DIVISIONAL COURT FILE NO.: 71/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
LAURENT LEDUC, ROBERT J. KENNERY, ROBERTA KENNERY, KEITH TERRANCE SCOTT and CAROL MCKINLEY
Tenants
(Appellants)
– and –
GLEN ECHO PARK INC., 1069942 ONT. LTD., EDWARD TODOROWSKY, and MARY TODOROWSKY
Landlords
(Respondents)
AND BETWEEN:
ROBERT J. KENNERY, ROBERTA KENNERY, LAURENT LEDUC, CAROL MCKINLEY, KEITH TERRENCE SCOTT, DIANE LITSTER and BRIAN LITSTER
Tenant
(Appellants)
- and -
GOLDSHATZ and COMPANY, JONAH S. TURK, GLEN ECHO PARK INC., 1069942 ONTARIO LTD., EDWARD TODOROWSKY and MARY TODOROWSKY
Landlords
(Respondents)
Andrea J. Sanche and Gleb Bazov, for the Tenants (Appellants)
Joseph J. M. Hoffer and Kristin A. Ley, for the Landlords (Respondents in Appeal)
HEARD at Toronto: April 21, 2011
LEDERER J. (orally)
1This is a motion brought by the owners of land to quash an appeal (“the Respondents”). The appeal was commenced with respect to the decision of the Landlord and Tenant Board. The appellants are individuals who seek to be recognized as having the rights of tenants on the property (“the Appellants”). The decision of the Landlord and Tenant Board refused to grant those rights. In other words the Board ruled that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the Act”) did not apply to the relationship between the parties.
2The proceeding has a somewhat longer history than this introduction would imply.
3During 2009 the appellants commenced applications before the Board seeking a determination that the Act applied to land leases they held in respect to the property. On October 2, 2009 the Board determined that the Act applied. The respondents sought a review hearing of the order. The question of whether there should be a review is an independent determination made by the Board pursuant to the Act, s.209 and the Rules of Practice of the Landlord and Tenant Board (see Rule 29).
4On January 11, 2010 the Board determined that there would be a review. The Review Hearing proceeded on January 11, 2010 and continued on March 12, 2010, April 28, 2010, June 23, 2010 and September 3, 2010. On January 5, 2011 the Board issued a decision by which it found that the Act did not apply to the relationship between the parties.
5The Notice of Appeal is dated February 4, 2011. The appeal is with respect to the decision of the Board to grant the review and the decision of the review, being that the Act does not apply.
6The motion seeks to quash the former because it is out of time and moot and the latter because it does not raise a question of law and therefore does not fall within the jurisdiction of the Divisional Court.
Granting of the Review
7The appeals are brought pursuant to s.210(1) of the Act:
Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. [Emphasis added]
8The Notice of Appeal is dated more than one year after the decision to allow the Request for Review. Clearly this is well beyond the 30 days allowed for by the Act.
9Counsel for the appellants said that this was not the appropriate perspective from which to examine the issue. In his view the order to allow the Request for Review is interlocutory and not final. Thus, the 30 days did not begin to run until the release of the decision on January 5, 2011. As counsel sees it, this was the decision which finally determined the proceeding.
10The decision of the Board does not bear this out. In reporting on this ruling the Board said:
I found that it was incumbent upon the Board to cure its own procedural error by means of a fresh hearing of the merits of the jurisdictional matters.
I therefore granted the review and decided that a de novo hearing of the jurisdictional applications was necessary.
(Reasons of the Board, issued: January 5, 2011, at paras. 2 and 4).
11This was a final determination of the earlier proceedings and marks the commencement of a fresh hearing considering the jurisdictional issues raised by the appellants.
12This does not end the matter.
13The parties agreed that s.210(5) of the Act provides the court with the authority to extend the 30 day time limit referred to in s.210(1). Section 210(5) notes:
The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
[Emphasis added]
14This is a matter for the discretion of the court.
15While the Rules of Civil Procedure do not, strictly speaking, apply to a statutory right of appeal. Counsel for the appellant submitted that reliance should be placed on the test for the extension of time applicable to appeals under the Rules. These are:
(i) the intention to appeal was formed within the applicable time period,
(ii) there was a reasonable explanation of the delay,
(iii) the extent of any prejudice to the respondents, and
(iv) the justice of the case, which is to say that the appeal was not entirely devoid of merit.
16This is not a situation in which I will exercise the discretion of this court to extend the time limit involved. The tests referred to, while helpful, are not necessarily determinative of the issue. My concern is that we are now more than one year after the hearing of the review was commenced. The substance of this aspect of the appeal reflects on a determination that, as a result of what the Board found to be a “serious error of procedure with the initial hearing, a review should take place. This is a procedural finding. It is too late to return to an issue of this kind. There have been five days of hearing over many months and a decision on the merits a year later. At no time was there any indication that such an appeal was being considered much less commenced. In my view, for processes of tribunals such as the Landlord and Tenant Board, to be effective it is necessary that final determinations be made with appropriate expedition, at reasonable costs. At this late stage it would defeat this purpose to go back and examine whether a finding that an earlier process was subject of procedural error was, itself, wrong.
17It may be as the appellants now say (and one of them deposed in an affidavit) that they “intended then and also now have a bona fide intention to appeal”. It may be, as their counsel submits, that they were unrepresented and did not know that there was a time limit for the appeal to be started but there is no evidence of which I was made aware to suggest they advised anyone of these concerns. Everyone else involved was led to believe that the determination to review had been accepted by the appellants. There can be prejudice which develops from the passage of time and the understanding that a matter is to proceed. In this case it is best that the Court deal with the decision which determined the merits.
The Review Hearing
18Section 210(1) of the Act makes clear that an appeal must raise “a question of law”. Counsel for the respondents submitted that no such question is present. In making this argument he relied on the Notice of Appeal which he says demonstrates that the law is accepted. What is questioned is the application of the facts to the law. Counsel says that such concerns are issues of mixed fact and law and not properly the subject of this appeal.
19To me, it is not clear that this is necessarily so. Questions of fact and law can be tightly interwoven. The nature of the question to be answered may not always be clear. The Court of Appeal has said:
The Board was entitled to find as a fact that the sizable landscape lands, fenced in for the use of the tenants, with the lawns, pathways and trees, were built and installed for a recreational function. The Board’s findings of fact are not subject to appeal. Whether these facts, as found, are reasonably capable of meeting the definition of creational facilities within the meaning of the [Residential Tenancy] Act is a question of law to be determined. [Emphasis added]
(First Ontario Realty Corp. v. Deng, 2011 ONCA 54, at para. 47)
20In Ogg-Moss, the Supreme Court of Canada entertained a submission by the accused that the applicability of a specific section of the Criminal Code to a given set of circumstances was a question of fact, and that the Crown was, therefore, disentitled to appeal. Dickson J. disagreed. He stated:
I cannot accept these submissions. In the present case the issue of the applicability of s.43 depends on the legal definition and meaning of various terms and phrases in that section and whether, therefore, there was any evidence before the court below capable of sustaining a conclusion that s.43 did apply. These are clearly legal questions and therefore within the jurisdiction of the Court of Appeal.
(Ogg-Moss v. R. 1984 77 (SCC), [1984] 2 S.C.R. 173, at para. 14)
21This is a preliminary motion. It seeks to have the matter dealt with in circumstances where full submissions are not heard. To my mind, in the absence of full submissions, it is not possible to determine with certainty whether any of the issues raised demonstrate a question of law.
Conclusion
22In the result, the motion with respect to the Request for Review is granted. The appeal of that matter is dismissed. It is out of time.
23The motion with respect to the review itself is dismissed.
COSTS
24The parties have agreed to the quantum of costs at $3,500.00. Having heard the mixed result, counsel for the respondents, the moving party here proposes that there be no costs. Counsel for the appellants, the responding party here says I should either award $3,500.00 to his clients now or award that amount in the cause of the appeal. I award $1,750.00 in the cause of the appeal.
LEDERER J.
Date of Reasons for Judgment: April 21, 2011
Date of Release: May 18, 2011
CITATION: Leduc v. Glen Echo Park Inc., 2011 ONSC 2573
DIVISIONAL COURT FILE NO.: 71/11
DATE: 20110421
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
LAURENT LEDUC, ROBERT J. KENNERY, ROBERTA KENNERY, KEITH TERRANCE SCOTT and CAROL MCKINLEY
Tenants
(Appellants)
– and –
GLEN ECHO PARK INC., 1069942 ONT. LTD., EDWARD TODOROWSKY, and MARY TODOROWSKY
Landlords
(Respondents)
AND BETWEEN:
ROBERT J. KENNERY, ROBERTA KENNERY, LAURENT LEDUC, CAROL MCKINLEY, KEITH TERRENCE SCOTT, DIANE LITSTER and BRIAN LITSTER
Tenant
(Appellants)
- and -
GOLDSHATZ and COMPANY, JONAH S. TURK, GLEN ECHO PARK INC., 1069942 ONTARIO LTD., EDWARD TODOROWSKY and MARY TODOROWSKY
Landlords
(Respondents)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: April 21, 2011
Date of Release: May 18, 2011