DIVISIONAL COURT FILE NO.: 530/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MOISE JONES
Appellant
– and –
MICHAEL MATTHEWS
Respondent
Irma Sirvinskaite, for the Appellant
In Person
HEARD at Toronto: November 14, 2012
GRACE J.
1Mr. Matthews’ application to the Landlord and Tenant Board (“Board”) came on for hearing on May 16, 2012. Mr. Matthews attended. His landlord, Mr. Jones, did not.
2Among other things, the Board (Sylvia Watson) required that Mr. Jones pay Mr. Matthews $7,720.
3Section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), confers a limited right of appeal. It provides:
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.
4Mr. Jones wishes to appeal but did not do so in time. He seeks an extension.
5While he did not file any material, Mr. Matthews appeared and objected to the relief sought.
6The Board was served, as the RTA requires, but takes no position on the motion.
7I have assumed that the court has jurisdiction to extend the statutory time period. That appears to have been assumed by Jennings J. in Hornstein v. Royal Bank, 2010 CarswellOnt. 593 (Div. Ct.)
8Counsel for Mr. Jones, Ms. Sirvinskaite, did not refer me to any provision which would apply. Rule 3.02 of the Rules of Civil Procedure does not assist because the 30 day time limit applicable here is a creation of statute (the RTA), not a procedural rule.
9Section 190 of the RTA gives the Board permission to extend time requirements in proceedings before it. Is the failure to confer a right to extend time on the Divisional Court in the RTA an indication no such power exists? The answer to that question should await another day.1
10Assuming the court has the ability to extend time, Ms. Sirvinskaite acknowledges various factors must be considered by the Court:
(a) Has the appellant maintained a firm intention to appeal within the statutory period?
(b) Has the appellant provided a reasonable explanation for the delay?
(c) Is there prejudice to the respondent in granting the extension?
(d) Is there so little merit in the proposed appeal that the court should reasonably deny the appellant the opportunity to appeal? (See Brotti v. Wabco Standard Trane Inc.(1994), 1994 1261 (ON CA), 25 C.B.R. (3d) 1 (Ont. C.A.); Mauldin v. Cassels Brock LLP, 2011 ONCA 67 at para. 5).
11Fundamentally, does the justice of the case require the granting of an extension of time?
12The evidence on the motion consisted of an Affidavit of Mr. Jones sworn October 15, 2012 (the “Jones Affidavit”). I will discuss its contents in the context of the factors I have already listed.
A. Intention to Appeal
13At paragraph 20, Mr. Jones deposed that he had retained counsel within the appeal period, that materials had been prepared and service on Mr. Matthews attempted. Unfortunately, none of the material was appended to his affidavit. Nor have I seen an affidavit of attempted service.
14For reasons that will be explained later, the absence of that documentation is of concern to me.
B. Reasonable Explanation for the Delay
15As noted, Mr. Jones deposed that an attempt to serve Mr. Matthews failed.
16In the paragraphs that follow, he deposed that efforts to obtain an urgent mid-summer date for a motion to extend time was unsuccessful and that there was miscommunication which resulted in his counsel not knowing of his intention to proceed until September. This motion (dated October 16, 2012) followed.
17I would have thought it unlikely there would be any misunderstanding and that a date would have been booked for the motion as soon as possible after Labour Day. Nevertheless, I have taken the explanation provided into account.
C. Prejudice to the Respondent
18As noted, the Respondent has not filed any material.
19Ordinarily, prejudice would seem to be minimal since the Board awarded interest at the rate of 3 percent per annum.
20However, the circumstances must also be considered. The dispute arose (according to Mr. Jones’ affidavit, para. 4) after Mr. Matthews’ social assistance benefits were reduced. The majority of the compensation awarded related to “costs that the tenant will incur in replacing property that was destroyed or disposed of as a result of the Landlord’s actions”. (Board decision, para. 1 at p. 4).
21I have not forgotten that Mr. Jones deposes, in para. 15, that Mr. Matthews picked up some of his belongings and that Mr. Jones claims to “still have the remainder of his belongings stored.”
22The reality is, however, that Mr. Matthews has not had possession of those things since late February or early March.
23It is obvious from the context that it is important the issues be resolved in a timely and definitive way.
D. The Appeal
24I am keenly aware that I am not being asked to hear or determine the appeal.
25Mr. Jones maintains the tenant agreed to vacate, reneged and that allegations of substandard living conditions and the wrongful detention and disposal of Mr. Matthews’ personal property are simply false.
26Mr. Jones maintains he was ready to respond to Mr. Matthews’ allegations but deprived of his opportunity to do so because he did not have notice of the hearing until after it was held.
27Ms. Sirvinskaite submits that Mr. Jones was deprived of natural justice and that the Board made an error in law in proceeding in his absence (despite s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”)) and in refusing, it seems, to review the Board’s decision despite s. 21.2 of the SPPA and the Board’s own procedural rules.
28A failure to ensure procedural fairness is, if proven, an error in law.2 However, several points should be made.
29First, Mr. Jones’ affidavit creates the impression he did not know of any date for hearing before the Board. In fact, the Notice of Hearing at Tab 4 (p. 30) of the Motion Record indicated the following under the heading “Purpose of the hearing”:
The hearing to consider the tenant’s application was not completed and the hearing was adjourned. Another date has been scheduled to continue the hearing at the time and place set out below.
30What transpired earlier is unaddressed by Mr. Jones.
31It strikes me as odd that a notice postmarked April 24, 2012 took 24 days before arriving on May 18, 2012 – 2 days after the continuation of the hearing.
32What is more odd is Mr. Jones comments about the notice in his May 22, 2012 “Request to Review an Order” sent to the Board.
33He wrote (at p. 22 of the Motion Record):
I received mail late, therefore I request that you either send mail with 30 days window or send it registered to ensure that I’ll get it on time.
34Mr. Jones did not say that the notice arrived after the hearing date although Ms. Sirvinskaite submitted that is what he meant.
35I presume, although I do not know, that the Board declined the Request to Review, in accordance with the policies and procedures it has published at www.LTB.gov.on.ca. However, same was not included in the materials.
36The combination of omitted materials and the selective history told by Mr. Jones, leads me to conclude that Mr. Jones has not established on a balance of probabilities that his non-attendance was a product of a lack of notice.
37The real possibility exists that Mr. Jones received notice of the continuation of the hearing and, for some reason, failed to attend.
38In that event, the Board was entitled to proceed in Mr. Jones absence and to make the decision it did. It follows that no question of law is raised in the proposed appeal.
39In summary, assuming I have jurisdiction to extend the time set forth in s. 210 RTA, I am not satisfied it is appropriate to do so. Documentary proof that Mr. Jones formed the intention to appeal could have been but was not filed, the explanation for the delay in filing the motion is, at best, thin, there is some prejudice to Mr. Matthews and the appeal appears to have questionable merit.
40That combination leads me to conclude that the justice of the case does not require the granting of an extension of time.
41The motion is dismissed.
42Given the fact that Mr. Matthews did not file any materials, this is not an appropriate case to award costs of the motion.
GRACE J.
Date of Reasons for Judgment: November 14, 2012
Date of Release: November 19, 2012
CITATION: Jones v. Matthews, 2012 ONSC 6447
DIVISIONAL COURT FILE NO.: 530/12
DATE: 20121114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GRACE J.
BETWEEN:
MOISE JONES
Appellant
– and –
MICHAEL MATTHEWS
Respondent
REASONS FOR JUDGMENT
GRACE J.
Date of Reasons for Judgment: November 14, 2012
Date of Release: November 19, 2012
Footnotes
- See, however, Danso-Coffee v. Ontario, 2010 ONCA 171 at para. 61. I addressed this issue in Wong v. Wires Jolley LLP, 2010 4835 (S.C.J.) at paras. 49-58
- Newfoundland and Labrador Nurses’ Association v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 22