CITATION: Gebrahana v. Bigdeli, 2015 ONSC 7853
DIVISIONAL COURT FILE NO.: 237/15
Landlord and Tenant Board No.: TNT-64667-14 DATE: 20151214
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, WILTON-SIEGEL AND MULLIGAN JJ.
BETWEEN:
GIRMA GEBRAHANA
Tenant
Respondent on Appeal
– and –
SHIRALI KIANIAN BIGDELI
Landlord
Appellant on Appeal
Andrew Moeser, for the Tenant, Respondent on Appeal
Jaclyn C. McNamara, for the Landlord, Appellant on Appeal
Brian A. Blumenthal, for the Landlord and Tenant Board
HEARD at Toronto: December 14, 2015
SACHS J. (ORALLY)
[1] This is an appeal from the order of the Landlord and Tenant Board (“the Board”) dated April 27, 2015, which refused to grant the appellant an extension of time to request a review of the Board’s order dated January 27, 2015.
[2] The facts surrounding this appeal can be briefly summarized as follows. In a prior related application before the Board, the appellant landlord brought an application using a paralegal and obtained an order evicting the respondent from the rooming house where he had lived for four years. This order was obtained and the eviction was carried out without notice to the respondent. The respondent brought a tenant application before the Board seeking compensation for property lost as a result of his eviction and rent abatement for a portion of the month for which he was excluded from the premises despite having paid rent.
[3] The tenant application and the notice of hearing was served on the appellant’s legal representative, a paralegal, but neither the appellant nor his legal representative attended the hearing of the tenant application.
[4] In the January 27, 2015 order, the Board found that the materials in the tenant application were properly served and that the respondent was entitled to $10,199.40 for lost property and rent abatement resulting from the eviction.
[5] The January 27, 2015order was also sent to the appellant’s representative. Three months later the appellant requested a review of the January 27 order. The appellant was required to file a request for an extension of time because the review was sought more than two months after the deadline under the Board’s Rules of Practice (“the Rules”).
[6] The request to extend was filed on behalf of the appellant by his legal representative. In its April 27 order the Board rejected the request to extend the deadline to request a review. It did so for two reasons. It found that there was no reasonable explanation for the delay in filing the request for review after the Board issued its January order and it found that granting the request would prejudice the respondent.
[7] On this appeal the appellant made the following submissions:
(i) The April 27 order violated the appellant’s right to natural justice as the appellant had no real notice of the hearing and was therefore unable to present his case.
(ii) The Board misinterpreted its own rule when it found that service on the appellant’s legal representative was proper service.
[8] In this case, the Board issued supplementary reasons for its decision after the Notice of Appeal was filed. The appellant argued that this Court should ignore those reasons in its consideration of this appeal. Rule 26.5 of the Board’s Rules contemplate the issuance of supplementary reasons. Further, there is nothing in the supplementary reasons in this case to indicate that they were issued as an ex post facto justification for the decision that was being appealed. The reasons simply expand upon the reasons given earlier. This practice of issuing supplementary reasons must be understood in context. The Board heard 81,748 applications in the year from April 1, 2013 to March 31, 2014.
[9] Rule 5.1 of the Board’s Rules of Practice allows for service on the legal representative of a party. The appellant takes the position before us that the January order was not served on its legal representative, but on his former legal representative. This position directly contradicts the appellant’s request for an extension that was filed on April 27, 2015.
[10] The materials provided by the appellant in respect of its request for an extension of time acknowledged that the application and the notice of hearing were sent to “the address of my legal representative (emphasis added).”
[11] The appellant does not deny that such service was made or that “someone signed the mail”. He says only that the paralegal was never made aware of the application. The appellant did not, however, provide any affidavit from the paralegal addressing the circumstances under which it is alleged that he did not receive these documents. Nor is there any evidence that the documentation filed by the appellant in his previous related application with the Board provided any address for the appellant other than the address of his legal representative. We also note that there is no requirement for express acceptance under the Board’s Rules.
[12] Given the foregoing evidence, the Board could reasonably conclude that the application, the notice of hearing and the Board’s order dated January 27, 2015 were served both at the appellant’s last known address and at the address of his legal representative and, therefore, that this documentation was properly served in accordance with Rule 5.1 of the Board’s Rules.
[13] Given this finding, it cannot be said that the appellant was denied natural justice because he had no notice of the hearing or the Board’s order. He was given proper notice in accordance with the Board’s Rules and in the Board’s view, provided no satisfactory explanation as to why, having been given that notice, he did not move for a review within the applicable time period.
[14] In this regard, it is important to note again that the appellant filed no evidence from the paralegal.
[15] Given this and given the Board’s finding of prejudice (to which deference is owed), the Board’s conclusion that the requested extension should not be granted was a reasonable one.
[16] For these reasons the appeal is dismissed.
COSTS
[17] I have endorsed the Appeal Book, “For reasons given orally by Sachs J., this appeal is dismissed. The respondent is entitled to its costs of this appeal, which he requests be fixed in the amount of $3,500 all inclusive. The appellant acknowledged that, if successful, he would have requested a slightly higher amount. We find the respondent’s request for costs to be a reasonable one that is proportional to the amount in dispute and fix those costs, as requested, in the amount of $3,500, all inclusive.”
___________________________ SACHS J.
WILTON-SIEGEL J.
MULLIGAN J.
Date of Reasons for Judgment: December 14, 2015
Date of Request: December 17, 2015
CITATION: Gebrahana v. Bigdeli, 2015 ONSC 7853
DIVISIONAL COURT FILE NO.: 237/15
Landlord and Tenant Board No.: TNT-64667-14 DATE: 20151214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, WILTON-SIEGEL AND
MULLIGAN JJ.
BETWEEN:
GIRMA GEBRAHANA
Tenant
Respondent on Appeal
– and –
SHIRALI KIANIAN BIGDELI
Landlord
Appellant on Appeal
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: December 14, 2015
Date of Request: December 17, 2015