Citation: Weidenfeld v. Tallat, 2015 ONSC 2960

Divisional Court File No. 13/631

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N

ROBERT WEIDENFELD Appellant

• and –

AMI TALLAT AND THE LANDLORD AND TENANT BOARD Respondents

PRESIDING JUSTICES THE HONOURABLE JUSTICE CORBETT THE HONOURABLE JUSTICE HARVISON YOUNG THE HONOURABLE JUSTICE O'MARRA

AT THE DURHAM REGION COURTHOUSE, 150 BOND ST. E., OSHAWA, ONTARIO, ON MONDAY, MARCH 2, 2015

REASONS FOR JUDGMENT

APPEARANCES: R. Weidenfeld Personally B. Blumenthal Counsel for the Respondents

MONDAY, MARCH 2, 2015

Neutral Case Citation Number

REASONS FOR JUDGMENT

CORBETT, J. (Orally)

We do not find it necessary to hear from the Board. Our decision is as follows.

The Applicant leased an apartment at 35 Huron Heights Drive in Newmarket in 2008. He began to withhold rent starting June 1, 2013, on the basis of grievances he alleged in respect to his tenancy.

The landlord applied to the Landlord and Tennant Board to terminate the tenancy for non-payment of rent.

On December 2, 2013, the Board Member made an interim order for payment of rent. The Applicant sought judicial review of this interim order. That Application for Judicial review had the effect of staying the interim order.

The Board Member then adjourned the hearing of board proceedings pending review of the interim order.

The Landlord did not want to wait for a Board hearing until after judicial review of the interim order and so the Landlord withdrew her original proceeding before the Landlord and Tenant Board. She started a fresh proceeding in March 2014.

The Board rendered its decision in the second proceeding on July 11, 2014. In the Board’s final order, it terminated the tenancy and fixed all arrears to the date of termination and directed the tenant to pay them.

The Applicant sought judicial review of the Board’s final order. On November 10, 2014, Justice Healey quashed that application because it was plain and obvious the application could not succeed. On December 27, 2014, the Applicant sought an order setting aside the Sheriff’s notice to vacate and an order extending the time to vacate pending an appeal of the order of Justice Healey. That motion was dismissed. An appeal from Justice Healey’s order is pending.

The Applicant now wishes to pursue his original judicial review of the interim order of the Board in the first abandoned proceeding. We declined to do so for two reasons. First, this appeal is moot. The interim order ceased to have effect when the Landlord abandoned its first application to the Landlord and Tenant Board.

The final order in the second proceeding fixes all arrears, including arrears from the rental periods covered by the interim order. Thus, there is no continuing dispute between the parties to adjudicate subject, of course, to the appeal from Justice Healey’s order.

The Applicant argues in paragraph 55 of his factum that the process followed by the Board in connection with the interim order was so deeply flawed that this Court should decide this application to give direction to the Board so that a similarly flawed process does not befall others before the LTB in the future.

There is a residual discretion, exercised very rarely, to hear and decide a case that is moot. As paraphrased by DiTomaso, J. in the case of Stewart vs. Office of the Independent Police Review Director, 2013 ONSC 7907, and as stated by this court in Minto Furnished Suites vs. Hontzager, 2010 ONSC 5129 at paragraph five;

“Where mootness is raised, the Court is required to undertake a two step analysis. The first step involves a determination of whether the dispute between the parties has disappeared and the issues have therefore become academic. If the answer is in the affirmative, the Court will then determine if it should exercise its discretion to hear the case. See Borowski vs. Canada, Attorney General 1989 123 (SCC), 1989 1 S.C.R. 342 at paragraph 16.”

This is not a case like Borowski where the issue would almost always be rendered moot by the effluction of time. Processes before the Landlord and Tenant Board are reviewed before this court frequently and any due process issues that arise regularly before the Board can, and will, make their way to this Court in due course in a case that is not moot. This is not one of those rare cases where we will hear and decide this application even though it is moot.

The Application is dismissed.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Deborah Tinmouth, certify that this document is a true and accurate transcript of the recordings of Weidenfeld vs. Talaat et al in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2812-201-20150302-, which has been certified in Form 1.

April 7, 2015 ”electronic signature of “DET”__

Deborah Tinmouth, C.C.R.