Court of Appeal for Ontario

Date: 2025-04-29
Docket: COA-25-OM-0116 & COA-25-OM-0118
Judge: L.B. Roberts (Motions Judge)

Parties

COA-25-OM-0116
Between:
Michael Schram and Leslie Mitchell
Plaintiffs (Moving Parties/Appellants)

and

Linwood Management Corporation, Huron Green Incorporated, and Corporation of the Municipality of South Huron
Defendants (Responding Parties/Respondents)

COA-25-OM-0118
And Between:
Michael Schram
Tenant (Moving Party/Appellant)

and

Huron Green Inc. c/o Linwood Property Management
Landlord (Responding Party/Respondent)

Appearances:

• Michael Schram and Leslie Mitchell, acting in person
• Kristin Ley, for the respondent, Huron Green Inc. c/o Linwood Property Management
• Charles Painter and Lauren Furukawa, for the respondent, The Corporation of the Municipality of South Huron

Heard: April 24, 2025

Endorsement

Introduction

[1] The moving party tenants seek an extension of time to file:

1. a notice of motion for leave to appeal the March 17, 2025 order of the Divisional Court, which upheld the termination of their tenancy by the Landlord and Tenant Board (“LTB”); and
2. a notice of appeal of the February 13, 2025 order of Perfetto J. of the Superior Court of Justice dismissing their action.
   If those motions are granted, the moving parties move also to stay the eviction order and the dismissal of their action that they wish to appeal.

2The motions were initially returnable before me on an urgent basis on April 23, 2025 and then adjourned to April 24, 2025, to permit the responding parties to file responding materials. Given the time exigencies, as the eviction was scheduled for 8:30 a.m. on April 25, 2025, in a very brief endorsement released on April 24, 2025, I dismissed the motions, with costs to the responding parties, the amounts to be determined, for reasons to follow. These are my promised reasons.

Factual Background

3A brief factual background suffices to provide the necessary context. The moving parties have been long-time tenants of a rental house and land in a land lease community owned by Huron Green Inc. c/o Linwood Property Management (“Huron Green Inc.”). For many years, the moving parties had a canvas shed in their backyard which housed their lawnmower and snowblower. Although this shed was permitted when first erected, the rules of the land lease community changed in 2021 because of safety concerns when in 2018 a canvas shed on another property blew away. Huron Green Inc. gave several notices to the moving parties to remove the canvas shed and advised that they were authorized to put up a different shed. The moving parties refused to do so.

4On May 2, 2022, Huron Green Inc. gave the moving parties a notice of termination of their tenancy. On May 20, 2022, the moving parties commenced an action against the responding parties seeking damages of $40,000,000. On May 24, 2022, Huron Green Inc. brought an application before the LTB to terminate the moving parties’ tenancy on the basis that their refusal to remove the canvas shed substantially interfered with its lawful right, privilege or interest pursuant to s. 64(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). The LTB allowed the application. On review, the LTB confirmed the termination of the tenancy. The moving parties appealed to the Divisional Court. Their appeal was dismissed with costs of $3,000 to Huron Green Inc.

Legal Framework

[5] The overarching consideration in determining whether to grant leave to extend the time to file a notice of appeal and a notice of motion for leave to appeal is the same: does the justice of the case warrant the extension. Informing that consideration are the following oft-cited factors:

1. whether the appellant formed an intention to appeal within the deadline for appealing;
2. the length of and explanation for the delay;
3. prejudice to the responding party; and
4. the merits of the proposed appeal.
   Lack of merit alone can be a sufficient basis on which to deny the extension of time, particularly when the moving party seeks an extension to file a notice of leave to appeal. See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, paras. 15, 16; 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412, paras. 21, 34.

6The moving parties meet the first two criteria. However, as I explain, they fail to overcome the merit and prejudice factors.

Merits of the Proposed Appeals

7I acknowledge that in assessing the merits of the proposed appeals, I am not finally determining them. Rather, I must consider whether the proposed appeals have so little merit that the appellants should be denied their right to appeal and seek leave to appeal: Issasi v. Rozenzweig, 2011 ONCA 112, para. 10; Pantoja v. Belilla, 2023 ONCA 757, para. 4. I conclude that is the case here.

8With respect to the motion for leave to appeal the Divisional Court’s order, the stringent test for granting appeal was helpfully summarized by Gillese J.A. in 828343 Ontario Inc., 2022 ONCA 412, para. 22:

The Decision was rendered by the Divisional Court exercising its appellate jurisdiction. Such decisions are intended to be final and a review of them, by this court, is an exception to that general rule. Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed law and fact, that requires the court to consider matters of public importance, such as the interpretation of legislation or clarification of some general rule or principle of law: Sault Dock Co. Ltd. v. Sault Ste. Marie (City), para. 8. There also may be special circumstances that make the matter sought to be brought to this court a matter of public importance or involve a clear error in the Divisional Court decision that requires correct: Sault Dock, at paras. 9-10.

9In my view, the moving parties’ motion for leave to appeal does not meet this test. The main focus of their appeal is that the LTB and the Divisional Court erred in finding that the moving parties’ rental unit was part of a land lease community as defined under the RTA. As a result, they argue, Huron Green Inc.’s rules requiring them to remove their canvas shed do not apply to them.

10The moving parties’ ground of appeal faces two hurdles. First, as noted by the LTB on its review and also by the Divisional Court, this ground was not raised before the LTB. As a result, there was no challenge to Huron Green Inc.’s evidence that the moving parties’ rented premises formed part of a land lease community and therefore were subject to the rules enacted by Huron Green Inc. It is well established that an appeal court will not lightly entertain a new issue on appeal when it is not simply a legal issue that can be determined on the existing record: Kaiman v. Graham, 2009 ONCA 77, para. 18.

11Second, the moving parties’ main ground of appeal is without merit. There is no ambiguity about the meaning of the RTA provisions regarding rental units within land lease communities and the authority of the landlord to make rules. As the Divisional Court stated, the moving parties’ rental unit is located in a land lease community of about 400 rental units and nineteen “land lease homes”. As the Divisional Court further noted, s. 2(1) of the RTA defines “land lease community” to mean the land on which land lease homes are situate “and includes the rental units and the land, structure, services and facilities of which the landlord retains possession and that are intended for the common use and enjoyment of the tenants of the landlords”. There is no issue that the moving parties’ unit is a rental unit. The Divisional Court correctly stated that the rental unit forms part of a land lease community. With respect to this court’s confirmation that the land lease provisions of the RTA apply to the rental units situated within land lease communities, see, for example: Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468; North York General Hospital Foundation v. Armstrong. The Divisional Court concluded, again correctly in my view, that “pursuant to s. 154(1) of the RTA, the landlord can enact community rules provided that proper notice is given to the tenants (which is not disputed). Here [Huron Green Inc.] enacted a rule about canvas sheds, but [the moving parties] chooses to disobey.” The moving parties have not raised any arguable issue that would warrant granting leave to appeal the Divisional Court’s decision.

12The moving parties’ motion for an extension of time to file a notice of appeal from Perfetto J.’s order is similarly without merit. Perfetto J. determined, correctly in my view, that the action raised the same or similar issues that were already determined by or could have been determined by and were within the exclusive jurisdiction of the LTB. The moving parties also raised s. 15 Charter of Rights and Freedoms and conspiracy claims. Perfetto J. determined that neither claim was properly pleaded nor raised a reasonable cause of action and dismissed them. Again, the moving parties have not raised an arguable issue that would justify appellate intervention.

Prejudice

13As for the question of prejudice, the delay here is short. However, the safety issue posed by the ongoing presence of the canvas shed on the property for which Huron Green Inc. is responsible constitutes prejudice to Huron Green Inc. Although Mr. Schram advised in his submissions that he has removed the canvas shed in issue because it fell down, he stated his intention to erect another canvas shed. The expenditure of further time and resources by Huron Green Inc. and of time and public resources by a municipal corporation to respond to meritless appeals also constitutes prejudice: Pantoja v. Belilla, 2023 ONCA 757, para. 13.

Disposition

14Accordingly, I concluded that the justice of the case did not warrant granting the extensions and dismissed the extension motions. As the extension motions were dismissed and no appeals are extant, there is no basis for me to grant a stay: see rule 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

15Even if there were, I would not have granted the requested stay substantially for the reasons refusing the extension motion: there is no serious issue to be tried because the moving parties have not raised arguable issues; they have not persuaded me that they would suffer irreparable harm in that they have known of the eviction for some time and have not provided any evidence that they could not seek accommodation elsewhere; and the balance of convenience favours the responding parties because of the safety concerns and the waste of public resources on meritless appeals. The motion for a stay is therefore dismissed.

Costs

16The responding parties are entitled to their all-inclusive costs of these motions from the moving parties as follows:

1. To Huron Green Inc.: $2,500;
2. To the Corporation for the Municipality of Huron: $2,000.