Court File and Parties
CITATION: Renee v. Simonetti, 2017 ONSC 146
DIVISIONAL COURT FILE NO.: 685/15
DATE: 20170106
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
DIONNE RENEE
Appellant
– and –
ROMOLO SIMONETTI
Respondent
- and-
MARTHA CROWLEY
Respondent
Self-Represented
Not Present and Not Represented
Spencer Toole, for the Respondent Martha Crowley
HEARD: November 30, 2016
Reasons for Decision
[1] Romolo Simonetti, the respondent in this appeal, agreed to sell the property located at 8 Darnell Ave. in Toronto to Martha Crowley on December 3, 2015. Mr. Simonetti and Ms. Crowley completed the purchase and sale in December 2015.
[2] Prior to completing the sale Mr. Simonetti applied to the Landlord and Tenant Board (the “Board”) for an order terminating the appellant’s tenancy because he had agreed to sell the property to Ms. Crowley and she required possession of the appellant’s upper duplex unit so that she could live in it.
[3] The Board made such an order on September 28, 2015. This order required the appellant to leave the premises by October 9, 2015 and provided that the appellant pay compensation for use of the unit in the amount of $49.32 per day if she failed to leave by October 9, 2015.
[4] The appellant did not leave the property by October 9, 2015 and has paid no compensation for use of the unit after that date. In the last 14 months the appellant has lived rent free and reduced her living expenses by approximately $21,000, assuming 49.32/day to be a fair estimate of the appropriate rent for the unit.
[5] The appellant requested a review of the September 28, 2015 order and on or about December 17, 2015, the Board confirmed its order.
[6] On December 24, 2015, the appellant appealed to this Court pursuant to section 210 of the Residential Tenancies Act, 2006, S.O. 2006, c.17. Section 210 of the Act provides as follows:
- (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal.
(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.
(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Board with the opinion of the Divisional Court.
(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
[7] By filing the Notice of Appeal the appellant obtained an automatic stay of the order terminating her tenancy and requiring her to move out before October 9, 2015. See Section 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
[8] The appellant has not perfected the appeal because she believes a transcript of all or part of the proceedings before the Board is required. Pursuant to Rule 61.09(1)(b) of the Rules of Civil Procedure, R.R.O. Reg. 194, where a transcript is required, the appellant is required to perfect the appeal within 60 days after receiving notice that the evidence has been transcribed.
[9] The appellant did not file proof that the transcript had been ordered. As a result, the respondents moved before the Registrar for dismissal of the appeal in September 2016. The motion was scheduled to be heard on October 17, 2016. In response to the motion, the appellant produced a letter, dated October 14, 2016 from Alfred C. Devenport, Official Examiner, which provided as follows:
We have been minimally retained by Ms. Dionne Renee to produce the transcript for the above-noted file but until we receive further funds we are unable to fulfil her request.
[10] The Registrar declined to dismiss the appeal.
[11] The appellant then moved for an order extending the time for perfection of her appeal claiming she could not pay for the portions of the transcripts she requires. The appellant’s motion was scheduled for October 26, 2016. On that day, Mr. Simonetti did not appear to respond to the motion because he was in hospital. However, Mr. Levitt appeared on behalf of Ms. Crowley. Mr. Levitt pointed out that his client’s interests are affected by the outcome of the appeal. The motion judge ordered that appellant’s motion adjourned to November 30, 2016. Mr. Levitt advised that on the return date he would bring a motion to have his client added as a party and to have the appeal quashed.
[12] Section 210(5) of the Residential Tenancies Act, referred to elsewhere in these reasons, permits the Divisional Court to make “any other order in relation to the matter that it considers proper.” I consider it proper to add Ms. Crowley as a party because she has completed the purchase of 8 Darnell Avenue. The style of cause is so amended.
[13] The appellant’s motion for an order extending the time for perfection of her appeal is refused. As indicated elsewhere in these reasons, the appellant’s living expenses have been reduced by approximately $21,000 because she has failed to pay for her continued use of the upper duplex. A fraction of that savings could have been set aside each month to pay for the portions of the transcript that the appellant feels are necessary. In addition, granting the appellant’s motion leads to a situation in which the time to perfect the appeal may never begin the run.
[14] The October 14, 2016 letter is not proof that the transcripts have been ordered in a manner that complies with the Rules. Filing an appeal of an order of the Board stays the order. This is a significant event in the proceedings. To gain this benefit, the appellant must demonstrate that she has ordered the transcripts she requires. This means that the appellant must produce a letter or certificate from the Special Examiner indicating not only that the transcripts are being prepared but also the date when they can be expected.
[15] Accordingly, the appellant’s appeal is quashed because it has not been perfected.
[16] There is no reason to depart from the generally accepted rule that the successful party is entitled to costs. Accordingly, the appellant will forthwith pay the respondents’ costs fixed in the amount of $2,500.
MARROCCO A.C.J.S.C.
Released: 20170106
CITATION: Renee v. Simonetti, 2017 ONSC 146
DIVISIONAL COURT FILE NO.: 685/15
DATE: 20170106
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
DIONNE RENEE
Appellant
– and –
ROMOLO SIMONETTI
Respondent
- and-
MARTHA CROWLEY
Respondent
REASONS FOR JUDGMENT
Released: 20170106