Citation: Ledoux v. Yabibal, 2022 ONSC 1000
DIVISIONAL COURT FILE NO.: 224/21
LANDLORD AND TENANT BOARD FILE NO.: TEL-10677-20; TEL-10677-20 RV-IN
DATE: 2022/01/18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERER, MATHESON and COPELAND JJ.
BETWEEN:
NANCY JILL LEDOUX
Appellant (Tenant)
– and –
ASFAW YABIBAL
Respondent (Landlord)
Counsel:
Kevin M.A. Laforest and Renee Griffin, for the Appellant (Tenant)
David R. Conway, for the Respondent (Landlord)
HEARD at Toronto (by videoconference): January 18, 2022
Oral Reasons for Judgment
Lederer, J. (Orally)
[1] The Appellant, the tenant, was significantly in arrears with respect to her rent. The Respondent, the landlord, relying on s. 69 of the Residential Tenancies Act S.O. 2006, c. 17, determined to apply for an order terminating the tenancy and evicting the tenant.
[2] November 27, 2020 was set as the date for the hearing before the Landlord and Tenant Board. The tenant had a series of complaints concerning maintenance and the condition of the unit. Relying on s. 82(1) of the Residential Tenancies Act, she sought to have those issues raised and considered by the Board as part of the scheduled hearing.
[3] Rule 19.4 of the Landlord and Tenant Board prescribes that a tenant who wishes to raise such issues in a hearing concerning rent arrears is required, unless the Board orders otherwise, to provide other parties (the landlord) and the Board with “at least seven days’ notice”. In this case the Board required that five days’ notice to be given. As it happens five days prior to November 27, 2020, that is November 22, 2020, was a Sunday. Notice was not provided until the following day, November 23, 2020. Thus, only four days’ notice was provided.
[4] At the hearing the Board member raised the concern that notice was not provided as had been directed and was late. He heard submissions on the issue and ruled that the tenant would not be permitted to raise the issues of concern.
[5] The tenant appeals this ruling. She submits that properly understood the applicable legislation and the Rules of the Board recognize that when a time limit “expires” on a holiday (see: Legislation Act S.O. 2006, c. 21, Sched. F, s. 89(1)) or “when the time for doing anything ends on a holiday” (see: Rules of the Landlord Tenant Board, rule 1.14) the time permitted is extended to the next day. Sundays are defined to be holidays (rule 1.1 of the Rules of the Landlord and Tenant Board). On this basis, the tnant submits that service on November 23, 2020 was in time and the Board erred in ruling to the contrary both in its initial decision and the subsequent review.
[6] We do not accept this submission.
[7] This finding is consistent with the general understanding that legislation and for that matter the rules are to be interpreted as being remedial. In these circumstances the intended protection was directed to the landlord and the Board. They were to have sufficient notice to allow for preparation and a proper hearing. The hearing date had been set for some time and the tenant had been free at any time thereafter to serve notice of her intention to proceed under s. 82(1). To put it differently, nothing “expired” or “ended” on November 22, 2020. By serving on November 23, 2020 the tenant ran the risk that the Board would either refuse to adjourn the hearing or exercise its discretion against allowing the tenant to proceed with the issues she sought to raise.
[8] The tenant makes two further submissions. She submits that the Board exercised its discretion unreasonably in denying the opportunity to raise issues under s. 82 and that there were insufficient reasons provided to justify this denial. It is generally understood that for a discretionary determination to be set aside it must be made contrary to some underlying principle or a misapprehension of the facts. This is not the case here.
[9] The reason the Tenant was not permitted to proceed with her s. 82 issues is because her notice was late, and the Board was not satisfied with the explanation for the lateness. Although the reasons of the member who made the initial order could have been more explicit, we find no error in the holding of the reviewing member that the first member was not satisfied with the explanation for the late notice.
[10] In this regard, I note that the tenant continued to be in arrears of rent in excess of $30,000 and that she may (assuming she has or can act consistent with the limitation found in s. 29(2) of the Residential Tenancies Act) still be able to seek an abatement of that debt pursuant to s. 29(1).
[11] Accordingly, the appeal is dismissed. Costs pursuant to the agreement by the parties in the amount of $4,000 all inclusive to be paid by the tenant to the landlord.
Lederer J.
I agree _______________________________
Matheson J.
I agree _______________________________
Copeland J.
Date of Oral Reasons for Judgment: January 18, 2022
Date of Written Release: February 16, 2022
CITATION: Ledoux v. Yabibal, 2022 ONSC 1000
DIVISIONAL COURT FILE NO.: 224/21
LANDLORD AND TENANT BOARD FILE NO.: TEL-10677-20; TEL-10677-20 RV-IN
DATE: 2022/01/18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERER, MATHESON and COPELAND
BETWEEN:
NANCY JILL LEDOUX
Appellant (Tenant)
– and –
ASFAW YABIBAL
Respondent (Landlord)
ORAL REASONS FOR JUDGMENT
Lederer, J.
Date of Oral Reasons for Judgment: January 18, 2022
Date of Written Release: February 16, 2022