Lecadon v. Gingras, 2014 ONSC 6919

CITATION: Lecadon v. Gingras, 2014 ONSC 6919

COURT FILE NO.: DC-14-119-00

DATE: 2014-11-28

DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lecadon Realty Ventures Limited a.k.a. Donald W. Naylor v. Bruno Gingras and Taslina Mohamed

BEFORE: Daley, J.

COUNSEL: David Alli, for the Applicant

Bruno Gingras and Taslina Mohamed, In-person

HEARD: November 27, 2014

E N D O R S E M E N T

1The appellant in this pending appeal to the Divisional Court, which was filed in Brampton, moves for an order directing the transfer of this appeal to the Divisional Court sitting at Toronto, with the request that the appeal be heard on an expedited basis.

2The appeal is from the decision of the Landlord and Tenant Board dated October 20, 2014, dismissing the appellants’ application to terminate the respondents’ residential tenancy.

3On this motion it is urged on behalf of the appellants that the appeal in this matter must be transferred to Toronto for an early hearing before the Divisional Court as a result of the terminal illness of the appellant Donald W. Naylor (“Naylor”).

4In support of the motion brought pursuant to Rule 13.1 .02 of the Rules of Civil Procedure the appellant has filed evidence of Dr. Jeff Ponke M.D. In his report of September 15, 2014, the doctor indicates that Naylor is his patient and that he has a serious medical condition – cancer in the neck region, for which he is receiving palliative care.

5Also in support of the motion is filed an affidavit of Donald W. Naylor Junior, the son of the appellant, wherein he indicates that his father, who is 83 years of age has incurable terminal cancer and that all radiation and chemotherapy treatments have been terminated and that his father is receiving palliative care.

6The appellants Notice of Appeal from the Landlord and Tenant Board was filed on or about November 13, 2014, to the Divisional Court at Brampton. The next scheduled sittings of the Divisional Court at Brampton is set for the week commencing March 16, 2015.

7While the relief sought in the Notice of Appeal filed is that if the appeal is granted, the respondents residential tenancy be terminated, it was submitted on behalf of the appellants that if the appeal is successful and the court refers this matter back to the Landlord and Tenant Board for a hearing, given Naylor’s health condition, he may not be available to testify at any such hearing.

8The respondents take issue with seriousness Naylor’s health condition, however, the evidence with respect to his health is uncontradicted.

9The respondents further submitted that the hearing of this appeal before the Divisional Court at Toronto would cause them significant inconvenience, however, no evidence was offered in support of this position.

10The respondents, who are self-represented also submitted that the expedited timeline that may be put in place for an early hearing of this appeal would cause unfairness to them.

11In my view the ends of justice require that this appeal be heard on an expedited basis and as such the appeal shall be transferred to the Divisional Court at Toronto to be scheduled so as directed by the Administrative Judge for the Divisional Court at Toronto.

12In reaching this conclusion I have determined that under Rule 13.1.02 (2) (ix) the transfer of the appeal is desirable in the interests of justice having regard to the fact that Naylor is terminally ill and in the event the appeal is successful and the matter is returned to the Landlord and Tenant Board he may not be available to testify unless this matter is considered by the court at an early date.

13As to the respondent submissions that Naylor’s health is not as serious as indicated in the record, the evidence is uncontradicted that his cancer is terminal.

14As noted, as far as resulting inconvenience is concerned, the respondents have offered no evidence in this regard. This appeal is a relatively simple matter and it is expected that the attendance before the court would be on one day only.

15As to the respondents’ submission that the expedited hearing date would be unfair, this appeal is in respect of a question of law. The hearing at the Landlord and Tenant Board was very short and no evidence was called.

16Counsel for the appellant states that his submissions will take approximately 15 minutes. The respondents stated that they would require one hour between them.

17I have concluded that the expedited hearing of this narrowly focused appeal will not give rise to any unfairness to the respondents.

18In the result, it is ordered that a change of venue is granted for the transferring of the hearing of this appeal from the Divisional Court at Brampton to the Divisional Court at Toronto so as to be scheduled for an expedited hearing as directed by the Administrative Judge of the Divisional Court at Toronto.

19Counsel for the appellants may submit to me directly, through the judicial administration office, a draft order in accordance with these reasons for my signature.

20A copy of this endorsement will be sent to the Administrative Judge for the Divisional Court at Toronto.

21As to submissions as to costs, counsel for the appellants shall file costs submissions within 15 days, with submissions on behalf of the respondents within 15 days thereafter. The submissions are to be limited to two pages plus a costs outline.

Daley, J.