Executive Summary: Key Legal and Evidentiary Issues

• Whether an appeal from the Landlord and Tenant Board (LTB) under s. 210 of the Residential Tenancies Act can proceed when it effectively challenges only factual findings rather than raising a true question of law.
• Use of Rule 2.1.01 of the Rules of Civil Procedure to summarily dismiss an appeal that is frivolous, vexatious, or an abuse of process based on the face of the notice of appeal and written submissions.
• Characterization of the landlord’s complaints about alleged false testimony and misapprehension of evidence as impermissible attempts to re-litigate factual findings already determined by the LTB.
• Evaluation of the landlord’s reliance on statutory obligations (including the Condominium Act and other legislation) to justify conduct found by the LTB to be harassment of the tenant.
• Treatment of a new Human Rights Code argument raised for the first time on appeal and the limitation on advancing new legal theories not argued before the tribunal.
• Determination that the appeal lacked legal merit and thus warranted dismissal without costs, leaving intact the LTB’s order that the landlord pay the tenant $1,048.

Background and procedural history

The dispute in Tong v. Duong arises from a landlord–tenant relationship that deteriorated to the point of formal proceedings before the Landlord and Tenant Board (LTB). The tenant, Lily Duong, alleged that her landlord, Evie Yimin Tong, had engaged in harassment. After considering the evidence, the LTB concluded that the landlord’s conduct did, in fact, amount to harassment of the tenant. As part of the relief ordered, the LTB required the landlord to pay the tenant $1,048, along with other non-monetary remedies. Dissatisfied with this outcome, the landlord sought to appeal the LTB’s decision to the Ontario Superior Court of Justice, Divisional Court, relying on s. 210 of the Residential Tenancies Act, 2006. That statute allows appeals from LTB decisions, but only on questions of law. The appeal was framed as challenging the legal correctness of the LTB’s harassment finding and the associated orders.

Initiation of the appeal and Rule 2.1.01 process

When the Divisional Court reviewed the landlord’s notice of appeal and factum, it quickly became apparent to the presiding judge that the purported grounds of appeal might not disclose any genuine question of law. Acting under Rule 2.1.01 of the Rules of Civil Procedure, the judge directed the court registrar to give formal notice to the landlord that the court was considering dismissing the appeal for lack of any proper grounds. The landlord was invited to file short written submissions explaining why the appeal should not be dismissed under this summary mechanism. The landlord did provide submissions in response. Rule 2.1.01 is designed as a streamlined process that permits the court, on its own initiative, to stay or dismiss proceedings that are frivolous, vexatious, or otherwise an abuse of the court’s process. The rule reflects a broader policy goal: ensuring that clearly unmeritorious or abusive litigation does not consume disproportionate time and expense, either for the opposing party or for the court system. It is meant for obvious cases, not “close calls,” and is not intended to replace more detailed procedural motions.

Legal framework for frivolous or vexatious proceedings

In deciding whether to use Rule 2.1.01, the court emphasized several key principles. First, pleadings, including a notice of appeal, must be read generously. If, on a fair reading, there is a possible viable claim, defects in drafting can be overlooked. Second, the rule is only appropriate where the abusive nature of the proceeding is apparent on the face of the pleading and the associated written submissions. Third, the rule should not be treated as a shortcut for more conventional motions, such as those challenging pleadings or seeking summary judgment. Instead, its core function is to “nip in the bud” proceedings that clearly lack legal merit, in order to shield opposing parties from inappropriate costs and to prevent the misallocation of scarce judicial resources. In assessing frivolousness, the court relied on an established definition that describes frivolous proceedings as lacking a legal basis or legal merit, not being serious, and not being reasonably purposeful. Applying this framework, the court examined the landlord’s notice of appeal and subsequent submissions to determine whether any arguable question of law existed.

Nature of the landlord’s complaints and grounds of appeal

Although the landlord repeatedly labelled her complaints as “errors of law,” the court found that the substance of those complaints focused overwhelmingly on the LTB’s factual findings and evaluation of the evidence. The landlord asserted that the tenant had provided false evidence under oath and sought a contempt order on that basis. She further alleged that the LTB had misapprehended or failed to properly appreciate the evidence and argued that, if the facts had been correctly understood, the Board could not reasonably have concluded that harassment occurred. The landlord also maintained that she had a right to know whether a guest was staying overnight in the rental unit and claimed that her efforts to uncover this information could not legally amount to harassment. These arguments were advanced in part through references to various statutes, including s. 17 of the Condominium Act, 1998, which concerns tenant compliance with condominium rules. However, the court observed that pointing to statutory provisions did not change the underlying reality: the landlord was challenging how the LTB weighed the evidence and applied the facts to the law, rather than contending that the LTB had misunderstood the law itself. Under s. 210 of the Residential Tenancies Act, this kind of factual re-argument is not within the proper scope of an appeal, which is limited strictly to questions of law.

New legal arguments and the Human Rights Code

In addition to her factual challenges and statutory references, the landlord complained that the LTB had failed to apply the Human Rights Code. The Divisional Court noted that this argument had not been raised before the LTB. As a matter of appellate practice, parties are generally not permitted to raise new legal theories or grounds for the first time on appeal when they could and should have been advanced at the original hearing. This principle is especially significant in appeals from specialized tribunals, where the legislature has conferred primary responsibility for fact-finding and initial legal analysis on the tribunal itself. The court therefore discounted the Human Rights Code argument as an improper new ground and concluded that, even taken at its highest, it did not transform the landlord’s appeal into one that genuinely engaged a question of law.

Decision of the Divisional Court and final outcome

After considering the landlord’s notice of appeal, the factum, and the written submissions filed in response to the Rule 2.1.01 notice, the Divisional Court held that there were no meritorious grounds of appeal. The court found that, despite repeated use of the language of “errors of law,” the landlord was in substance attempting to re-litigate factual findings made by the LTB, including credibility assessments and the characterization of her conduct as harassment. Since s. 210 of the Residential Tenancies Act restricts appeals from the LTB to questions of law, this approach fell outside the court’s appellate jurisdiction. On this basis, the judge concluded that the appeal lacked legal merit and was frivolous, vexatious, or an abuse of process within the meaning of Rule 2.1.01. The appeal was therefore dismissed at this early stage. Importantly, the Divisional Court ordered that the appeal be dismissed “without costs,” meaning that it did not require either party to pay the other’s legal costs for the appeal. As a result, the LTB’s original order remained fully in force, including the finding of landlord harassment and the monetary award to the tenant. The successful party in the overall matter is the tenant, Lily Duong, in whose favour the Board’s decision is preserved; the total quantified monetary amount ordered in her favour is $1,048 from the LTB decision, with no additional costs, damages, or monetary awards granted by the Divisional Court itself.