CITATION: Ballantyne v. Toronto Community Housing Corporation, 2015 ONSC 6211
DIVISIONAL COURT FILE NO.: 434/14
TEL-48469-14-RV DATE: 20151006
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
SANDRA DIANA BALLANTYNE
Appellant
(Tenant)
– and –
TORONTO COMMUNITY HOUSING CORPORATION
Respondent
(Landlord)
Gene G. R. Filice, for the Appellant (Tenant)
Daniel J. Del Gobbo, for the Respondent, Toronto Community Housing Corporation
Linda H-C. Chen, for the Intervenor, Landlord and Tenant Board
HEARD at Toronto: October 6, 2015
SACHS J. (ORALLY)
[1] This is an appeal from the August 21, 2014 review order of the Landlord and Tenant Board (“the Board”). We accept that our jurisdiction on this appeal is confined to errors of law: see s.210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). We also accept that the standard of review that is applicable to the Board’s decision when the Board is interpreting and applying its home statute and rules is reasonableness. (First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54).
[2] The question before the Board was whether the initial decision to reject the appellant’s request for an extension of time to file a motion to set aside the ex parte order of the Board issued on May 30, 2014 and amended on June 4, 2014 showed a serious error. Rule 15.6 of the Board’s Rules of Practice explicitly sets out the factors that shall be considered in deciding whether to grant an extension of time under the RTA or its Rules. That Rule reads as follows:
The LTB shall consider the following factors in deciding whether to extend or shorten any time requirement under the RTA or these Rules:
(a) the length of the delay, and the reason for it;
(b) any prejudice a party may experience;
(c) whether any potential prejudice may be remedied;
(d) whether the request is made in good faith; and
(e) any other relevant factors.
[3] Neither the initial decision nor the review decision made reference to or addressed the relevant factors under Rule 15.6. It is clear that on the review the Board considered only one question – namely, was the appellant’s explanation for the delay satisfactory? The Board ultimately concluded that it was not, both because her delay in filing was not due to any disability and because she had access to legal support during the relevant time period.
[4] In failing to consider the other factors that it was required to consider under Rule 15.6 the Board erred in law. The other factors that the Board should have considered included the length of the delay and the prejudice to either party that would be suffered if the request for an extension was or was not granted. In this case there was no suggestion that the request was being made in bad faith.
[5] While the Board did not make a specific finding on this point, there is a real argument that the delay in question was only two days. Specifically, if the ten day time period expired ten days after the date of issue of the amended order, the deadline for filing was Monday, June 16, 2014. The appellant, acting with the assistance of a social worker, filed her motion to extend on June 18, 2014 – two days later.
[6] With respect to prejudice, the medical evidence before the Board was that the appellant is on permanent disability. She is 57 years old and, if the extension is not granted, she will lose the right to remain in her government subsidized rental unit. She testified that she had been homeless for seven years before she moved into the unit in question. On the other hand, the prejudice to the respondent of granting the extension is minimal. The appellant will have a right to a hearing on the merits (as she would have done if she had filed her request within the prescribed ten day time period) and it cannot be argued that the respondent’s ability to present its case on such a hearing would be adversely impacted by virtue of the two day delay.
[7] In our view, if the Board had considered the factors it was required to consider under Rule 15.6, it could not reasonably have come to any conclusion in the circumstances of this case other than to grant the appellant the extension she is requesting.
[8] Pursuant to s.210(4) of the RTA, this Court may “affirm, rescind, amend or replace” the Board’s decision or order. For the reasons given, we are ordering that the Board’s decision of August 21, 2014 be set aside and ordering that the appellant’s request for an extension be granted and that a hearing on her motion to set aside the ex parte order be held. Pending the results of that hearing the ex parte order of eviction is stayed.
SWINTON J.
[9] On behalf of the panel, I have endorsed the Appeal Book, “This appeal is allowed for oral reasons delivered by Sachs J. today. No costs.”
___________________________ SACHS J.
SWINTON J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: October 6, 2015
Date of Release: October 16, 2015
CITATION: Ballantyne v. Toronto Community Housing Corporation, 2015 ONSC 6211
DIVISIONAL COURT FILE NO.: 434/14
TEL-48469-14-RV DATE: 20151006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND
WILTON-SIEGEL JJ.
BETWEEN:
SANDRA DIANA BALLANTYNE
Appellant
(Tenant)
– and –
TORONTO COMMUNITY HOUSING CORPORATION
Respondent
(Landlord)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: October 6, 2015
Date of Release: October 16, 2015