 million, among other relief.
[10] The section entitled “Causes of Action” in the amended statement of claim alleges that the plaintiff’s landlords received preferential treatment from the LTB, that the plaintiff was denied her right to a fair hearing, that there was obstruction of justice, discrimination, a conspiracy, an attempt to destroy evidence, a miscarriage of justice, contempt of court, extortion and fraud.
[11] The amended statement of claim is lengthy. It contains detailed allegations against members of the LTB who presided at various stages in the LTB proceedings and about the various steps in those proceedings and her subsequent, unsuccessful, appeal to the Divisional Court.
[12] The plaintiff alleges that the proceedings before the LTB resulted in an invalid and false order due to alleged instances of misconduct such as bias and different forms of procedural unfairness. The plaintiff alleges failures to properly consider the evidence and refusals to accept certain evidence. The plaintiff alleges that she did not get a fair and impartial hearing before the LTB. The amended statement of claim also makes numerous allegations that relate to the substance of the issues before the LTB, including detailed allegations regarding certain cheques and rent receipts in relation to alleged non-payment of rent and other problems such as the plaintiff not being able to access the internet at her apartment, her phone being cut off, and problems with the heat, among other things.
[13] The plaintiff challenges the eviction order made by the LTB, Order TSL-073114-16, calling it a false order, and the later order of the LTB denying her request to review that order, Order TSL-073114-16-RV.
Rule 2.1.01
[14] 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. The court does not consider evidence under Rule 2.1, only the pleadings and potentially judicial decisions in other cases.
[15] The court has recognized that Rule 2.1 “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”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488, at paras. 7-9.
[16] However, Rule 2.1 should only be used for “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”: Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 8, citing Scaduto.
[17] The plaintiff has commenced at least two other actions that focus on these tenancy-related issues, although they do not name the LTB as a defendant. Both of these other actions have as their main focus the above landlord tenant issues and related LTB and court proceedings.
[18] There is another action before me, also brought by this plaintiff and also the subject of a request under Rule 2.1. That action is CV-19-00617232-0000. By decision also dated today, that action is being dismissed under Rule 2.1.01 against most but not all of the defendants (2019 ONSC 7249).
[19] The other action, specifically Court file No. CV-18-599357-0000, was dismissed under Rule 2.1.01 by decision of Favreau J. dated March 22, 2019 (2019 ONSC 1851).
Analysis
[20] In this action, the plaintiff is again attempting to relitigate issues already decided by the LTB and not overturned by the Divisional Court. She cannot do so. As stated by Favreau J. in the above decision, at para. 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.
[21] There are further serious barriers to this action, beginning with the inability to sue the LTB, but the above reason is more than sufficient to conclude that this action should be dismissed under Rule 2.1.01.
[22] This action is dismissed under Rule 2.1.01.
Justice W. Matheson
Date: December 16, 2019