COURT FILE NO.: 422/07

DATE: 20080606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, KITELEY AND LOW JJ.

B E T W E E N:

MARTIN KULAS

Tenant/Respondent

• and –

METCAP LIVING MANAGEMENT INC.

Landlord/Appellant

Michael A. Leitold, for the Tenant/ Respondent

W. Jaskiewicz, for the Landlord/Appellant

HEARD at Toronto: June 6, 2008

LOW J.: (Orally)

1The basis of the appeal is that the appellant was denied natural justice by reasons of the refusal of an adjournment.

2The Notice of process was given July 11^th for a July 30^th hearing. The requirement is only for ten days notice. The landlord, therefore, had ample notice and ample opportunity to prepare. It is not until fourteen days later that it seeks an adjournment saying that its representative is “unavailable”. There is no evidence or explanation before the Tribunal as to why the representative is unavailable or why it is that she did not learn until July 25^th that she was unavailable.

3In the circumstances, there was in effect no plausible explanation for the adjournment request, which the landlord presumed would be granted.

4In our view, the presence or absence of a reasonable explanation for the request for an adjournment is a relevant factor to be taken into account by the Tribunal in the exercise of its discretion whether or not to grant an adjournment.

5While the Tribunal is to weigh prejudice, a relevant consideration is whether the circumstances leading to the adjournment request are avoidable or are of the requesting party's own making. In circumstances where no plausible explanation is shown as to how the circumstances have arisen that caused the request to be made, any prejudice to the requesting party may properly be seen as of its own making and avoidable.

6The Member was given no arguments or evidence of prejudice to weigh against the prejudice to the tenant. The reasons disclose that he considered relative prejudice presented to him and as the control of the process is within the discretion of the Tribunal, we are not satisfied that on these facts the Tribunal erred in principle.

7We dismiss the appeal.

LOW J.

KITELEY J.

JENNINGS J. (Dissenting)

8The landlord requested an adjournment of this hearing of a ten month old property damage claim at its first return date because its representative to whom the file had apparently been assigned could not attend.

9Two weeks after being served with this application, the landlord gave notice to the tenant of its proposed request for an adjournment.

10Although the representative of the landlord who attended to request the adjournment gave, through her obvious inexperience, little assistance to the Member as to why the adjournment was requested, the Member utterly failed to balance the issues of prejudice to both the landlord and the tenant of granting the requested adjournment.

11There clearly no was prejudice to the tenant for which he could not have been compensated by an order for costs, including an order for payment of out-of-pocket expenses if indeed any had been incurred.

12In my opinion, the Member therefore failed to judicially exercise his unquestioned discretion to refuse an adjournment.

13I would allow the appeal and remit the matter to the Board for a hearing.

14I have endorsed the Record: “The appeal is dismissed for oral reasons delivered today by Low J., Jennings J. dissenting.”

COSTS

15In view of the concession made by counsel for the appellant, we will fix costs at $1,000, inclusive.

JENNINGS J.

Date of Reasons for Judgment: June 6, 2008

Date of Release: June 17, 2008

COURT FILE NO.: 422/07

DATE: 20080606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT