Court File and Parties

CITATION: Regan v. Latimer, 2016 ONSC 4351

DIVISIONAL COURT FILE NO.: 231/16

LTB FILE NO.: TSL-70221-16

DATE: 20160630

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: James Francis Regan, Tenant/Moving Party

AND:

Donna Latimer, Landlord/Responding Party

BEFORE: Then, H. Sachs and Lococo JJ.

COUNSEL: James Francis Regan on his own behalf

Spencer Toole, for the Responding Party

HEARD at Toronto: June 29, 2016

ENDORSEMENT

[1] This is a motion to vary or set aside the order of Pattillo J., dated June 21, 2016, dismissing the Tenant’s appeal as devoid of merit and vacating the stay of the eviction order. At the conclusion of the motion, we dismissed the motion with reasons to follow. These are our reasons.

[2] The test to be applied on such as a motion is set out in Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div. Ct.) – a panel should only intervene to vary or set aside the order of a single judge if the single judge made an error of law or a palpable and overriding error of fact.

[3] On this motion, the Tenant argued that the motion judge erred in failing to consider evidence concerning why he did not comply with the interim consent order made by the Board in February of 2016. On the motion before Pattillo J., the Tenant was represented by experienced counsel who did not attempt to present any such evidence. It is not an error for a judge to fail to consider evidence that was never sought to be introduced before him.

[4] The Tenant also submitted that the motion judge erred in finding that there was no merit to his appeal since the Board did not allow him to present his evidence regarding deficiencies in the premises. In this regard, the motion judge correctly found that once the Tenant failed to comply with the interim consent order, the Board had the authority, which it exercised, not to allow the Tenant to present any evidence regarding deficiencies.

[5] We are satisfied that the motion judge made no error of law or palpable and overriding error of fact. For these reasons, the motion to vary was dismissed. Failing agreement, the parties may make submissions in writing on the question of costs. These submissions shall not exceed 2 pages in length. The Landlord shall make her submissions within 10 days of the date of the release of this endorsement and the Tenant shall have 10 days to reply.

THEN J.

H. SACHS J.

LOCOCO J.

Date: June 30, 2016