Daly v. TRP Realty Inc., 2022 ONSC 4502

CITATION: Daly v. TRP Realty Inc., 2022 ONSC 4502

DIVISIONAL COURT FILE NO.: 672/21

DATE: 20220805

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

JULIE DALY

Ms Daly, self-represented

Appellant/Moving Party

– and –

TRP REALTY INC.

Satish Mandalagiri, for the Responding Party

Respondent/Responding Party

HEARD by ZOOM at Toronto: Apr. 28, 2022

REASONS FOR DECISION¹

D.L. Corbett J.

1The court confirms the motion argued on April 28, 2022, in which Ms Daly seeks an extension of time to appeal the order of the Landlord and Tenant Board made June 24, 2019. In that order, the LTB granted Ms Daly a rent abatement of $1,733.51. This amount was paid by the respondent on July 3, 2019.

2The test for an extension is well established (Chandra v. Canadian Broadcasting Corp., 2016 ONCA 448):

(1) Did the appellant form an intention to appeal within the appeal period?

(2) Is there a good explanation for the delay in bringing appeal proceedings?

(3) Would there be prejudice to the respondent in granting the extension?

(4) Does the justice of the case favour granting the extension?

3The deadline to appeal is thirty days. Ms Daly argues in her factum that the deadline is two years because of the provisions of the Limitations Act. That argument is without merit. The Limitations Act governs commencement of claims, not commencement of appeals. The Residential Tenancies Act expressly governs the deadline to appeal. Ms Daly argues that the deadline to appeal in the RTA breaches the Charter. That argument is without merit. The differential effects of the deadline on a person with a disability, such as Ms Daly, to the extent that they need to be addressed, are addressed by the discretion vested in the court to grant an extension. The effect of a disability on a person's ability to meet the deadline is a factor the court takes into account in assessing all four aspects of the test for an extension. The deadline to appeal is thirty days. The issue on this motion is whether to grant an extension from the time of the LTB decision (June 24, 2019) to the date Ms Daly commenced the motion in this court (January 17, 2022 - the notice of motion is mis-dated in 2021).

4Ms Daly's argument seems to be that there is dicta in the decision of the Board back in 2019 that is prejudicial in her ongoing conflict over the premises. That is not a proper basis to extend the time to bring an appeal. There is no evidence that Ms Daly formed an intention to appeal within the thirty-day deadline. Her acceptance of the payment of the rent abatement by the landlord is clear evidence that she had not formed a timely intention to appeal. Second, there is no good explanation for the delay. While I accept that Ms Daly has medical conditions and disabilities that may affect her ability to do tasks on a timely basis, the evidence does not establish a basis for extending the time to appeal by a matter of years. Third, there would be prejudice to the respondent in permitting the appeal to be brought now. The respondent sold the premises roughly two years before the impugned decision of the LTB and has not been Ms Daly's landlord for roughly five years. The respondent is entitled to be free from these old conflicts. The finality principle strongly weighs against compelling the respondent to return to this litigation over a rent abatement issue that was concluded three years ago.

5Ms Daly has not met any branch of the test for an extension to bring the proposed appeal. The motion is dismissed, with costs to the respondent fixed at $3,000, payable within thirty days.

___________________________ D.L. Corbett J.

Email Decision Released: June 28, 2022

Written Endorsement Released: August 5, 2022

CITATION: Daly v. TRP Realty Inc., 2022 ONSC 4502

DIVISIONAL COURT FILE NO.: 672/21

Footnotes

1. 1This decision was provided to the parties by email on June 28, 2022, and was effective as of that date. The reasons have been edited without changing the substance of the decision.