Today, all SOLO landlords were delivered a legal blow. The proposed class-action lawsuit with Elsie Kalu as plaintiff has been struck down, effectively ending this process before it started. This potential class-action suit was meant to hold the Ontario Government and the Ontario Landlord and Tenant Board accountable for the delays caused by the LTB.
The first court session in Cayuga had lawyers from the Attorney General of Ontario (the “Crown”) request judge M.J. Valente strike down the statement of claim because it could not win on its merits. The judge sided with the Crown and felt Elsie’s claim had “no reasonable prospect of success.”
A core tenant of this decision related to the extreme delays at the LTB and how those could deny small landlords access to their properties. Judge was not moved by this idea:
“Notwithstanding these allegations, the LTB Order, incorporated by reference into the pleading, confirms that the plaintiff’s application was heard on February 1, 2023 and that the plaintiff was given access to her property on or before July 31, 2023. Accepting these facts as true, then albeit there may be delays in the process, LTB hearings are proceeding, and orders are being issued. Accordingly, in my opinion, the statement of claim fails to establish any factual basis for a ‘permanent or indefinite denial of access to property by the Crown.'”
Judge M.J. Valente, said plainly “based on the allegations as plead in the statement of claim, I find it is plain and obvious that this proposed class action cannot succeed.”
Speaking about delays and how they are said to remove all reasonable uses of property, Judge M.J. Valente disagreed with the Crown saying:
“The Crown submits that because the facts as plead stipulate that Class members may apply to the LTB for orders authorizing the uses they wish to make of their residential rental properties, they cannot be said to be deprived of the use of their property in any substantial way. I disagree.”
An additional challenge was the prospect of holding the Landlord and Tenant Board accountable for extreme delays. Judge M.J. Valente said this:
“Because, as this Court recently stated in Daly v. Ontario (Landlord Tenant Board), 2022 ONSC 2434 (‘Daly’), affirmed 2023 ONCA 152, the LTB is an independent, quasi-judicial tribunal, its members act independently of the Crown, and the Crown cannot be vicariously liable for anything done by the LTB, the statement of claim not only fails to plead the state action element of the cause of action but also, the claim has no likelihood of success against the Crown.”
The judge struck down the case and has awarded the Crown compensation.
Read the full decision.
