CITATION: Collins v. McCarthy, 2018 ONSC 872
DIVISIONAL COURT FILE NO.: DC-17-868 (Hamilton) DATE: 2018-02-05
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, MATHESON and GLUSTEIN JJ.
BETWEEN:
R. Maxine Collins
Moving Party/Appellant
– and –
Scott McCarthy and Lynn Anderson a.k.a. McCarthy
Responding Parties/Respondents
Self-Represented
Self-Represented
HEARD at Hamilton: February 5, 2018
HORKINS J. (ORALLY):
[1] The Appellant, Maxine Collins, has brought a motion in writing. She seeks an order that the Landlord and Tenant Board produce a copy of the transcripts and all documentary evidence filed at the hearing held on June 15 and July 10, 2017.
[2] The Landlord and Tenant Board has not appeared today, but has filed written submissions in response to this motion in Writing.
[3] The Appellant argues that Rule 61.09(2) of the Rules of Civil Procedure and s. 20(d) of the Statutory Powers Procedure Act require the Landlord and Tenant Board to produce the transcripts and record.
[4] The Appellant’s motion is dismissed for the following reasons:
[5] Rule 61.05(5) provides that the Appellant shall within thirty days after filing the Notice of Appeal file proof that the Appellant has ordered a transcript of all oral evidence that the parties have not agreed to omit.
[6] Rule 61.10(1) provides that the Appellant must prepare and serve an appeal book and compendium containing the following items:
(a) a table of contents describing each document by its nature and date;
(b) a copy of the notice of appeal and any notice of cross-appeal or supplementary notice of appeal or cross-appeal;
(c) a copy of the order or decision appealed from as signed and entered;
(d) a copy of the reasons of the court or tribunal appealed from, with a further typed or printed copy if the reasons are handwritten;
(e) if an earlier order or decision was the subject of the hearing before the court or tribunal appealed from, a copy of the order or decision, as signed and entered, and a copy of the reasons for it, with a further typed or printed copy if the reasons are handwritten;
(f) a copy of the pleadings or notice of application or of any other document that initiated the proceeding or defines the issues in it;
(g) a copy of any excerpts from a transcript of evidence that are referred to in the appellant’s factum;
(h) a copy of any exhibits that are referred to in the appellant’s factum;
(i) a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum;
(j) a copy of the certificates or agreement respecting evidence referred to in Rule 61.05;
(k) a copy of any order made in respect of the conduct of the appeal; and
(l) a certificate (Form 61H) signed by the appellant’s lawyer, or on the lawyer’s behalf by someone he or she has specifically authorized, stating that the contents of the appeal book and compendium are complete and legible.
[7] The Appellant’s argument that s. 20 of the Statutory Powers Procedure Act requires the Landlord and Tenant Board to “prepare” or produce transcripts and submit a record of the proceedings upon the filing of an appeal is incorrect. Section 20 of the Statutory Powers Procedure Act speaks only to the obligation of a tribunal to include a transcript “if any” in its record of proceeding, it does not oblige a tribunal to “prepare” a transcript. Additionally, s. 20 sets out the requirements with respect to filing its record of proceedings in any court proceeding.
[8] A tribunal is only required to file a record of its proceeding with the court when an application for judicial review has been filed. The Judicial Review Procedure Act states that where a tribunal is served with a notice of application for judicial review, the tribunal will file the record forthwith:
- When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.
[9] The requirements contained in the Judicial Review Procedure Act do not apply to statutory appeals of the Landlord and Tenant Board orders filed with the court pursuant to s. 210 of the Residential Tenancies Act. Appeals filed under s. 210 of the Residential Tenancies Act are governed by the Rules. Neither the Rules nor other relevant legislation requires a tribunal, such as the Landlord and Tenant Board, to file a record of its proceedings when a party has filed an appeal. The Rules and this court’s jurisprudence are clear that this obligation lies with the Appellant, who in this case is Maxine Collins.
[10] Additionally, it is important to note that the Landlord and Tenant Board Rules of Practice, specifically Rule 25.2 address this topic:
If the Landlord and Tenant Board records the hearing, the recording will form part of the record and any party may request a copy of the recording upon payments of the required fee.
[11] In summary, it is the Appellant who must comply with the Rules of Civil Procedure, and in particular Rule 61.05(5) and Rule 61.10(1).
[12] Since the 30-day time limit in Rule 61.05(5) has long since expired, we will give the Appellant a further 30 days to comply. To be clear, the 30-day time limit is reset and starts to run today. It is the Appellant’s obligation to comply with the applicable rules. The hearing of her appeal must therefore be adjourned as requested. We adjourn the appeal to the week of June 4, 2018 on a date that shall be fixed by the Registrar of the Divisional Court. The Registrar shall notify the parties of the date of the appeal that will take place during the week of June 4, 2018.
HORKINS J. ENDORSEMENT:
[13] Appellant in person, Respondents in person. No one appeared for the Landlord and Tenant Board, though written submissions were filed. For oral reasons provided today, the Appellant’s motion in writing was dismissed.
[14] I have also endorsed the back of the appeal book and compendium that is currently filed. Again, the Appellant in person, Respondents in person. The appeal was adjourned to the sittings of the Divisional Court in Hamilton the week of June 4, 2018. Date to be fixed by the Registrar of the Divisional Court. The Appellant shall comply with the Rules of Civil Procedure to perfect her appeal. The 30-day time period in Rule 61.05(5) shall run as of today.
[15] If the Respondents wish to make submissions on this appeal, they shall serve and file their factum within 30 days of the Appellant perfecting her appeal and complying with the Rules of Civil Procedure.
[16] Costs of today are adjourned to the panel hearing this appeal.
___________________________ Horkins J.
I agree
___________________________
Matheson J.
I agree
___________________________
Glustein J.
Date of Reasons for Judgment: February 5, 2018
Date of Release: February 6, 2018
CITATION: Collins v. McCarthy, 2018 ONSC 872
DIVISIONAL COURT FILE NO.: DC-17-868 (Hamilton) DATE: 2018-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HORKINS, MATHESON and GLUSTEIN JJ.
BETWEEN:
R. Maxine Collins
Moving Party/Appellant
– and –
Scott McCarthy and Lynn Anderson a.k.a. McCarthy
Responding Parties/Respondents
ORAL REASONS FOR JUDGMENT
Horkins J.
Date of Reasons for Judgment: February 5, 2018
Date of Release: February 6, 2018