CITATION: Sivakova v. Timbercreek Asset Management Inc., 2016 ONSC 3975
DIVISIONAL COURT FILE NO.: 468/15
LBT FILE NO.: TNL-72999-15
DATE: 20160615
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
NATALIA SIVAKOVA
Appellant
(Tenant)
– and –
TIMBERCREEK ASSET MANAGEMENT INC. (PROPERTY MANAGEMENT)
Respondent
(Landlord)
Natalia Sivakova
in person
Martin P. Zarnett
for the Respondent (Landlord)
HEARD at Toronto: April 29, 2016
THEN J.:
[1] The appellant (tenant) moves before this court for an order extending the time for a period of six months in order to perfect her motion for leave to appeal the order of Chapnik J. made on June 10, 2015. She also concurrently moves before this court for an order extending the time to perfect her appeal from the order of the Landlord and Tenant Board (TNL-72999-15) made on September 16, 2015, for a period of six months. She seeks a further order consolidating both the appeal from the order of the Board and the prospective appeal from the order of Chapnik J. Finally, she seeks an order for case management of both proceedings before the court.
the facts
(a) The order of Chapnik J.
[2] The appellant is a tenant of the respondent. On July 21, 2014, she issued a notice of application in the Superior Court seeking a determination that the respondent had breached its obligations under the Residential Tenancies Act to repair and maintain the rental unit.
[3] The appellant failed to appear in Civil Practice Court on December 17, 2014 to set a timetable for the application. Himel J. struck the application from the list and ordered costs against the appellant in the amount of $500.
[4] The respondent brought a motion to convert the application into an action before Whitaker J. on February 10, 2015. The appellant failed to attend. Whitaker J. ordered that the application be converted into an action and that the appellant deliver a statement of claim within 20 days.
[5] The appellant did not appeal the order of Whitaker J. When no statement of claim was delivered and no costs were paid the respondent brought a motion before Chapnik J. to dismiss the action and alternatively for security for costs.
[6] The appellant brought a cross-motion seeking orders dismissing the respondent’s motion, setting aside the two procedural orders of Himel J. and Whitaker J. and costs.
[7] In her reasons for judgment Chapnik J. observed that in the initial application the appellant sought orders clearly within the exclusive jurisdiction of the Landlord and Tenant Board pursuant to the Residential Tenancies Act. She also observed that when the respondent brought its motion to have the application converted into an action she intentionally failed to appear as she maintained her entitlement to bring her matter before the court by means of a long motion.
[8] Chapnik J. held that the best way to deal with the matter was as follows:
An Order shall issue that the applicant/plaintiff deliver a Statement of Claim in this action within 15 days. In default the respondent/defendant may bring a motion to dismiss the action with costs.
There will be no Order for security for costs at this time without prejudice to the Respondent to bring this request at a further date.
The costs Orders made by Justices Himel and Whitaker shall be stayed until further Order of this Court.
The cross-motion of the applicant to set aside the above Orders is dismissed, save and except the staying of the cost Orders pursuant to Paragraph 3 above, that is the Order to strike the application from the list and to convert the application to an action will remain in force.
The cross-motion to restore the application proceeding is dismissed.
[9] On September 29, 2015, the tenant/appellant brought a motion before Sanderson J. seeking an order to extend the time to perfect her motion for leave to appeal the order of Chapnik J. made June 10, 2015, as that order is an interlocutory order requiring leave to appeal. The appellant sought an extension of time of six months.
[10] Sanderson J. observed that the appellant had suffered much misfortune as a result of the suicide of her son and granted her a further extension of time of 20 days to perfect her motion for leave to appeal the order of Chapnik J. Sanderson J. held that the requested extension of six months was overly prejudicial to the respondent.
[11] To date the appellant/tenant has not taken any steps to perfect the requisite leave to appeal.
(b) Order of The Landlord and Tenant Board
[12] On September 16, 2015, the respondent applied to the Landlord and Tenant Board to terminate the tenancy and evict the appellant/tenant for non-payment of rent.
[13] At the Board the tenant submitted that the Board did not have jurisdiction to evict her because of litigation between the parties in Superior Court wherein the tenant sought compensation from the respondent with respect to a defective unit, breach of contract and personal injury. The Board held that the Board had jurisdiction to proceed with both the landlord’s application and with her claims but given the choice made by the tenant to pursue her claims in Superior Court, the Board proceeded only with the landlord’s application and determined to evict her for non-payment of rent subject to her paying the full amount of rent on or before September 30, 2015.
[14] The appellant filed a notice of appeal with respect to the order of the Board but failed to pay the arrears of rent and costs or to perfect the appeal. On January 11, 2016, the respondent sought an order before Stewart J. lifting the automatic stay of the order of the Board and sought to enforce the order forthwith. Alternatively, the respondent sought an order requiring the payment of all arrears of rent and the rent going forward from January 1, 2016 until the appeal is heard.
[15] Stewart J. acceded to the appellant/tenant’s submission that all rent moneys be paid into court and made the following order with no order as to costs:
(a) The appellant shall pay the sum of $3741.67 into Court, a sum reflecting the Order of the Landlord and Tenant Board under appeal, by no later than January 31, 2016;
(b) The appellant shall pay the additional sum of $5292.68 into Court on account of arrears of rent by no later than February 12, 2016;
(c) Commencing February 29, 2016 and at the end of each month thereafter, the appellant shall pay the sum of $1316.69 into Court pending the hearing of this appeal;
(d) The appellant shall perfect this appeal by no later than March 31, 2016.
(e) If the appellant fails to comply with any of the requirements of this order, the Respondent may move without notice before the Registrar and, upon affidavit evidence of non-compliance, the Registrar shall dismiss the appeal and lift the stay and the Order of the Landlord and Tenant Board shall thereby be restored. Any and all sums paid into Court by the appellant shall be paid to the Respondent;
(f) Approval of this Order as to form and content by the appellant is hereby dispensed with.
[16] While the appellant/tenant has complied with the order insofar as arrears and ongoing rent has been paid into court, no steps have been taken by the appellant to perfect the appeal of the Board’s order.
position of the parties
[17] The appellant/tenant submits that a further extension of time of six months to perfect the appeal from the decision of the Board and to perfect the motion for leave to appeal is warranted for several reasons. The appellant submits that her ability to deal with her appeals has been compromised by the continuing psychological emotional impact of her son’s death as well as by the distraction of dealing with coroners’ reports and medical litigation without the benefit of counsel because of financial pressures and physical disability. The appellant submits that the extensions of time granted by Sanderson J. and Stewart J. were inadequate in the circumstances.
[18] She further submits that an order consolidating the two streams of appeal coupled with case management will expedite the process and is in the interest of justice as there is at present a factual vacuum with respect to the appeal from the order of the Board.
[19] The respondent landlord submits that the appellant has failed to comply with orders of Chapnik J., Sanderson J. and Stewart J., all of whom have granted the appellant extensions of time to perfect her appeal and to seek leave to appeal. The respondent submits that the current round of motions is simply a device to delay the progress of the action in circumstances where the time spent in preparing these motions could have been spent in perfecting her appeal and leave to appeal. The respondent submits that this court exercise its jurisdiction under s.134 of the Courts of Justice Act to dismiss the appellant’s requests for a further extension of time as any further relief beyond that granted by Sanderson J. and Stewart J. will operate to the prejudice of the respondent.
decision
[20] The granting of an extension of the time requirements under the rules is a matter of discretion to be exercised in the interests of justice. (See: Rule 2.03; Wellwood v. Ontario (Provincial Police) 2010 ONCA 386 at para. 34).
[21] The factors to be considered are as follows:
(i) the length of the delay and the explanation of the delay
(ii) prejudice to the respondent
(iii) the merits of the appeal
(iv) whether the justice of the case requires it.
(See: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.) at para. 16)
(i) The Length of the Delay and the Explanation of the Delay
[22] The appellant/tenant commenced her litigation relating to the lack of repair and maintenance of her premises by way of application on July 21, 2014. The application was converted into an action by Whitaker J. on February 10, 2015. The appellant deliberately chose not to appear or to appeal this decision. The decision of Chapnik J., for which a date for leave to appeal has yet to be sought, was released on June 10, 2015. On October 29, 2015, Sanderson J. extended the time to perfect her leave to appeal by 20 days, although the appellant had sought an extension of six months.
[23] In so far as the appeal from the decision of the Board is concerned that decision was rendered on September 16, 2015. On January 12, 2016, Stewart J. extended the time to perfect the appeal to no later than March 31, 2016.
[24] It will be evident from the above timelines that considerable delay has already occurred. It is also evident that both Sanderson J. and Stewart J. have already indulged the appellant with an extension of time with respect to the perfection of the leave to appeal and the appeal from the Board respectively. These extensions of time were granted primarily because the judges acknowledged the difficult circumstances of the appellant as a result of her son’s death.
[25] The appellant explains the continuing delay in terms of the continuing psychological impact of her son’s death, the distraction occasioned by her awaiting certain coroners’ reports, relevant to her son’s death, by her involvement in medical litigation relating to her son’s death and by the fact that she is self-represented, physically disabled and under financial stress. While Sanderson J. and Stewart J. acknowledged the unfortunate circumstances that contributed to the delay I am not satisfied that they gave sufficient weight to those circumstances when granting a relatively short extension of time to perfect the leave to appeal of Chapnik J.’s order and the appeal of the Board’s order. I acknowledge that there must be some finality to the proceeding and that the striking of the appropriate balance between fairness to the tenant and prejudice to the landlord is often a difficult task. I am nevertheless persuaded that a longer extension of time was necessary to effect the appropriate balance in the circumstances of this case. On the other hand, with the passage of time of almost two years since this litigation began, the matters which contributed to the delay to this point can no longer constitute an excuse for any further failure to perfect the leave to appeal of the order of Chapnik J. or to perfect the appeal of the order of the Board if a further and final extension is granted.
(ii) Prejudice to the Respondent
[26] The respondent submits that it has been prejudiced by the lack of finality respecting the perfection of the leave to appeal of the order of Chapnik J. as well as the appeal of the order the Board. In so far as the leave to appeal is concerned, no costs orders have been paid by the appellant nor have costs been awarded against the appellant with respect to some of the motions that have been brought. Thus, the respondent has been put to unnecessary expense which is not proportionate to the amounts in issue. With respect to the appeal from the order of the Board the respondent concedes that rent is not in arrears and continues to be paid on a timely basis. However, because of the inordinate delay, the landlord has been denied access to the rent moneys which continue to be paid into court.
[27] In my view the prejudice to the respondent in the circumstances is not such as to exclude a further extension of time.
(iii) The Merits of the Appeal
[28] The merits of the appeal of the order of the Board or of the leave to appeal of the order of Chapnik J. did not constitute an obstacle to either Stewart J. or Sanderson J. respectively in granting an extension of time given the unfortunate circumstances of the appellant, although Sanderson J. noted that the test for leave to appeal was onerous. Moreover, the respondent has offered to consent to having the Landlord and Tenant Board review the appellant’s request for an abatement of rent based on her complaints with respect to the repair and maintenance of her premises if the action is discontinued. From my review of the record there appears to be some merit to her contention that her premises were in disrepair. In the circumstances, I would not deny the appellant a further extension of time to the appellant who is self-represented without giving her an opportunity to carefully consider the respondent’s offer or alternatively to perfect her appeal and leave to appeal.
(iv) Whether the Justice of the Case Requires It
[29] Although I agree with the respondent that the point of finality has arrived, in view of the history of this case, including the psychological impact of her son’s death on the decisions she has made in pursuing litigation before this court and before the Landlord Tenant Board and finally in pursuing her leave to appeal of the order and appeal of the Board’s decision, I am prepared to give the appellant one last chance to perfect her leave to appeal and the appeal from the decision of the Board.
[30] The application for a consolidation of the two matters is dismissed. Unless leave is granted with respect to the order of Chapnik J. there will be nothing to consolidate. Accordingly, any application to consolidate the appeals must await the result of the motion for leave to appeal.
[31] Also, the application for case management is dismissed. The steps required to move this litigation forward are clear. What is required is compliance by the tenant. In my view pursuant to s.134(2) of the Courts of Justice Act this court should entertain no further motions from the tenant until the leave to appeal and the appeal is perfected and it is so ordered.
[32] Accordingly, I make the following order:
(a) The appellant shall perfect her motion for leave to appeal from the order of Chapnik J. no later than September 1, 2016, and the time necessary to do so is extended accordingly.
(b) If the appellant fails to comply the respondent may take such steps as it deems advisable.
(c) The order of Stewart J. dated January 12, 2016, shall be amended by deleting item 8(d) and the following substituted:
“The appellant shall perfect the appeal from the Landlord and Tenant Board no later than September 1, 2016”.
(d) The order of Stewart J. made January 12, 2016, shall otherwise continue in force.
(e) There shall be no further motions from the tenant until the leave to appeal and the appeal is perfected.
[33] In all circumstances there shall be no order as to costs.
THEN J.
RELEASED: June 15, 2016
CITATION: Sivakova v. Timbercreek Asset Management Inc., 2016 ONSC 3975
DIVISIONAL COURT FILE NO.: 468/15
LBT FILE NO.: TNL-72999-15
DATE: 20160615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NATALIA SIVAKOVA
Appellant
(Tenant)
– and –
TIMBERCREEK ASSET MANAGEMENT INC. (PROPERTY MANAGEMENT)
Respondent
(Landlord)
REASONS FOR JUDGMENT
THEN J.
RELEASED: June 15, 2016