Lulu Holdings v. Arnold, 2023 ONSC 5577

CITATION: Lulu Holdings v. Arnold, 2023 ONSC 5577

DIVISIONAL COURT FILE NO.: DC-22-00000656-0000 DATE: 20231004

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

LULU HOLDINGS INC. Landlord (Respondent)

– and –

J. GORDON ARNOLD Tenant (Appellant/Moving Party)

Sahar Cadili, for the Landlord/Respondent Self-Represented, J. Gordon Arnold, Tenant/Appellant

HEARD Via Videoconference in Toronto: October 4, 2023

Leiper, J.

INTRODUCTION AND BACKGROUND

1The Appellant, tenant, Mr. G. Arnold sought an urgent order to extend the time for a motion to review or vary the decision of O’Brien, J. of this court of June 8, 2023, and other relief relative to an eviction order against Mr. Arnold. O’Brien, J. quashed Mr. Arnold’s appeal as an abuse of process and lifted the automatic stay of the eviction order.

2Mr. Arnold and his spouse live with their adult child who has a serious medical condition that requires constant care. Their son receives care from a caregiver who lives with the family. They have rented the property from the landlord since November 15, 2016. In response to Mr. Arnold’s request for time to arrange for suitable accommodation that would support his son’s care, O’Brien J. granted an extension until the first week of October 2023 to permit Mr. Arnold time to implement a similar living arrangement in the new premises.

3Mr. Arnold did not seek to review, vary, or appeal the order made by O’Brien, J. until September 28, 2023. On that date, he delivered a notice of motion to the court seeking to vary, review or alternatively, to appeal that order and seeking a further 4-month extension of the stay of the eviction order which has been scheduled to take place on October 5 in accordance with the order made by O’Brien, J. In oral submissions, Mr. Arnold revised his request to seek a 2-month extension of the order of eviction.

4The material in support claims that O’Brien, J. did not appreciate the medical condition of Mr. Arnold’s son and that over the last 12 months, increases in his cranial pressure will require a CT scan and review of his medical treatments. Mr. Arnold has filed an affidavit which states that his son reacts negatively when his surroundings are disturbed and that the stress of moving “may cause psychological and physical harms for [his son] at this time, until there is a medical opinion determines [sic] that it is safe for him to relocate, due to his deteriorating health condition.”

5The affidavit does not provide a medical opinion on the impact of a move on his son, or the steps, if any, that Mr. Arnold has taken in the past four months to find replacement accommodation that is appropriate and any other steps to respond to the effect of relocation on his son. The affidavit is silent on this and on what would be different if a further four months’ extension to the stay was granted.

6The medical records attached to Mr. Arnold’s affidavit include a recent visit to a neurosurgeon, Dr. Badhiwala, on September 25, 2023, in which Mr. Arnold and his son’s caregiver reported that over the past 2 years, the only notable change in his son’s condition has been that he sleeps more now than before.

7As for the alleged increase in intercranial pressure and the possibility of surgery, the note from Dr. Badhiwala did not recommend surgery for a shunt insertion and notes that the doctor had a lengthy conversation with Mr. Arnold to that effect. The consultation note indicates that Dr. Badhiwala did not see any signs of elevated ICP (intercranial pressure). The note discusses an increase in Mr. Arnold’s son’s “ventricular caliber” which Dr. Badhiwala will review again in six weeks. The note contains no opinion or information concerning the impact of a move on Mr. Arnold’s son.

8The affidavit does not explain why Mr. Arnold did not seek a review of O’Brien, J.’s order until the eve of eviction, given that Mr. Arnold’s affidavit describes information about increased cranial pressure in May of 2023, which is prior to O’Brien, J.’s order.

The Request to Set Aside or Vary a Decision of the Motions Judge

9Pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

10Rule 61.16(6) requires that a notice of motion seeking to set aside or vary the order of a single Divisional Court judge must be served within four days after the order is made.

11Mr. Arnold is months’ late in seeking a review of O’Brien J.’s decision and has filed no information explaining the delay.

12The landlord opposes any further extension to the eviction order and any order extending time for a motion to vary or set aside O’Brien J.’s decision for the following reasons:

a. O’Brien J. found that there is no merit to the appeal and that the proceedings reveal a pattern of the tenant bringing urgent, last-minute requests for relief based on his son’s medical needs, including in circumstances where he misrepresented the urgency of those needs;

b. The tenant refused to permit a representative of the intended new mortgagee to attend inside the property to conduct an appraisal, contrary to the RTA. The landlord is at risk of having the property be sold under power of sale if the tenant is permitted to continue to live in it while not permitting anyone to enter;

c. The tenant has had a four-month period to plan for new living space and has not provided any evidence of what he has done to take advantage of this time;

d. The tenant has abused the process of the court and has no intention of moving unless the court enforces its orders;

e. The tenant has told the landlord that he wishes to purchase the rental property and he is trying to put the tenant in a “financial bind in order to obtain it at a reduced price;

f. This is the second time that the court has found that Mr. Arnold has abused the process of the court relative to this tenancy and these parties: see the decision of Matheson, J. at Arnold v. Lulu Holdings Inc., 2021 ONSC 8125;

g. The material does not support the submission of Mr. Arnold that his son’s condition is deteriorating and that a move would be unsafe;

h. The Office of the Sheriff served notice of eviction and provided time for Mr. Arnold to make interim arrangements for housing for the family.

13Mr. Arnold made submissions which included information not included in his affidavit that he and his spouse have looked at over 30 properties but have not found a place to move. There are no details of the timing, nature of that search or other information that would demonstrate a good faith effort to find accommodation.

ANALYSIS

14I begin with whether to grant the requested extension of time to review O’Brien, J.’s order.

15If a motion is not brought in a timely manner, the Court should consider: whether the moving party had an intention to bring the motion within the time prescribed; the reason for the delay, having regard to the length of the delay; any prejudice to the responding party; the merits of the motion; and the justice of the case: see Sazant v. Criminal Injuries Compensation Board, 2011 ONSC 2060 (Div. Ct.), at paras. 2 and 3; Varshavska v. Varshavskiy, 2011 ONSC 1396 (Div. Ct.); Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131.

16Mr. Arnold’s material is silent on whether he had an intention to bring the motion to review within the time prescribed, that is between June 8, 2023, and June 12, 2023. He refers to medical information received in May of 2023 that he alleges O’Brien J. failed to appreciate. On receiving the reasons for that order, he had all the information necessary to bring a review in a timely fashion. He did not do so nor explain why he did not do so. I am not able to find he intended to bring the motion within the time frame required.

17Given the pattern of last-minute requests for relief, and an expressed wish to cause financial harm to the landlord, which is not denied, including by actions that objectively are capable of causing financial harm, such as refusing entry to a new mortgagee, I infer that Mr. Arnold is instead using urgent, last minute legal proceedings to obstruct the landlord from retaking lawful possession of the premises. This factor supports a dismissal of the motion.

18The landlord, responding party has outlined several heads of prejudice if the extension is granted. His ability to refinance the property is at risk. The failure of Mr. Arnold to pay costs of the prior proceeding and the landlord’s own need to pay legal fees to respond to proceedings which have been found to be an abuse of process of the court are examples of prejudice. A further extension would bring additional expense to the landlord. This factor supports a dismissal of the motion.

19As to the merits of the underlying review motion, Mr. Arnold has not identified any error made by Justice O’Brien to suggest his review would succeed. His argument hinges on an inaccurate reading of the medical records which do not support his submission that his son is deteriorating, has increased intercranial pressure or needs imminent surgery. None of the evidence filed on this motion supports those conclusions.

20A panel will generally only intervene where the single judge has made an error of law or a palpable or overriding error of fact: Bernard Property Maintenance v. Taylor, 2019 ONCA 830 at para. 26.

21Mr. Arnold has not identified any error of law or overriding error of fact made by O’Brien, J. I conclude that the grounds for review do not have apparent merit. This factor supports the dismissal of the motion.

22I find that Mr. Arnold’s motion to extend time and review has been brought at the last minute again to avoid the consequences of O’Brien J.’s order.

23This motion, brought at the 11th hour is without foundation and is an attempt to disrupt the eviction ordered by O’Brien, J. Having chosen not to use the time provided to him, Mr. Arnold has left this court no choice but to order his eviction on a shorter time line because this court has no confidence that he will take the steps necessary if given a further extension to vacate the property which the landlord has a lawful right to regain.

OTHER MATTERS

24The landlord filed a cross motion seeking an order declaring Mr. Arnold a vexatious litigant. The original motion was scheduled on an abridged timeline given that Mr. Arnold established urgency. Given my findings on the main motion and the short timeline, I decline to hear the cross-motion today. This is without prejudice in future proceedings for the respondent to bring that motion in accordance with the Rules and the Courts of Justice Act.

CONCLUSION

25The motion for leave to extend time to review, vary or otherwise appeal the order of O’Brien, J. and for other ancillary relief is dismissed. The stay of the eviction order is lifted immediately.

26The landlord seeks terms to aid in the eviction including the involvement of the police to assist the sheriff. Given that s. 141(2) of the Courts of Justice Act R.S.O. 1990, c. C.43, provides the sheriff with the power to require a police accompaniment to prevent a breach of the peace, I will simply add that the sheriff is so empowered to my order. I also order that Mr. Arnold not interfere with the eviction process and that he take all steps within his control and make the necessary arrangements to assist his son during the process.

27The landlord is responsible for arranging to have a locksmith on site to change the locks.

28Costs of the motion are ordered in favour of the landlord in the amount of $8,000 payable within 60 days. I base the award of costs on the finding of an abuse of process, the last-minute filing by Mr. Arnold, the moderate complexity of the matter and the bill of costs filed by counsel for the landlord.

___________________________ J. Leiper