Court File No.:143/09

Released: 20090608

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Max Rai v. Jefflin Investments Ltd.

Before: Karakatsanis J.

Counsel: Max Rai, Tenant/Appellant, representing himself

Patrick J. Harrington for the Landlord, moving party

Heard at Toronto: June 1, 2009

ENDORSEMENT

[1] Max Rai, the tenant, appeals from two decisions of the Landlord and Tenant Board dated February 20, 2009 (the Arrears Order) and February 23, 2009 (the Maintenance Order). The two matters were heard together.

[2] The landlord brings this motion to quash the appeal and lift the stay. An appeal lies to this Court only on a question of law. The landlord submits that the Notice of Appeal was out of time and that the grounds of appeal are without merit or do not disclose any alleged error of law.

[3] In the Arrears Order, the Board found that the tenant had not paid rent since June 1, 2008, totalling $8,224.66 and gave the tenant an opportunity to pay failing which the tenancy was terminated. In the Maintenance Order, the Board found that the landlord was not negligent in addressing any maintenance obligations under the Act.

[4] The tenant sought a review of the Maintenance Order which was refused by the Board the next day on March 26, 2009. The Board was not satisfied that a serious error was made in the Maintenance Order or the proceedings leading up to it. This decision was not appealed.

[5] The tenant has not paid any arrears but has kept current with his rent.

[6] An appeal may be brought to the Divisional Court within 30 days of being given the Order. The Notice of Appeal was filed March 31, 2009. On its face, the Notice of Appeal indicates that the decisions were received by him on March 2, 2009.

[7] An appeal is allowed on a question of law alone. The landlord submits the appeal does not raise a question of law and is manifestly devoid of merit.

[8] The grounds of appeal in the Notice of Appeal challenge the findings of fact in the Maintenance Order. The Notice of Appeal alleges that the Board member erred and failed to consider the sworn evidence of the tenant; that the Board member exceeded his jurisdiction by failing to correctly apply ss. 83(1) and (2) of the Act; and that the Board member was biased and did not give a fair hearing. The grounds of appeal do challenge the findings relating to the arrears of rent in the Arrears Order.

[9] With respect to the Maintenance Order, the ground of appeal alleging bias was not raised in the request to review before the Board and there is no bias alleged apart from the member’s failure to consider the tenant’s evidence and except as arising from the decision itself. It is plain and obvious that this ground of appeal must fail. Furthermore, the decision explicitly considers ss. 83(1) and (2) of the Act and the Notice of Appeal does not state the nature of the error. Presumably, the appellant relies upon errors of fact.

[10] The grounds of appeal appear to relate to the findings of fact or at best questions of mixed fact and law. However, failure to consider relevant evidence may, in some circumstances, amount to an error of law. I am not prepared to find that it is plain and obvious that the appeal of the Maintenance Order cannot succeed.

[11] The tenant indicated that he will be keeping rent current but did not wish to pay arrears because he believed that the maintenance claim could exceed his arrears. However, there is some history of non-payment, the arrears are approaching the maximum monetary jurisdiction of the Landlord and Tenant Board and the grounds of appeal do not relate to the amount of arrears of rent. It is plain and obvious that the appeal cannot succeed with respect to the amount of arrears as found in these circumstances, the tenant should be required to pay the arrears and keep current, pending the hearing of the appeal.

[12] As a result, the motion to quash the appeal is dismissed. The Certificate of Stay in respect of the Arrears Order is lifted and the tenant shall pay the arrears and keep his rent current. The tenant shall pay into Court or pay to the landlord the arrears of rent and any outstanding per diem compensation in accordance with the Arrears Order no later than July 10, 2009. The tenant shall pay his ongoing rent as it becomes due on the first of each month. If the tenant fails to pay, the appeal shall be dismissed and the landlord may move to quash the appeal on affidavit evidence.

Karakatsanis J.

Released: June 8, 2009