CITATION: Ashford v. Johnson, 2014 ONSC 5825
DIVISIONAL COURT FILE NO.: 41/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. GORDON R.S.J., SWINTON AND HORKINS JJ.
BETWEEN:
eMMETT aSHFORD and kRIS bROWN
Appellants
(Tenants)
– and –
Deelia Johnson
Respondent
(Landlord)
A. Boudreau, for the Appellants (Tenants)
J. Schmidt, for the Respondent (Landlord)
L. Chen, for the Landlord and Tenant Board
HEARD at Toronto: October 6, 2014
Background
1On September 3, 2013 the appellants brought an application pursuant to s. 57(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the RTA”), alleging that the respondent landlord had given them a notice of termination of their tenancy in bad faith. Pursuant to s. 57(2), no such application can be made more than one year after the former tenant vacated the rental unit. The appellants had vacated their unit on August 31, 2012. The one year anniversary date fell during the Labour Day weekend, and the appellants filed their application on the first business day after the weekend.
2The appellant tenants appeal from an order and review order of the Landlord and Tenant Board (“the Board”) that dismissed their application as untimely.
The Standard of Review
3An appeal lies to this Court only on a question of law, pursuant to s. 210(1) of the RTA.
4Although the appellants argue that the standard of review is correctness, I agree with the submissions of the Board that the standard of review is reasonableness, as the Board was applying time limit provisions found in its home statute (First Ontario Realty Corporation v. Deng, 2011 ONCA 54 at para. 21; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC 6 at para. 30).
5I note that the Supreme Court of Canada applied a standard of reasonableness in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at paras. 28-33, a case dealing with a limitation period in the British Columbia securities legislation.
The Legislative Framework
6Section 190 of the RTA deals with the Board’s power to extend and shorten time requirements for the making of an application. Pursuant to s. 190(1), the Board may expressly extend or shorten the time for filing three types of applications (ss. 126, 159(2) and 226). Pursuant to s. 190(2), the Board may extend or shorten time requirements other than those prescribed in the regulations. Section 56 of O. Reg. 516/06 restricts the Board from extending or shortening time requirements in a number of situations set out in the provision, including in paragraph 2, deadlines for filing applications (other than those permitted in s. 190(2) of the RTA).
7Section 193 of the Act states that “time shall be computed in accordance with the Rules”. Rule 4.3 of the Board’s Rules of Practice provides that if the time limit for filing a notice or document falls on a non-business day, the notice or document may be filed on the next business day.
8The Legislation Act, 2006, S.O. 2006, c. 21, Sch. F (“the LA”) provides in s. 46 that every provision of this Part [“Interpretation”] applies to every Act or regulation. Section 47 provides that s. 46 applies unless a contrary intention appears, or its application would give a term a meaning that is inconsistent with the context.
9Section 89(1) provides that time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday. Subsection 89(2) provides that time limits for filing documents that expire on a day when business offices are closed are extended to the next day when the office is open during regular hours of business.
The Board Decision
10In the reasons given for the review order, the Board held that s. 57(2) of the RTA provides a limitation period for the filing of a bad faith application, and the Board has no power to extend or shorten the period, given s. 56(2) of O. Reg. 516/06.
11The Board held that s. 193 of the Act was not meant to apply to limitation periods. As well, Rule 4 of the Board’s Rules applies to motions, but does not apply to applications that are not covered by s. 190(1) of the Act.
12The Board also held that the provisions in s. 89 of the Legislation Act relating to the computation of time did not apply because s. 57(2) clearly barred any application after the limitation period expired. The application of the computation of time provision in the LA would give s. 57(2) a meaning inconsistent with the context.
Analysis
13In my view, the Board’s conclusion that the appellants’ application was untimely was based on an unreasonable interpretation of the RTA and the LA. In the words of Dunsmuir at para. 47, the result does not fall within a “range of possible, acceptable outcomes.”
14When one looks at the wording of s. 190 of the RTA and s. 56 of the regulation, it is clear that the Legislature meant to restrict the discretion of the Board to extend or shorten time periods for filing applications, except with respect to the kinds of proceedings listed in s. 190(1).
15However, the Board, in the present application, was not being asked to exercise its discretion to extend a time period for filing an application. Rather, the Board was being asked to compute the time for the running of the limitation period found in s. 57(2) of the RTA. Section 193 of the RTA expressly states that time is to be computed in accordance with the Board’s Rules. Rule 4.3 makes it clear that if the time limit for filing a notice or document falls on a non-business day, as it did here, the notice or document can be filed on the next business day.
16The Board was of the view that an application under s. 57(1) is not a notice or document, and only a motion would fall within those terms. I see no reason for this narrow interpretation of the term “document” in Rule 4.3. Indeed, it is inconsistent with the Board’s interpretation of “documents” in Rule 6, which deals with the filing of documents. In the explanation of that rule, the Board refers to filing an application, thus indicating that an application is a “document”.
17Moreover, the Board’s interpretation of the RTA and the regulation leads to an unreasonable result. The effect of its interpretation of s. 57(2) is to shorten the limitation period for tenants like the appellants because the anniversary date of their departure from the rental unit falls on a non-business day. According to the Board’s interpretation, the tenants would have to file an application before the one year period expired, effectively shortening the limitation period. Yet the Board held that it had no discretion to extend or shorten time periods because of the interaction of s. 190 and the regulation.
18The Board also gave an unreasonable interpretation to s. 47 of the Legislation Act. The Board was of the view that the application of s. 89 of the LA (which would have permitted the appellants to file the application) would give a meaning to s. 57(2) of the RTA that is inconsistent with its context. Again, the Board’s conclusion was based on a misconception that such an interpretation would be inconsistent with s. 190, because the Board would be extending the time for the filing of the application. Rather, s. 89 is dealing with the computation of time, not an exercise of discretion to extend time, and there is no contrary intention in the RTA that would prevent the application of s. 89 of the LA.
19In fact, the application of the computation of time provisions in s. 89 of the LA is fully compatible with the provisions of the RTA. The section deals with the computation of time in the same manner as Rule 4 of the Board’s Rules.
20Moreover, both s. 89 and Rule 4 provide an easily understood way for parties to determine when a limitation period has expired in circumstances where a time limit would otherwise expire on a holiday or a day when business offices are closed.
Conclusion
21The Board’s interpretation of the time provisions of the RTA and the LA was not reasonable. Therefore, the appeal is allowed and the Board’s orders are set aside. The appellants’ application is remitted to the Board for a hearing on the merits of the application.
22The appellants sought costs against the respondent landlord. The landlord did not file materials on this appeal nor did it make submissions on the merits, although counsel for the landlord appeared to argue against any award of costs against her.
23Unfortunately for the appellants, this appeal was necessary in order to set aside the decisions of the Board. They incurred costs that were caused by a legal error made by the Board in relation to an issue which the Board raised on its own initiative. While the amount of costs they seek is fair, it is not reasonable to order the landlord to pay them, as the landlord took no steps to oppose the appeal. Accordingly, there will be no order of costs.
Swinton J.
R. Gordon R.S.J.
Horkins J.
Released: October 8, 2014
CITATION: Ashford v. Johnson, 2014 ONSC 5825
DIVISIONAL COURT FILE NO.: 41/14
DATE: 20141008
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. GORDON R.S.J., SWINTON AND HORKINS JJ.
BETWEEN:
eMMETT aSHFORD and kRIS bROWN
Appellants
(Tenants)
– and –
Deelia Johnson
Respondent
(Landlord)
ENDORSEMENT
Swinton J.
Released: October 8, 2014