CITATION: Nguyen v. Shieff, 2018 ONSC 3035
DIVISIONAL COURT FILE NO.: 119/17 and 127/17
DATE: 20180514
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: THUY NGUYEN, Applicant
-and-
CORY SHIEFF, Respondent
BEFORE: F.L. Myers J.
COUNSEL: Joseph Kary, for the Appellant
David Strashin, for the Respondent
HEARD at Toronto: May 14, 2018
ENDORSEMENT
Background to these Motions
[1] Mr. Shieff is a residential tenant in a room in a house that was purchased by Ms. Nguyen. In February, 2017, the Landlord and Tenant Board granted an application to terminate the tenancy based on Ms. Nguyen’s desire to live in the house. In a separate decision, the board dismissed an application by Mr. Shieff for damages for harassment and interference with his enjoyment of the rented premises.
[2] Mr. Shieff applied to have the board review its decisions. The review of both decisions was conducted together and was dismissed.
[3] Mr. Shieff appealed both proceedings to this court. The appeals were dismissed by the Registrar in April due to Mr. Shieff failing to perfect.
[4] Mr. Shieff moves to set aside the dismissal orders. If successful, Ms. Nguyen moves to quash the appeals for being manifestly devoid of merit.
[5] Mr. Shieff’s motions are dismissed. Therefore there is no need to deal with landlord’s motion on its merits.
The Facts
[6] Upon filing his appeals almost 15 months ago, Mr. Shieff retained a transcriptionist on a timely basis to transcribe the five days of hearing transcripts. His paralegal was suspended for a month in October, 2017 with indefinite extension until he complies with a number of conditions. Mr. Shieff contacted the court reporter in February of this year. The reporter had only partly transcribed the material and said that he wanted more money because the audio recordings from the board “are outside the normal tariff.”
[7] On receiving notice that the registrar intended to dismiss the appeals for delay in late March, 2018, Mr. Shieff retained a second reporter who apparently estimates that the transcripts will be ready around the end of June.
[8] Mr. Shieff’s counsel is new to the proceeding and will need at least 60 days to review five volumes of transcripts and prepare his factum. The appeal is therefore not likely to be heard until almost two years from the board’s order. In the meantime, the landlord has not been able to move in despite the board’s finding that she had a good faith intention to do so and that the equities of the situation did not disentitle her to an eviction order.
Relevant factors
[9] On a motion to extend time for an appeal, the court is to consider a number of factors such as, the length and reason for the delay; the merits of the appeal; and the overall “justice of the case.”
[10] The delay was caused by the tenant’s lack of diligence with his transcriptionist. He had no contact with the transcriptionist for one year despite his paralegal being suspended last October. Even when the tenant learned that there was an issue regarding delay in February of this year and called his transcriptionist, he did not act until over one month later and then only once he heard from the registrar that he had ten days left until the appeals were dismissed.
[11] Neither of the tenant’s appeals has merit. Appeals under s. 210 of the Residential Tenancies Act are limited to questions of law only. Parties may not appeal questions of fact or mixed fact and law.
[12] In the eviction appeal, the tenant’s counsel has tried to frame the board member’s weighing of evidence as an improper exclusion of evidence. However, reading the member’s decision, he plainly considers the impugned evidence and decides it has little or no weight – in one case for being unsworn hearsay for example. Counsel also challenges pre-hearing rejections of the tenant’s applications for summonses by another board member. However her reasons for decision are clear and turn on lack of supporting facts or case management discretion. It is not an error of law to reject a summons for a party opposite who will be present at the hearing in any event.
[13] The member’s decision on the eviction hearing turns on his assessment of the credibility of the landlord’s claim that she wants to reside in the unit personally. The credibility assessment is discussed for several paragraphs and is ultimately made in para. 57 of the reasons. Disagreement with the assessment of the weight accorded to testimony in making a finding of fact is not an issue of law that can be appealed to this court.
[14] There is similarly no merit to the appeal of the dismissal of the tenant’s application for damages that has also been dismissed for delay. Counsel argues that the rejection of the tenant’s request for an order requiring the landlord to produce an inspection report raises an issue of law. In his reasons, the member discusses his refusal to grant a summons for documents that the tenant wanted from the landlord at the hearing. The member wrote:
The way to have proved the disrepair, as mentioned repeatedly by the representatives of the Landlord Agents, was to contact the City of Toronto rather than try to prove it through documents the new owner or vendor estate commissioned exclusively for their own use. In fact, the Tenant and/or his agent realized this at the very end of the hearing when, during the Tenant’s closing argument, an adjournment was requested so that a City inspector could be summonsed, someone whose attendance was not requested in the two voluminous requests for summonses submitted and refused prior to the final hearing. The adjournment request was denied as simply inappropriate in the final minutes of the hearing, where there had been a number of appearances, where applications were filed over seven months earlier and where there had been a Case Management Hearing over five months ago.
[15] The tenant wanted to obtain a copy of a report from the landlord or the former owner. But in that state it would not have been admissible for truth or of any significant weight without the author giving evidence. The board sees these types of applications every day. The member explained how these issues are dealt with by subpoena directed to a municipal inspector. There is no issue of law or fairness raised in what was fundamentally the denial of an adjournment request made in closing argument.
[16] Had the appeals not already been dismissed, I would likely have quashed them on the foregoing basis.
The Justice of the Case Weighs in favour of the Landlord
[17] In any event, the key issue on a motion for the extension of time is an assessment of the justice of the case. The tenant has limited means. But he told the board member that he was able to find alternative housing.
[18] The tenant argues that the landlord has stopped renovating the house. However, the cause and effect of that status is not known. That is, it seems to me that since she has been unable to close her purchase of the house to date due to the tenant’s refusal to move, there is no obvious inference to be drawn from a delay of construction.
[19] The landlord’s counsel made an excellent point that this ground of eviction is a “no fault” ground. That is, there is really no lis between the parties in which the landlord alleges some wrongdoing by the tenant. The tenant’s conduct has no relevancy to the ground of eviction before the section s. 83 discretion is considered. The sole issue on the merits before the board was the factual issues of whether the landlord held a good faith intention to move into the house. The law entitles her to evict tenants in that case regardless of their desire to stay. While in many commercial cases, the delay pending appeal is not especially prejudicial beyond the parties’ desire for finality. However in a case of this type, where the board has found that a landlord has a good faith intention to move into her new house, the landlord’s life is put on hold by an appeal. The issues are personal rather than purely commercial. Delays consequently have a greater impact than in a purely commercial context.
[20] In a case where a tenant with an appeal that is without merit allows the proceeding to be dismissed for delay due to lack of diligence in the production of transcripts and further delay keeps the respondent from moving in to live in her new home for six months or more, in my view, the justice of the case calls for a refusal to exercise the discretion to reinstate the appeal.
Outcome
[21] The tenant’s motions to set aside the dismissal of his two appeals are dismissed. The landlord’s motion to quash the appeals is therefore dismissed as moot. Although the tenant’s first position was that he was not seeking costs, when the landlord sought costs if she succeeded, the tenant argued that costs entitlement should be reciprocal. The parties agreed that costs, if ordered for the motions, should be fixed at $1,500. Mr. Shieff is therefore ordered to pay costs to Ms. Nguyen in the amount of $1,500 all inclusive.
F.L. Myers J.
Date: May 14, 2018