Court File and Parties
CITATION: CIBC Mortgages Inc. v. Monaghan, 2010 ONSC 2000
DIVISIONAL COURT FILE NO.: 433/09
DATE: 20100406
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CIBC MORTGAGES INC. c/o VERANOVA PROPERTIES
Plaintiff/Landlord
(Respondent in Appeal)
– and –
MICHAEL MONAGHAN
Defendant/Tenant
(Appellant in Appeal)
Counsel:
Ron Aisenberg, for the Plaintiff/Landlord (Respondent in Appeal)
In Person
HEARD at Toronto: April 6, 2010
Reasons for Judgment
LEDERMAN J. (orallY)
[1] The test for determining whether a Registrar’s Dismissal Order should be set aside is to adopt a contextual approach and weigh the relevant factors and determine what is just in all of the circumstances of the particular case.
[2] In this case, the initial order of the Landlord and Tenant Board was made on April 20, 2009 and the decision denying the request for review was made on August 21, 2009. The Notice of Appeal was served by the appellant/tenant on September 18, 2009. On October 5, 2009, the landlord served its certificate respecting evidence requiring transcripts. On December 28, 2009, the reporter confirmed that the transcripts had been completed. Because of his limited financial resources, the appellant/tenant was unable to pay for the transcripts until January 18, 2010.
[3] The appeal should have been perfected sixty days after December 28, 2009, but was not. On March 22, 2010 the Registrar dismissed the appeal for failure to perfect the appeal within the prescribed time.
[4] The tenant has provided an explanation for the delay in perfecting the appeal in that he could not afford to pay for the transcripts until January 18, 2010; he was not familiar with the procedural requirements; and as a result there was inadvertence in meeting the deadline. He did move promptly to set aside the Registrar’s Dismissal Order. No significant prejudice will be suffered by the landlord if the Registrar’s order is set aside and a short extension given to perfect the appeal.
[5] An appeal lies to the Divisional Court on a question of law alone. It is not clear that the grounds of appeal raise only questions of law. However, the landlord has not moved as yet to quash the appeal on this basis.
[6] In the circumstances, at this stage it is just that the tenant’s appeal not be dismissed for failure to meet the procedural deadlines. Accordingly, the Registrar’s Dismissal Order is set aside and an extension is granted until April 20, 2010 for the appellant to perfect the appeal by serving and filing the transcripts, the appeal book and compendium, exhibit book and factum. If the appeal is not perfected within that time, the respondent may move to dismiss the appeal.
[7] The motion took a little over half an hour. The respondent has filed no material on this motion. In the circumstances, there will be no costs of today’s attendance.
LEDERMAN J.
Date of Reasons for Judgment: April 6, 2010
Date of Release: April 8, 2010
CITATION: CIBC Mortgages Inc. v. Monaghan, 2010 ONSC 2000
DIVISIONAL COURT FILE NO.: 433/09
DATE: 20100406
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CIBA MORTGAGES INC. c/o VERANOVA PROPERTIES
Plaintiff/Landlord
(Respondent in Appeal)
– and –
MICHAEL MONAGHAN
Defendant/Tenant
(Appellant in Appeal)
REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: April 6, 2010
Date of Release: April 8, 2010