Court File and Parties

Court File No.: 207/09

Released: 20090608

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Vanessa Wallace v. Aplomb Properties Inc.

Before: Karakatsanis J.

Counsel: Vanessa Wallace, Tenant/Appellant representing herself Sean E. Cumming for the Landlord/ Respondent

Heard at Toronto: June 1, 2009

ENDORSEMENT

[1] Vanessa Wallace, the tenant, appeals from the review decision of the Landlord and Tenant Board dated April 23, 2009 (the Review Order) denying her request to review the Board order dated April 8, 2009 (the Order). The tenant also appeals that Order which was made in her absence.

[2] The landlord brings this motion to quash the appeal. An appeal lies to this Court only on a question of law and the landlord submits that the Notice of Appeal does not disclose any alleged error of law.

[3] The tenant did not attend the landlord’s application to terminate the tenancy for non-payment of rent on April 8, 2009 and the standard Order was issued fixing the arrears and giving the Tenant an opportunity to pay the arrears failing, which the tenancy was terminated and the tenant was required to vacate on or before April 19, 2009.

[4] On April 23, 2009, the tenant filed a request for review of the April 8, 2009 Order on the basis that she had not attended the hearing because she had a sick child, that she was unable to pay due to financial hardship and that she wanted to make arrangements with the landlord to pay the arrears over time. The Board noted the delay in bringing the request to review and did not accept that the tenant was unable to participate in the hearing. In any event, the Board found that the tenant did not raise any error in the Order and therefore refused to order a review.

[5] The grounds of appeal in the Notice of Appeal do not disclose any grounds of appeal relating to the Order of April 8, 2009. The grounds of appeal relate to the Review Order dated April 23, 2009 and the Board’s refusal to accept her reason for not attending the hearing and its failure to allow her an opportunity to repay the rent arrears and maintain her housing. The appellant does not dispute the arrears of rent owing or suggest any error on the merits of the April 8, 2009 Order. She wants an opportunity to repay the arrears over time and maintain her housing.

[6] The test on a motion to quash is whether it is plain and obvious the appeal would not succeed. In my view it is plain and obvious that this appeal cannot succeed. The Board was entitled to exercise its discretion refuse to review the Order as no error on the merits was alleged.

[7] The tenant does not dispute that there are significant arrears and that rent has not been kept current. The tenant stopped working to care for her son who was in a car accident and has applied for social assistance. The landlord appeared willing to work out a repayment schedule if she is able to keep current and make some contribution towards arrears. I gave the parties an opportunity to resolve this matter and asked them to advise me if they were able to do so by the end of the week. The parties do not appear to have settled this matter voluntarily. The landlord can agree to accept a repayment schedule. However, neither the Board nor the Court can require it to do so.

[8] As a result, the appeal is quashed. The requirement that the Order be approved as to form and content is dispensed with.

[9] The landlord shall have costs of $500, all inclusive.

Karakatsanis J.

Released: June , 2009