CITATION: Mainstay Housing v. Hamid, 2017 ONSC 1457
DIVISIONAL COURT FILE NO.: 458/16
LTB No.: TSL-74420-16 DATE: 20170301
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
MAINSTAY HOUSING
Landlord Respondent in Appeal
– and –
HASIBULLAH HAMID
Tenant
Appellant in Appeal
Sarah Beamish, for the Landlord/Respondent in Appeal
Jacob de Klerk, for the Tenant/Appellant in Appeal
HEARD at Toronto: March 1, 2017
KITELEY J. (Orally)
[1] This is the matter of Hamid and Mainstay Housing. It is a motion on behalf of the tenant Hamid to extend the time for perfecting the appeal and therefore to set aside the order of the Registrar dismissing the appeal.
[2] Having heard submissions from counsel, they agree on the criteria that the court should apply. I am going to briefly indicate my conclusions on each of the points.
Ongoing intention to appeal
[3] Mr. Hamid did manage to serve a notice of appeal within the time limit. He did manage to get some help in ordering the transcript. He gave evidence in his affidavit about his inability to have longer term assistance.
[4] Counsel for Mainstay points to what she considers to be the many deficiencies in his attempts to continue on an ongoing basis to pursue the appeal and observes that he really only did something after the eviction by the sheriff on February 16.
[5] I accept Ms. Beamish’s submissions in that regard. However, the fact of the matter is that this tenant has mental health issues, lives in supportive housing because he cannot manage on his own and his ability to do what would become natural to other people, has to be judged in the context of his deficits.
[6] I am satisfied that in his circumstances, he made sufficient ongoing intention to appeal, that that is not a barrier to the success of this motion.
Question of the Delay
[7] The transcript in this case was actually done very quickly relative to other Landlord Tenant Board transcripts. This one was ordered on October 11, 2016 and it was completed on October 17, 2016 and the ordering party was notified on October 18, 2016.
[8] As soon as it was served, counsel for the landlord communicated the necessity to perfect on time and when that did not happen, the landlord acted within four days of the deadline to arrange a hearing on January 16, 2017.
[9] As I mentioned, he did not actually do anything except attend on January 16, 2017 but it was the immediacy of the eviction on February 16, 2017 which provoked him. He could have acted sooner. However in the context of his deficits, I am satisfied that his not acting sooner is not a barrier.
Question of Prejudice
[10] The landlord refers to the affidavit of Katherine Salinas dated February 24, 2017 and in particular, paragraph 33 on the subject of prejudice.
[11] Accepting for the moment, that the landlord does experience some prejudice by being prevented from carrying out its mandate of providing supportive housing to mental health consumer survivors, when one compares the landlord’s prejudice to the tenant’s prejudice, the tenant’s prejudice is much more acute.
[12] He has lived in this supportive housing building for ten years. An eviction will have implications to him about loss of a place and being put in a queue. I am satisfied that whatever prejudice the landlord has must take second place to the potential prejudice to the tenant.
Question of the merits of the case
[13] Counsel for the landlord takes the position that the Member weighed the evidence and made findings of credibility and such conclusions are typically not overturned on an appeal which is to be on a question of law.
[14] What happened here was that Ms. Hewlett on behalf of the landlord, advised the Member of the complaints by two people who were tenants. She advised the member what the police had told her about the charges. All of what she told the member was double hearsay. Furthermore, she told the member about events which had occurred in 2015 although the outcome of that was that the hearing before the Landlord and Tenant Board on similar allegations was not successful, there was no eviction and the charges against the tenant were actually withdrawn.
[15] The tenant in this case gave oral evidence and, amongst other things, explained the relationship with the complainants and the historical conflict and he completely denied in his evidence that he had done what Ms. Hewlett had told the member.
[16] This is not a question of weight. Instead, this is a question of whether the Member relied on inadmissible double hearsay on a key issue of whether the tenant had seriously impaired the safety of another person. There may have been an error of law which may result in a different outcome.
[17] I appreciate that the possible error of law to which I have referred, is not now in the notice of appeal but counsel for Mr. Hamid intends to amend his notice of appeal to make such a submission consistent with his submissions today.
[18] Given what I consider the merits of the appeal, the justice of the case demands that an extension of time be granted.
[19] Mr. de Klerk offered to perfect the appeal by May 1, 2017 which seemed some weeks away but I do understand his workload challenges. I would of course accept May 1, 2017 under those circumstances but I am told in the affidavit of the lawyer acting for Mr. Hamid in the criminal matter, that the trial in the Ontario Court of Justice is scheduled for April 28, 2017.
[20] I would expect that the outcome of that trial may have an impact on the proceedings in this court and I see no reason to have Mr. de Klerk having to perfect an appeal one business day after April 28, 2017 and for that reason I am extending to May 8, 2017.
[21] As indicated, the tenant had been formally evicted in that on February 16, 2017, the sheriff attended and changed the locks. Mr. de Klerk would have me order the landlord to give a key to the tenant. The landlord is not receptive to that suggestion and would resist an order.
[22] The tenant is currently under a recognizance of bail that precludes him from even attending at the premises.
[23] The affidavit of the lawyer for the tenant indicates that he might be bringing a motion to vary the term of his recognizance to allow the tenant to resume occupation. I anticipate that, for that motion to be successful, Mainstay, the landlord, would have to be supportive. I do not consider that likely given the submissions I am hearing today.
[24] For that reason, I will not set aside the eviction but I have created circumstances under which he can have access.
[25] I am reading the endorsement which is on the back of the notice of motion as follows: “For oral reasons given, motion is granted. Order to go as follows:
(1) Leave is granted to tenant to extend the time to perfect the appeal to and including Monday May 8, 2017.
(2) Tenant shall serve amended Notice of Appeal by March 10, 2017.
(3) Stay of eviction pending outcome of the appeal.
(4) If tenant obtains variation of recognizance of bail to delete the prohibition of his attendance at the premises, he may bring a motion in this court for leave to resume occupation.
(5) Unless motion brought and succeeds in order to resume occupation, Landlord shall, no no less than once each week, provide access to a person confirmed in writing to be the tenant’s agent to collect mail or belongings.
(6) Costs in the cause.”
___________________________ KITELEY J.
Date of Reasons for Judgment: March 1, 2017
Date of Release: March 6, 2017
CITATION: Mainstay Housing v. Hamid, 2017 ONSC 1457
DIVISIONAL COURT FILE NO.: 458/16
LTB No.: T