Court File and Parties
CITATION: Fernando v. Medallion Corporation, 2010 ONSC 811
DIVISIONAL COURT FILE NO.: 53/10
DATE: 20100202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JUDE FERNANDO
Tenant/Respondent
Appellant
– and –
MEDALLION CORPORATION
Landlord/Applicant
Respondent in Appeal
Jack de Klerk, for the Tenant/Respondent Appellant
David Strashin, for the Landlord/Applicant Respondent in Appeal
HEARD at Toronto: February 2, 2010
Oral Reasons for Judgment
dambrot j.
[1] The applicant was a tenant in a rental unit at 565 Sherbourne Street, Suite 2709. The respondent is the landlord.
[2] In a decision dated December 3, 2009 the Landlord and Tenant Board denied an application to review an earlier order of the Board terminating the tenancy and evicting the tenant.
[3] The tenant wishes to appeal this decision to the Divisional Court but did not file and serve his Notice of Appeal within the time provided for by the Residential Tenancies Act. He was in fact evicted. In this motion the tenant seeks an extension of the time for serving and filing of his appeal and an order permitting him to return to the rented premises pending his appeal as well as other relief which I will not list.
[4] There is no dispute that the appellant’s proposed appeal is not frivolous and in my view there is no great prejudice to the landlord if the motion is granted. The tenant however did not have an intention to appeal within the time limited for appeal. This he says is because of language problems that prevented him from understanding what was decided on December 3, 2009.
[5] I have a somewhat jaundiced view of this assertion given the tenant’s conduct throughout these proceedings and his evident ability to get advice and take steps to protect his rights when it is in his interest to do so. I am however sufficiently concerned about the possible unfairness of denying an appeal to someone who may suffer from a language barrier that I will give him the benefit of the doubt on the issue. In my view that would be the better course in the overall interest of justice. Accordingly, I grant an order extending the time for serving and filing this appeal until February 10, 2010, and an order permitting the appellant to return to the rented premises pending his appeal.
[6] I note that the tenant also seeks an extension of time to appeal the decision of the Board dated August 19, 2009. In my view such an extension is neither justified nor necessary. The issues will all be subsumed in the appeal from the December decision. The other relief sought by the tenant is refused.
[7] My order will be subject to the following conditions:
(i) The appeal is to be expedited and the appellant must take all reasonable steps to ensure that it is heard by the end of May 2010, if possible.
(ii) If the appeal is not listed for hearing by that date, the respondent may apply to the Court on notice for an order summarily dismissing the appeal which will be ordered in the discretion of the Court.
(iii) The appellant is to pay all rent on time during the period that the appeal is pending. If any rental payment is not made on time the respondent may bring an ex parte motion to the court for an order summarily dismissing the appeal.
(iv) The payment of the outstanding rent for February 2010 is a pre-condition of the tenant’s re-entry into the premises.
[8] I make no order as to costs.
DAMBROT J.
Date of Reasons for Judgment: February 2, 2010
Date of Release: February 5, 2010
CITATION: Fernando v. Medallion Corporation, 2010 ONSC 811
DIVISIONAL COURT FILE NO.: 53/10
DATE: 20100202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JUDE FERNANDO
Tenant/Respondent
Appellant
– and –
MEDALLION CORPORATION
Landlord/Applicant
Respondent in Appeal
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: February 2, 2010
Date of Release: February 5, 2010