King-Winton v. Doverhold Investments Ltd., 2016 ONSC 1109

Superior Court of Justice – Ontario

Divisional Court

CITATION: King-Winton v. Doverhold Investments Ltd., 2016 ONSC 1109

COURT FILE NO.: 546/15

DATE: 20160216

RE: KATHRYN KING-WINTON, Tenant/Appellant

AND: DOVERHOLD INVESTMENTS LTD., Landlord/Respondent

BEFORE: H. Sachs J.

COUNSEL: Kathryn King-Winton, on her own behalf Spencer Toole, for the Landlord/Respondent

HEARD at Toronto: February 11, 2016

ENDORSEMENT

1This is a motion by the Tenant for an order setting aside the Registrar’s Order dismissing her appeal for failure to file a transcript within the prescribed period of time.

2The Landlord opposes the motion on only one ground – namely, that the appeal has no merit and, therefore, the justice of the case demands that the motion be refused. In other words, the Landlord accepts that there is an acceptable explanation for the delay (which was not lengthy), that the motion to set aside was brought promptly and the Landlord will not be prejudiced if the Registrar’s order is set aside.

3The following is the history surrounding this appeal. On January 23, 2015, after a hearing at which a number of witnesses testified, the Board ordered the Tenant, among other things, to pay the sum of $956.25 by way of costs for the repairing/replacing of damaged property and $170.00 by way of costs for filing the application. The order also provided that if these sums were not paid by March 15, 2015, the Landlord could apply without notice for an order terminating the tenancy and evicting the Tenant.

4On February 23, 2015, the Tenant requested a review of the January 23, 2015 order. That request was granted and, on February 25, 2015, an order was issued staying the January 23, 2015 order.

5On April 8, 2015, after the stay order was put in place, the Board issued an order terminating the tenancy on the basis that the monies provided for in the January 23, 2015 order had not been paid. The Tenant brought an application to set aside the April 8, 2015 order.

6The Review hearing was held on August 20, 2015. During the course of the review, the Board addressed the Tenant’s request to set aside the April 8, 2015 order as follows:

…but the Board should not have issued an order because there was a stay on the order…so we can’t say there was a breach of…an order that’s been stayed. So on this application I have no choice but to say the tenant’s motion to set aside the order would be allowed, based on the fact that I’m going to look at the L4 application. The Board should never have issued this order.

7On August 20, 2015, the Tenant indicated that she had not yet paid the amounts that she had been ordered to pay pursuant to the January 23, 2015 order.. During the course of the hearing on August 20, 2015, the Board stated: “In reality there was a breach by not paying the money, but the tenant was correct in her assessment of saying, ‘I shouldn’t have had to pay it, because it was stayed.’ She’s 100 per cent right.”

8On September 22, 2015, the Board issued its decisions arising out of the August 20, 2015 hearing. First, it dismissed the Tenant’s request for a review and ordered that the January 23, 2015 order stand. Second, it cancelled the February 25, 2015 order staying the January 23, 2015 order. Third, it determined that the Tenant had breached the January 23, 2015 order. In doing so, it stated:

Determinations:

1. The Tenant breached the terms of the order. She believed that she didn’t have to make the required payments as there was a review in place that stayed the order. The Tenant should have made the payment and if the request for a review was permitted than (sic) the amount would have been credited to the Tenant in the review order.

9After making this determination, the Board denied the Tenant’s request to set aside the April 8, 2015 order terminating her tenancy. Thus, the Landlord is now in a position to terminate the Tenant’s tenancy.

10In my view, this series of events raises a question of law – namely, did the Board err in law in terminating a tenancy based on a breach of an order that had been stayed and on the basis of a termination order that may have been made in error?

11I pause here to note that the Tenant has paid the amounts that she was ordered to pay under the January 23, 2015 order.

12In her Notice of Appeal, the Tenant, at paragraph 2, states: “The adjudicator erred in law by not allowing King-Winton an opportunity to amend or fulfill the first conditions of the court and pay the damages and costs to avoid eviction.” Thus, while not articulated in the fashion that a person with legal expertise would articulate the issue, the Notice of Appeal squarely raises the issue that I find does have merit and makes necessary to achieve justice in this case to set aside the Registrar’s order and allow the appeal to proceed.

13For these reasons, an order will go setting aside the Registrar’s order dismissing this appeal. The eviction order will continue to be stayed pending the disposition of this appeal. The Tenant will have 30 days to perfect her appeal. The Tenant is entitled to costs representing her assessable disbursements in pursuing her motion (e.g., filing fee, photocopying costs). She is also entitled to be reimbursed for any HST payable on those amounts. If the parties cannot agree on these amounts, I may be addressed in writing. As the Tenant was self-represented and is unemployed, she is not entitled to any amounts by way of “fees”.