Law Times

June 13, 2016

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Page 2 June 13, 2016 • Law Times this case, said the decision is im- portant, but its impact can only go so far because of legislative barriers. "While we are creating posi- tive precedents for other cases go- ing forward, changes need to be made to the legislation in order to further reduce the undue delays caused by tenants who are work- ing the system without legitimate grounds," she said, in an e-mail. "As it stands, landlords are required to overcome significant hurdles to obtain resolutions when unmeritorious appeals have been launched." This can be particularly cost- ly for landlords because of legal fees in addition to any unpaid rent that they are owed, she said. Tenants looking to avoid eviction have found ways to ma- nipulate the appeals process in the Landlord and Tenant Board through a loophole in the Resi- dential Tenancies Act, paralegal Fredrick Goodman says. "People continue to play the card and it really results in ter- rible abuses — so much so that tenants can live rent-free for extended periods of time by fil- ing meritless, frivolous appeals," Goodman says, who did not act in the case. When the tenants in Monga refused to move out, the land- lord applied to have them evict- ed in September of that year. The tenants filed a request to extend the deadline and then filed multiple appeals to get the eviction stayed. "Unfortunately, they spent too much time living rent-free and the fact is there is only so much time that you can run with the rope before you end up hanging yourself with it and it looks like eventually they did do that," says paralegal James Bush, who did not act in the case. "Unfortunately, it has to take people taking things to higher courts to get these remedies, but it doesn't happen easy and it doesn't happen cheap." In a similar Divisional Court case, D'Amico v. Hitti, 2012, Justice Ted Matlow complained about the growing number of tenants trying to abuse the ap- peals system so that they could stay in their residences rent-free. "My recent experience sitting as a single judge of this court to hear motions has convinced me that there is a growing practice by unscrupulous residential ten- ants to manipulate the law im- properly, and often dishonestly, to enable them to remain in their rented premises for long periods of time without having to pay rent to their landlords," he said in his decision. "It is practice that imposes an unfair hardship on landlords and ref lects badly on the civil justice system in Ontario." Matlow called on the govern- ment, the Landlord and Tenant Board, and the courts to respond to this. "The Divisional Court has been responding to these situa- tions in a positive manner; how- ever, more steps need to be taken to improve the legislation," God- frey said. Godfrey added that the Thor- burn decision shows landlords they have legal options beyond dealing with the myriad of frivo- lous appeals they can face in the Landlord and Tenant Board tri- bunal process. A change to Rule 2.1 of the Superior Court Rules of Civil Procedure in 2014 made it easier for frivolous law suits to be dis- missed as vexatious in the higher courts, which in turn has led to a steady f low of vexatious liti- gants filing many motions in the statutory courts once they have been booted out of the Superior Court, says Goodman. While Thorburn's decision concerns a Landlord and Ten- ant Board tribunal decision, Goodman says it could also be precedent-setting for the Small Claims Court as well. "We're at a beginning of a new era in the higher courts," he says. "And it's reaching its way down to or inf luencing statutory courts and tribunals." LT Court of Appeal proceedings in early June. Polizogopoulos argued the school's right to religion had been violated, saying it doesn't give up its rights by entering the "public sphere." "You don't give up your char- ter rights by simply stepping into this courtroom," he said. Lawyers representing the LSUC said the bencher's decision not to accredit the school does not infringe upon the religious rights of TWU and its prospec- tive students. "In contrast, the terms and requirements of the community covenant, which TWU students are compelled to sign as a condi- tion of attendance, are discrimi- natory," they said in their factum. Tim Dickson, a lawyer rep- resenting the Canadian Secu- lar Alliance, which was one of a number of interveners support- ive of the LSUC, said there is no legal protection for imposing re- ligious views on others. "That is no longer a religious position. That is a political posi- tion," he said. Some of TWU's argument hinges on a 2001 Supreme Court decision, Trinity Western Uni- versity v. British Columbia College of Teachers, which pit- ted the university against the British Columbia College of Teachers, which refused to ac- credit the school because of its covenant. The Supreme Court ruled in favour of TWU, saying the college of teachers could not refuse accreditation to TWU on the basis of discrimination. Citing this decision, TWU lawyers said in the factum that the LSUC benchers who voted against accreditation "did not properly delineate rights and values at issue and failed to consider the impact of their decision on the appellants' constitutional freedoms." Dwight Newman, a law pro- fessor with the University of Sas- katchewan, says the 2001 decision "implicitly recognizes the richness of faith-based education in its en- counter with the world. "And, at a simple level of prec- edent, it concerned a very similar professional program from not only a similar institution but the very same institution." He adds that the case set a precedent "on reconciliation of religious freedom and equality rights that recognized that faith- based education needs to be able to operate alongside later regula- tion within different professions to respect all Charter rights, in- cluding equality rights." Elliott, who worked on the 2001 case, says jurisprudence has, however, since evolved to a point where that decision will not be applicable to TWU's appeal. "This is an entirely different situation and the case law has evolved in a way since the Trinity Western case that is not helpful to Trinity Western," Elliott says of the 2001 decision. "I can't remember the last time the Supreme Court of Can- ada upheld the rights of freedom of religion against the rights of collectivity." Ivan Steele, a Toronto lawyer who works on LGBTQ issues, says recent court decisions have been "at stark odds" with the 2001 decision. "In the meantime, we've had same-sex marriage become legal in the country, which was a huge development not in place when the previous case was heard and decided," he says. Steele says he believes the only way for this particular matter to be solved conclusively is for it to go to the Supreme Court, which could provide some clarity on how and whether the 2001 deci- sion applies. "Because of the 2001 prec- edent, it definitely begs for some clarity in this case," he says. "It is a matter of national in- terest and legal ambiguity to some extent," he adds. Trinity Western University has also taken law societies to court in Nova Scotia and Brit- ish Columbia over their refusal to accredit the school. The case in British Columbia was heard at the beginning of June. Amy Robertson, TWU spokeswoman, said in a state- ment on the school's web site ear- lier this month that "this is about far more than the right to open a law school." "The Ontario Court of Appeal justices will be deciding on an issue that will affect freedom for everyone — not just faith com- munities. At TWU we believe in upholding the freedom of all Ca- nadians to believe as they choose and practice accordingly." LT NEWS Continued from page 1 Tenants can manipulate appeals through loophole Continued from page 1 Case law 'not helpful' to TWU AVAILABLE RISK-FREE FOR 30 DAYS Order online at Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 New Edition Brand Management in Canadian Law, 4th Edition John S. McKeown Brand Management in Canadian Law, 4th Edition is the only publication in Canada that brings together the legal and business issues you need to understand when helping clients reach their business objectives through branding. Now in its fourth edition, Brand Management in Canadian Law is written in easy-to- understand language by a specialist in intellectual property and marketing matters. 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