Sedyka v. Lopes, 2015 ONSC 1703
CITATION: Sedyka v. Lopes, 2015 ONSC 1703
DIVISIONAL COURT FILE NO.: 310/14
TST-53139-14
DATE: 20150316
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, HARVISON YOUNG AND LEDERER JJ.
BETWEEN:
MARGARET SEDYKA Moving Party (Tenant/Appellant)
– and –
CARLOS LOPES Responding Party (Landlord/Respondent in Appeal)
COUNSEL:
In Person
David S. Strashin, for the Responding Party (Landlord/Respondent in Appeal)
HEARD at Toronto: March 16, 2015
ORAL REASONS FOR JUDGMENT
SWINTON J. (ORALLY)
[1] The moving party, Ms. Sedyka, seeks to vary or set aside the order of Nordheimer J., dated August 25, 2014, in which he quashed her appeal. She submits that she was not properly served with the Notice of Motion to quash her appeal because the motion material was mailed to her and she had no mailbox to receive it. Consequently, she did not appear at the motion.
[2] While we have concerns about whether service was completed, we would nevertheless dismiss the motion to vary because the proposed appeal is moot. The moving party no longer lives in the rental unit, as she was evicted in September 2014. While she seeks damages for what she characterizes as a wrongful eviction, the Divisional Court on an appeal would have no jurisdiction to award such damages. Accordingly, there is no live controversy between the parties. Moreover, there are no special circumstances that would lead us to exercise our discretion to hear this moot appeal.
[3] For these reasons, the motion to vary is dismissed.
COSTS
[4] Ms. Sedyka asks that the costs order of Nordheimer J. be set aside because she did not know about the hearing and was not properly served. However, we are not satisfied that Nordheimer J. erred. He found there were unexplained arrears of rent and quashed the appeal. While Ms. Sedyka says she had no knowledge of the motion to quash, there is a fax in the court file from her to the court staff dated August 22, 2014 that shows she knew about the hearing, whether or not properly served and she did not appear.
[5] While we would not vary Nordheimer J.’s costs order, we would not award costs of the present motion to vary, given our concerns about service in the motion to quash.
[6] I have endorsed the Motion Record, “This motion is dismissed for oral reasons delivered in Court today. No costs.”
SWINTON J.
HARVISON YOUNG J.
LEDERER J.
Date of Reasons for Judgment: March 16, 2015
Date of Release: March 19, 2015
CITATION: Sedyka v. Lopes, 2015 ONSC 1703
DIVISIONAL COURT FILE NO.: 310/14
TST-53139-14
DATE: 20150316
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, HARVISON YOUNG AND LEDERER JJ.
BETWEEN:
MARGARET SEDYKA Moving Party (Tenant/Appellant)
– and –
CARLOS LOPES Responding Party (Landlord/Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 16, 2015
Date of Release: March 19, 2015