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June 13, 2016

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May speed processes in lower courts Divisional Court decision blow to vexatious litigants BY ALEX ROBINSON Law Times A Divisional Court decision has opened up a way to weed out vexatious litigants in the statutory courts and tribunals, but lawyers say a lot more needs to be done. In Monga v. Chowbay and Tulshi, 2016, Justice Julie Thorburn dis- missed a tenant, appealing a tribunal decision, as a vexatious litigant. "I find that the appeal is manifestly devoid of merit and should therefore be quashed," she wrote in her decision. "The tenants are vexatious litigants who must obtain leave of this court before filing additional materials regarding this matter," she added. The Landlord and Tenant Board tribunal, where the original decision was made, and statutory courts, such as the Small Claims Court, do not have the power to make such determinations. Jordan Donich, a Toronto lawyer who works on landlord and tenant issues, says one of the big causes of vexatious litigants in the Tenant and Landlord Board are the low- cost consequences tenants face. Vexatious landlords can easily be deterred by rent abatement tenants can be granted. "There is not the same financial deterrent for a tenant acting in bad faith, however," Donich says. The cap of how much tribunals can give to a tenant in fines is set at just $700. "This creates a situation where the tenant really has nothing to lose and everything to gain by unnecessarily prolonging litigation," he says. "The longer things continue, the more free rent they may enjoy, which far outweighs any potential cost consequences at the tribunal. If the costs consequences were raised, a vexatious tenant may think twice before acting." In Monga, two tenants had stopped paying rent for more than a year before the landlord asked them to vacate his property in May 2015, according to Thorburn's deci- sion. They were then able to avoid eviction by manipulating the appeals process. Thorburn's ruling may be a good first step in ridding the lower courts of vexatious litigants, but more needs to be done to fix the legislation that allows for abuses to con- tinue in the Landlord and Tenant Board, legal professionals say. Nicole Godfrey, a lawyer with Forbes Chochla LLP who represented the landlord on Trinity Western battle likely to head to SCC BY ALEX ROBINSON Law Times L awyers say a fight over ac- crediting an evangelical Christian law school will likely end up before the Supreme Court of Canada after Ontario's Court of Appeal recently heard the case. In 2014, Law Society of Upper Canada benchers voted against granting accreditation to Trin- ity Western University's law school because of a provision in its cov- enant that bans students from "sexual intimacy that violates the sacredness of marriage between a man and a woman." Since then, TWU's challenge to the LSUC's decision has made its way through the Divisional Court, as well as the Court of Appeal, and looks like it will likely be headed to the Supreme Court, says Douglas Elliott, a partner in Cambridge LLP. "If Trinity Western loses, they've got too much at stake to leave this one alone. They'll want to try and take it to the Supreme Court of Canada," says Elliott, who has worked on landmark constitution- al cases such as same-sex marriage. "And I have no doubt that if by some miracle Trinity Western wins in this case, I think there is very strong support for the posi- tion the law society is taking in this case and there will be an appeal." In their factum, lawyers repre- senting TWU said the school's ap- peal "is about protecting members of a minority religion in our plu- ralistic society." They argued that by denying the proposed school accreditation the LSUC "infringed not only the appellants' freedom of religion but also the other rights and freedoms that protect its manifestation: the freedom of expression, the free- dom of association and the right to equality." Albertos Polizogopoulos, a law- yer representing the Evangelical Fellowship of Canada, was one of a number of interveners support- ive of TWU's appeal that spoke to a packed courtroom during the POT RULING Man prosecuted for $10 worth of marijuana P3 CHARTING FORWARD Lawyers discuss future of profession P4 FOCUS ON International/cross-border law P8 See Case, page 2 See Tenants, page 2 PM #40762529 $5.00 • Vol. 27, No.20 June 13, 2016 L AW TIMES & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Jordan Donich says vexatious landlords can easily be deterred by rent abatement tenants can be granted. Photo: Robin Kuniski TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM When you're working, we're working. End-To-End Legal Marketing Solutions. Visit Findlaw_LT_June13_16.indd 1 2016-06-09 12:05 PM The Law Society voted against accrediting an evangelical Christian law school, and lawyers say the battle will likely end up before the Supreme Court of Canada.

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