CITATION: Lee v. Padathe, 2023 ONSC 4241

DIVISIONAL COURT FILE NO.:: 336/23

DATE: 20230719

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Kie Hang Kath Lee Landlord/Respondent

AND:

Lalita K Padathe and Sakunthala Devi Padath Kallikattumadathil Tenant/Appellant

BEFORE: Justice O’Brien

COUNSEL: E. Wing-Chung Choi, for the Respondent

S. D. Padath Kallikattumadathil, Self-Represented Appellant

HEARD: Motion in-writing

ENDORSEMENT

Overview

[1] The tenant, Ms. Kallikattumadathil, brought this motion in writing seeking an extension of time to file her appeal of two decisions of the Landlord and Tenant Board. The first decision, dated March 28, 2023, granted the landlord, Ms. Lee’s, request for an order terminating the tenancy due to arrears of rent.

[2] The central issue before the Board was whether the landlord was entitled to increase the rent significantly because she was exempt from rent increase guidelines that would otherwise apply under the Residential Tenancies Act, 2006, S.O. 2006 c. 17 (the Act). The Board found that the landlord fell within the Act’s exemption to the rent increase guidelines. Ms. Kallikattumadathil lives on a fixed income from the Ontario Disability Support Program (ODSP). She cannot afford the increased rent and there is no prospect that she will be able to pay it.

[3] Ms. Kallikattumadathil did not seek a review of Board’s March 28 order within the 30 days required by the Board’s rules. She then sought an extension of time to review the March 28 order, but by endorsement dated June 2, 2023, the Board denied that request.

[4] Subsection 210(1) of the Act allows a person to appeal an order of the Board to this court within 30 days. Ms. Kallikattumadathil’s notice of appeal is dated June 2, 2023. She is therefore out of time to file an appeal of the March 28 Board order unless an extension is granted.

[5] I have been case managing this matter. At a case conference, I stayed the Board’s March 28 order until Ms. Kallikattumadathil’s motion for an extension of time to file her appeal could be heard. I also provided Ms. Kallikattumadathil with the principles to address on a motion for an extension of time. At Ms. Kallikattumadathil’s request, this motion was heard in writing.

[6] The question before the court is whether it is in the overall interests of justice to grant an extension. In her affidavit filed on this motion, Ms. Kallikattumadathil makes the following statements and arguments:

(a) She did not agree to and cannot afford the rent increase of more than 50% requested by the landlord and ordered by the Board.

(b) She did not have the opportunity to present her side of the story before the Board. She has a disability and was unwell at the time. The Board had an obligation to accommodate her disability by adjourning the hearing.

(c) It would be unfair not to provide an extension of time as it would lead to eviction and homelessness.

(d) Toxic gases are being sent into the rental unit as a form of harassment. This has caused her to attend the emergency department multiple times.

(e) The Board hearing was not heard under oath and the Board failed to consider the authenticity and admissibility of evidence.

[7] Ms. Lee submits that Ms. Kallikattumadathil has not met the test for an extension of time. For the reasons that follow, I agree that it is not in the interests of justice to grant an extension. Therefore, the motion is dismissed.

Analysis

[8] The test to determine whether an extension of time should be granted is set out in Enbridge Gas Distribution v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The overarching question is whether the justice of the case requires that an extension be given. In answering the question, the court is to take into account all relevant considerations, including the following:

(1) Whether the moving party formed a bona fide intention to appeal within the appeal period;

(2) The length of, and explanation for, the delay in filing;

(3) Any prejudice to the responding party caused, perpetuated or exacerbated by the delay; and

(4) The merits of the proposed appeal.

[9] A lack of merit to the proposed appeal can, on its own, justify denying an extension of time: Enbridge, at para. 16.

Intention to Appeal

[10] Ms. Lee submits there is no evidence that Ms. Kallikattumadathil or her daughter, Ms. Padathe, who lives with her, formed or communicated an intention to appeal within the relevant time period.

[11] Although I agree there is no clear evidence of an intention to appeal, there is evidence of an intention to challenge the March 28 order within the required 30 days. Ms. Kallikattumadathil has filed letters written by a social worker from the Sexual Assault and Domestic Violence Care Centre at Women’s College Hospital. The social worker was assisting Ms. Kallikattumadathil and her daughter, following their receipt of the March 28 order. In a letter dated April 14, 2023 addressed to the Board and to Legal Aid Ontario, for example, the social worker requested that Ms. Padathe be granted an extension of time in order to find a lawyer. The social worker explained that Ms. Padathe struggles with post-traumatic stress related to violence she has experienced. She also advised that Ms. Padathe had not been able to obtain assistance from a community legal clinic. This evidence is hearsay, but it is written by a professional and Ms. Lee has not objected to its admissibility. I accept that it provides evidence both of an intention to challenge the March 28 order and that Ms. Padathe was struggling with her own and her mother’s medical issues.

[12] Ms. Kallikattumadathil has also provided direct evidence of her medical issues during the relevant time period. Her records show that she attended the emergency department five times in April and May 2023. She describes herself as a “cardiac patient” with a mobility disability, type 2 diabetes and “several other medical conditions.” She has filed a doctor’s note dated June 2, 2023 stating, “due to her medical conditions and limited functioning, this patient would benefit from extended time to file an appeal to the landlord tenant board and appeals court…”.

[13] Overall, the evidence demonstrates that Ms. Kallikattumadathil and her daughter were attempting to challenge the Board’s decision (though not by appeal to the court) within the relevant time period but were struggling in part due to their medical issues. This factor weighs in favour of the requested extension.

Length of the Delay and Explanation for It

[14] The second factor weighs in favour of granting the extension. Ms. Lee accepts that the delay, which was about 36 days from the date the notice of appeal would have been due, was not excessive. I am satisfied that the delay can be explained by the struggles Ms. Kallikattumadathil and her daughter were facing, as described above.

Prejudice to the Responding Party

[15] The third factor, the prejudice to the responding party, weighs against granting the extension. Ms. Kallikattumadathil has not paid rent since the Board’s March 28 order. At the time of the March 28 order, the arrears were almost $6,000.

[16] There is no prospect that Ms. Kallikattumadathil will be able to pay rent moving forward. She lives on a fixed income from ODSP. She has filed a statement showing a monthly ODSP payment of $1,104.43. The Board found the monthly rent (including the rent increase) to be $3,998.00. Ms. Kallikattumadathil states in her material that the rent increase of more than 50% is “outrageous.” I agree that the rent increase is substantial and accept that it has caused significant hardship to Ms. Kallikattumadathil and her daughter. However, Ms. Kallikattumadathil has not submitted that the Board was incorrect in finding that the landlord was exempt under the Act from the rent increase guidelines.

[17] The monthly rent as found by the Board is well outside Ms. Kallikattumadathil’s ability to pay. Arrears will continue to accumulate, and it is unlikely Ms. Lee will ever be able to recover them. Therefore, allowing Ms. Kallikattumadathil an extension of time to file an appeal (and continuing the corresponding stay) will cause the Landlord mounting prejudice.

Merits of the Appeal

[18] The merits of the appeal also weigh against granting an extension of time. Under s. 210(1) of the Act, a person may appeal an order of the Board to this court, but only on a question of law. Ms. Kallikattumadathil has not raised any meritorious questions of law.

[19] As referenced above, although Ms. Kallikattumadathil has submitted that the substantial rent increase was unfair, she has not identified any error in the Board’s analysis on this point that could justify intervention by this court.

[20] Ms. Kallikattumadathil’s submissions that eviction could lead to homelessness and that she is being harassed by toxic gases also do not raise any basis for this court to interfere in the Board’s decision. The Board considered these factors in its analysis of whether it should grant relief from eviction under s. 83 of the Act. While the Board member did not grant relief from eviction altogether, she found it would not be unfair to postpone termination of the tenancy to provide time for the tenants to organize their move or obtain the funds needed to void the order. Ms. Kallikattumadathil has not identified any legal error in this analysis.

[21] Ms. Kallikattumadathil has raised two issues that could be characterized as alleged legal errors and breaches of procedural fairness. The first is that the Board had an obligation to grant her an adjournment as an accommodation for her disability. The second is that the hearing was not under oath and the Board failed to consider the authenticity and admissibility of documents.

[22] In my view, these submissions have little merit. A Board’s denial of an adjournment is a discretionary decision entitled to significant deference unless there is an error of principle. Here, the Board expressly acknowledged its duty to accommodate a litigant with health issues. However, a litigant seeking an accommodation has an initial onus to demonstrate prima facie discrimination before the onus shifts to the Board to accommodate: Bernard Property Maintenance v. Taylor, 2018 ONSC 4390 (Div. Ct.), at para. 43, aff’d 2019 ONCA 830, 148 O.R. (3d) 494. The litigant also has a procedural obligation to request a specific accommodation: Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa et al., 2022 ONSC 1865 (Div. Ct.), at paras. 26-29, 47-63.

[23] Here, the Board found that the tenants had made no effort to request an accommodation before the day of the hearing. The tenants also were unable to explain what would have been different on another hearing date if the matter were to be adjourned. In her affidavit on this motion, while Ms. Kallikattumadathil provided evidence of her medical conditions, the evidence did not specify why she would be unable to participate in the appeal or how an adjournment would assist. In addition, Ms. Kallikattumadathil acknowledged that her daughter made submissions on her behalf at the hearing (although she stated it was unreasonable to require her to do so).

[24] The Landlord stood to suffer significant prejudice if an adjournment were to be granted for an indefinite period, given Ms. Kallikattumadathil’s ongoing inability to pay. In these circumstances, I do not see any merit to the submission that the Board erred in principle and breached procedural fairness by granting the adjournment.

[25] There is similarly no merit to the submission that the evidence at the hearing was not submitted under oath and that the Board failed to consider the authenticity and admissibility of documents. Subsection 15(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 authorizes a tribunal to “admit as evidence at a hearing” any oral testimony or document “whether or not given or proven under oath or affirmation or admissible as evidence in a court” (emphasis added). Ms. Kallikattumadathil does not raise a concern with the authenticity or admissibility of any particular document or other piece of evidence. Her bald allegations on this point do not raise a legal error of any merit.

Overall Justice of the Case

[26] In considering the overall justice of the case, I am sympathetic to Ms. Kallikattumadathil’s precarious situation given her finances and health. However, the Board already granted a delay of the eviction, and this court then stayed the Board’s order, such that it has been almost four months since the Board’s eviction order. She has not paid any rent during this time. I do not see any merit to her appeal, nor is there any likelihood she will be able to pay the rent while her appeal is pending. In these circumstances, the overall justice of the case weighs in favour of denying an extension of time to file the appeal.

Appeal of June 2 Order

[27] Ms. Kallikattumadathil’s appeal of the Board’s June 2 order denying an extension of time to review the March 28 order was brought in time. However, I am concerned that the appeal of that order is moot considering my disposition of the appeal of the March 28 order. Therefore, I will ask the Registrar of the Divisional Court to issue a notice pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that I am considering dismissing that appeal because it “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” Ms. Kallikattumadathil will be given an opportunity to respond to that notice when she receives it.

[28] For clarity, the appeal of the June 2 order does not stay the Board’s March 28 order.

Disposition

[29] Therefore, the motion is dismissed. Ms. Lee is entitled to immediately enforce the Board’s March 28 order.

[30] Ms. Lee sought costs of $17,471.25. This amount is well in excess of a reasonable request for a motion of this type. While I appreciate that Ms. Lee has not been paid rent, I also take into account that increasing the rent by over 50% could be expected to lead to severe difficulty for Ms. Kallikattumadathil. Considering this factor, as well as Ms. Kallikattumadathil’s financial circumstances, I order nominal costs of $1,000. Ms. Kallikattumadathil shall pay costs of $1,000 to Ms. Lee.

O’Brien J.

Date: July 19, 2023