



COURT OF APPEAL FOR ONTARIO

CITATION: Obermuller v. Kenfinch Co-Operative Housing Inc.,
    2016 ONCA 330

DATE: 20160503

DOCKET: C61423

Hoy A.C.J.O., Blair and Roberts JJ.A.

BETWEEN

Cheryl Obermuller

Plaintiff (Appellant)

and

Kenfinch Co-Operative Housing Inc., Josephina
    Boto, Iler Campbell, Celia Chandler, Joseph Van Tassel, and Sylvia Watson

Defendants (Respondents)

Cheryl Obermuller, in person

Adam Pantel, for the respondents, Iler Campbell and
    Celia Chandler

Farzin Yousefian, for the respondent, Joseph Van Tassel

Luke Saites, for the respondents, Kenfinch Co-operative
    Housing Inc. and Josephina Boto

Margaret Leighton, for the respondent, Sylvia Watson

Heard and released orally: April 21, 2016

On appeal from the judgment of Justice F.L. Myers of the Superior
    Court of Justice, dated November 3, 2015.

ENDORSEMENT

[1]

The appellant appeals from the dismissal of her action against the
    respondents. In her action, the appellant claimed damages related to her
    eviction from her co-operative housing unit at the Kenfinch Co-Operative, based
    on her persistent and substantial rent arrears, and Kenfinchs refusal to grant
    her subsidized rent request. The appellants action was commenced following
    numerous proceedings, starting with the Landlord and Tenant Boards October 22,
    2014 eviction order, in which she was unsuccessful.

[2]

In response to requisitions received from some of the respondents, on
    September 30, 2015, the motion judge directed the registrar to send a notice to
    the appellant that the court was considering dismissing her action under r. 2.1.01
    of the
Rules of Civil Procedure
, for being frivolous, vexatious, or an
    abuse of process. The registrar sent a notice to the appellant in Form 2.1A.
    The appellant did not provide submissions. On November 3, 2015, the motion
    judge dismissed the appellants action under r. 2.1.01.

[3]

The appellant argues on appeal that the motion judge erred in dismissing
    her action when there was no motion for summary judgement before him and when
    no hearing was held. Further, she submits that the trial judge erred in
    dismissing the action against all respondents because no requisitions were
    filed by Kenfinch and Josephina Boto. She also argues that she did not receive
    the required notice under r. 2.1.01 and therefore was deprived of the
    opportunity to make submissions. Finally, she submits that her statement of
    claim sets out claims for damages that were not the subject of the eviction or
    her subsidized rent proceedings.

[4]

We do not accept the appellants submissions.

[5]

Rule 2.1.01 permits the summary disposition of an action without a
    public hearing, on the courts own initiative and without requisitions being
    submitted by the parties, although the plaintiff must be given the opportunity
    to provide written submissions, as was done in the present case.

[6]

The record establishes that the appropriate notice to the appellant
    under r. 2.1.01 was sent to all parties by mail as required under r. 2.1.01(4).
    The respondents acknowledge receipt of the notice. It was sent to the appellant
    at the address set out by the appellant on her statement of claim. The
    appellant has not provided any evidence that she did not receive it. The
    appellant failed to deliver submissions within the time provided by r. 2.1.01
    and did not seek an extension of time to provide submissions or offer evidence
    of any reasonable excuse as to why she should be relieved of compliance with
    the fifteen-day deadline under that rule.

[7]

Even if we were to accept that the appellant did not receive notice
    under r. 2.1.01 to make submissions, no prejudice or injustice would arise
    because it would not have affected the outcome of the motion given the nature
    of and bases pleaded for the appellants claims.

[8]

We agree with the motion judges conclusion that it is apparent on the
    face of the statement of claim that the appellants action is clearly an abuse
    of process, frivolous and vexatious, because it is an attempt by the appellant
    to re-litigate the outcome of the other proceedings related to the eviction and
    rent subsidy proceedings in which she was unsuccessful and which were finally
    determined against her. All of the issues that are raised in the appellants
    statement of claim were or could have been raised in the previous proceedings.
    The appellants claim for damages for the same complaints that were or could
    have been raised in previous proceedings does not change the fact that the same
    issues were already or could have been determined in those proceedings and
    cannot be re-litigated in her action.

[9]

Moreover, the appellant can have no reasonable cause of action against Josephina
    Boto for providing an affidavit of service, or against Celia Chandler and Iler
    Campbell, Kenfinchs lawyers, who owed no duty of care to the appellant in the circumstances
    of this case.

[10]

The appellant argues that Joseph Van Tassel and Sylvia Watson should not
    be above the law or that a different law should apply to them. However, the
    legislature has created a statutory immunity for them. As a result, the
    appellants claims against Joseph Van Tassel, an employee of the Superior Court
    of Justice, and Sylvia Watson, the Landlord and Tenant Board member who signed
    the eviction order, are also bound to fail because of those respondents
    statutory immunity from any lawsuit related to the performance of their duties.

[11]

We see no error in the motion judges decision. This was a clear case where
    a dismissal of the appellants action under r. 2.1.01 was warranted. There is
    no basis for us to interfere.

[12]

As a result, the appeal is dismissed.

[13]

The respondent law firm is entitled to costs in the all-inclusive amount
    of $1,000.00. Mr. Van Tassel is entitled to all-inclusive costs in the amount
    of $500.00.  Kenfinch and Ms. Botto are entitled to costs in the amount of
    $500. Those costs are payable forthwith.

[14]

In the circumstances, we dispense with the necessity of the respondent
    seeking approval from the appellant of the form of this order.

Alexandra Hoy A.C.J.O.

R.A. Blair J.A.

L.B. Roberts J.A.


