Court File and Parties

CITATION: Bayside Rowing Club Inc., v. Navhar Properties Inc., 2016 ONSC 4118

DIVISIONAL COURT FILE NO.: 022/16

LTB NO.: TSL-67802-15/TSL-67802-15-RV

DATE: 20160705

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: bAYSIDE ROWING CLUB INC., AND DOMINIC KAHN ALSO KNOWN AS DOMINIC KHAN, Appellants

AND:

navhar properties inc., Respondent

BEFORE: Stewart J.

COUNSEL: Domenic Kahn, In Person for the Appellants

Jacqueline Ho, for the Respondent

HEARD at Toronto: June 20, 2016

ENDORSEMENT

[1] The Appellants move to set aside the decision of the Registrar dated June 8, 2016 which dismissed this appeal for delay.

[2] The appeal is from a Review Order of the Landlord and Tenant Board dated January 11, 2016 which ordered the Appellants to vacate rental premises and to pay rental arrears in the amount of $25,000.00, and ordered costs to be paid to the Respondent.

[3] Because this is an appeal from a decision of the Landlord and Tenant Board, service of the Notice of Appeal resulted in an automatic stay of the eviction order. The Appellants therefore have continued to reside at the rental premises, paying no rent. Arrears of rent owing to the Respondent currently exceed $60,000.00.

[4] Although given required notice and ample time within which to file proof that a transcript of evidence had been ordered, the Appellants did not do so. Hence, the appeal was dismissed with costs by the Registrar.

[5] The Appellant Dominic Kahn (“Khan”), a self-represented litigant, swears in his affidavit that he misunderstood the requirement to provide a transcript for the appeal, and had ordered copies of the audio recording of the proceedings before the Landlord and Tenant Board instead of the transcript required for this appeal.

[6] As of the date of the hearing of this motion, no transcript has been ordered by the Appellants.

[7] In considering whether to set aside the Registrar’s order, several factors are to be taken into account: whether the Appellants have satisfactorily explained the delay, whether the Appellants missed the deadline because of inadvertence, whether the Appellants brought their motion promptly, and whether the Respondent is prejudiced (see: Keuroghlian v. Goodmans LLP, 2009 ONCA 729 (Ont. C.A.)).

[8] Overall, the overriding question is whether, after taking into account the interests of both parties, setting aside the Registrar’s Order is just (see: Keuroghlian, supra; Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (Ont. C.A.)).

[9] I find that I cannot accept the Appellants’ explanation for missing the deadline that has been advanced by Khan as it is unreasonable and lacks simple credibility. I consider the protracted background to this dispute, coupled with Khan’s familiarity with legal proceedings, demonstrate that he was deliberately delaying the appeal in order to take advantage of the automatic stay provision that would allow him to continue to reside in the rental premises without paying any rent for as long as possible.

[10] This conduct has resulted in prejudice to the Respondent which has been prevented from enforcing its rights to evict the Appellants in accordance with the Order of the Landlord and Tenant Board and is continuing to suffer mounting financial losses by way of accruing and unrecoverable rental arrears.

[11] This conclusion is further supported by the fact that as of the time of the hearing the Appellants had not taken steps to order the transcript.

[12] As far as the merits of the proposed appeal might be considered as being at all relevant to the determination of this motion, I consider that the argument advanced by the Appellants that the lease between the parties is a commercial lease and thereby outside the jurisdiction of the Landlord and Tenant Board is manifestly lacking in merit.

[13] Indeed, the fact that the Respondent proceeded to seek eviction and order for payment of arrears of rent, which are subject to a statutory maximum and other legislative provisions that favour the Appellants, put the Appellants in a better position that they would have been in had the lease actually been a commercial tenancy.

[14] Khan continues to reside at the rental premises, a fact which is not in dispute and which is supported by photographs filed on this motion. It is therefore evident that the premises are residential and the Landlord and Tenant Board had the jurisdiction to make the orders it did.

[15] For these reasons, I am of the view that to set aside this Order of the Registrar in these particular circumstances would not be just. Accordingly, the motion is dismissed.

[16] If the parties wish to make submissions as to costs, they may do so in writing and deliver same within 15 days of today’s date.

[17] Any requirement for approval as to form and content of the formal order reflecting this disposition is hereby dispensed with.

Stewart J.

Date: July 5, 2016