The motion judge dismissed the tenant plaintiff's action against the landlord and several others regarding an eviction on the grounds that the action was frivolous, vexatious or an abuse of process and the Ontario Court of Appeal upheld this decision.

Obermuller v. Kenfinch Co-Operative Housing Inc.

(2016), 2016 CarswellOnt 6797, 2016 ONCA 330, Alexandra Hoy A.C.J.O., L.B. Roberts J.A., R.A. Blair J.A. (Ont. C.A.) [Ontario]

Ontario Court of Appeal

Parties -- Vexatious proceedings / Abuse of process

Plaintiff brought action against landlord and various personal defendants, with respect to eviction from her co-operative housing unit for persistent and substantial rent arrears -- On motion judge's direction, notice was sent to plaintiff that action might be dismissed for being frivolous, vexatious or abuse of process -- Plaintiff did not deliver any submissions -- Motion judge dismissed action -- Plaintiff appealed -- Appeal dismissed -- Appropriate notice was sent to all parties as required under Rule 2.1.01 of Rules of Civil Procedure, and plaintiff did not provide any evidence that she did not receive such notice -- Even if plaintiff had not received notice, no prejudice or injustice would arise because her submissions would not have affected outcome of motion -- It was apparent on face of statement of claim that action was clearly abuse of process, frivolous and vexation -- Action was attempt to re-litigate outcome of proceedings before Landlord and Tenant Board where she was unsuccessful and which were finally determined against her -- Claim for damages arising from same complaints did not change fact that same issues were already or could have been determined in prior proceedings and could not be re-litigated -- Plaintiff could have no reasonable cause of action against B for providing affidavit of service, or against landlord's lawyers who owed no duty of care to her -- Plaintiff's claims against court employee and Board member were bound to fail because they had statutory immunity from any lawsuit related to performance of their duties -- This was clear case where dismissal of action was warranted under R. 2.1.01 of Rules.