Sinn v. Main, McGee, 2015 ONSC 6749

CITATION: Sinn v. Main, McGee, 2015 ONSC 6749

DIVISIONAL COURT FILE NO.: 316/13

TEL-05862-10-RV3 DATE: 20151030

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MOLLOY, LINHARES DE SOUSA AND WILTON-SIEGEL JJ.

BETWEEN:

PATRICK SINN

Landlord/Appellant

– and –

PAULINE MAIN and DARRELL MCGEE

Tenant/Respondent

Glenroy Bastien, for the Landlord/Appellant

Jordan N. Potasky, for the Tenant/ Respondent

HEARD at Toronto: October 30, 2015

MOLLOY J. (ORALLY)

Introduction

1The landlord, Patrick Sinn, seeks a review by a full panel of the Divisional Court from the decision of Nordheimer J. dated October 6, 2014, refusing to set aside the Registrar’s Order dismissing Mr. Sinn’s appeal from two decisions of the Landlord and Tenant Board dated May 15, 2013 and May 29, 2013.

2Mr. Sinn submits that he did not have a fair hearing before Nordheimer J. because he had not been properly served with the Tenant’s material responding to his motion and did not receive it until after his motion had been dismissed. He subsequently learned that the respondent’s material was before the motion judge and was considered by him. Mr. Sinn argues that because he did not know the motion judge had this material he was not adequately prepared and could not make full answer to the argument on the motion.

3Because Mr. Sinn was not represented by counsel on that motion, we allowed his counsel on the motion before us to make all of the arguments he would have made on the motion before Nordheimer J. had he been properly served with the tenant’s material. Having heard those submissions and considered that evidence, we see no basis to interfere with the decision of the motion judge.

Analysis

4The motion judge held that Mr. Sinn had failed to adequately explain the delay of over one year in perfecting his appeal. Although the motion judge accepted Mr. Sinn had some health issues, he noted there was no supporting evidence for this before him and in any event it did not explain the length of the delay. This aspect of the motion judge’s decision is not affected by any material filed by the tenant. Further, Mr. Sinn has not filed any further evidence before us, in particular no medical reports supporting his position. We agree with the motion judge’s determination that there has not been an adequate explanation for the delay.

5The motion judge also held that he saw no merit in the appeal. He held as follows:

Further I do not see any merit in this appeal. The issue about who was or was not a tenant was before the Board for determination. Mr. Sinn was in attendance. When his request for an adjournment was denied, he left the hearing and the matter was dealt with in his absence. In those circumstances I cannot see any appeal court setting aside the Board’s decision just because now Mr. Sinn wants to participate. In considering all of this I note that the underlying events in this matter date back to 2010.

Fresh Evidence

6On the argument of the appeal before us, Mr. Sinn filed a Supplementary Affidavit in which he set out fresh evidence relating to the merits of his assertion that Ms. Main was a tenant in the unit right from the start.

7This is documentary evidence that came from Mr. Sinn’s own possession from a file he found in his storage locker. Although he has stated that he believed he had thrown away all his files when he sold the building in 2011, clearly he did not do so. Further, if he had been diligent and searched his own files at the time of the landlord and tenant proceeding, this material would undoubtedly have been discovered.

8While I appreciate that Mr. Sinn may have only recently found this material, the fact remains that it was discoverable at the time of the proceedings before the Landlord and Tenant Board. The fact that the evidence was available and discoverable at the time is fatal to his request to now introduce it many years later at the appeal level. The fresh evidence is not admissible. Mr. Sinn failed to properly prepare for the Landlord and Tenant Board proceedings and then chose to absent himself rather than participate in the hearing. He did so at his own peril.

Adjournment Request

9Mr. Sinn now argues that the Landlord and Tenant Board unfairly refused his adjournment request. He said he had been requesting production of the landlord and tenant file for some time and had been unable to obtain it so that he could prepare.

10The Decision of the Landlord and Tenant Board Member shows that in fact Mr. Sinn was given the landlord and tenant file on the day of the hearing and a twenty minute adjournment was taken so that he could review it. Mr. Sinn now argues that twenty minutes was not sufficient time to familiarize himself with the file.

11There is nothing in the Record before us to indicate that this objection was made to the Landlord and Tenant Board at the time. According to the Reasons of the Board Member and the Review Order, Mr. Sinn sought an adjournment so that he could retain counsel, having already dismissed counsel that very morning and indicating he would proceed to represent himself.

12I also note that there was no indication that Mr. Sinn made any inquiries of his counsel to obtain documents that would have been in his file.

13Based on all of this, and taking into account the fresh arguments made before us, we nevertheless come to the same conclusion on the merits of the appeal as did Nordheimer J. It has no chance of success.

14There was evidence before the Landlord and Tenant Board from which it could make the decision it did as to when Ms. Main became a tenant. Mr. Sinn had the chance to participate in the hearing but chose not to. There is no merit to his appeal.

Conclusion

15Accordingly, this motion is dismissed.

COSTS

Costs

16I have endorsed the Motion Record, “For oral reasons delivered today, this motion is dismissed. Costs have been dealt with between the parties on consent.”

___________________________ MOLLOY J.