DIVISIONAL COURT FILE NO.: 511/23 DATE: 20231212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
MARCUS WRIGHT Moving Party/Tenant
– and –
JOANNA LALLION Respondent/Landlord
Self-represented Stephanie Sutherland, for the Respondent/Landlord
HEARD at Toronto: December 12, 2023, by video-conference
MATHESON J., (ORALLY)
Overview
1This is a motion for an extension of time to appeal from the Landlord and Tenant Board (“LTB”) and for interim terms if an extension of time is granted. The moving party is the tenant before the LTB and challenges an eviction order and related order in connection with a review of the eviction order.
2In particular, the moving party seeks to challenge the order of July 18, 2023, which arises from a hearing that the tenant was not present for and gave rise to the eviction. The moving party also seeks to challenge a related decision of July 31, 2023, denying the moving party’s request to review the July 18, 2023 order.
3In the July 31, 2023 LTB order, the adjudicator noted that it appeared that the tenant may have been confused about the return date for the earlier hearing due to two notices of hearing being sent with different dates. However, having considered other factors, the adjudicator denied the tenant’s review request.
4The tenant attempted to submit an appeal to the Divisional Court on or about September 1, 2023. Due to the notice of appeal being about two weeks late, we now have this motion for an extension of time. The eviction was enforced on September 5, 2023, and the moving party has established a new residence, but he has made submissions about the great difficulties and hardships in doing so.
5No affidavit evidence was filed by either side on this motion. I have permitted the moving party to upload the individual documents that he relies upon to CaseLines. The respondent does not dispute the authenticity of any of those documents.
6The documents show numerous steps at the LTB leading up to the eviction order. Those steps include an N12 form indicating that the landlord wanted vacant possession in order that the landlord or a family member could move into the premises. There are also documents showing that the landlord wanted to re-rent the premises and there is an N1 document reflecting a rent increase after some of those prior notices had been given. That rent increase was from $1,900 a month to $5,000 a month.
7I will not attempt to set out the entire chronology. The moving party submits that the documents show not only the basis for missing the July18, 2023 hearing and the confusion referenced by the adjudicator, but also bad faith on the part of the landlord. Although the notice of appeal in this Court could be more clear, the moving party has now clarified that he does seek to appeal the July 18, 2023 eviction order. The notice of appeal does include the July 31, 2023, denial of a review of that order.
8In that this is a motion for an extension of time, it is important to note that the delay is only about two weeks. The landlord has nonetheless objected to the extension of time. There is no question that the amount of arrears as found by the LTB is considerable.
Test for Extension of Time
9The test for an extension of time is well settled. The overarching question is the justice of the case. Relevant considerations include the moving party’s intention to appeal, the length and explanation for the delay and prejudice. The merits of the appeal, or lack thereof, is a relevant consideration as well.
10The respondent does not take serious issue with two of the considerations, specifically the intention to appeal and the length and explanation of the delay. There is a considerable explanation before me and the delay is very short. The landlord does take issue with other factors, specifically prejudice and the merits of the proposed appeal.
11On prejudice, the landlord refers to the substantial arrears owing and also the inability to re-rent the premises pending an appeal.
12With respect to the merits, the landlord accepts that there is a possible issue of procedural fairness that would be subject to a right of appeal as a question of law. However, the landlord submits that for other reasons the appeal is devoid of merit. On the merits, it appears the moving party plans to dispute the entitlement of the landlord to raise the rent. I caution the moving party that he should not assume that on the appeal from the two LTB orders that are at issue that he will be able to successfully challenge that increase. I am not making a ruling about it now, but I do not rely on that issue in rendering my decision on this motion.
Analysis
13I then move to the overarching interest of justice. Given the above considerations and especially the course of steps regarding the LTB, I am prepared to exercise my discretion to grant an extension of time, on terms.
14As I have said during the hearing, even without needing an extension of time, this Court will often require a tenant who has substantial arrears owing make installment payments pending the disposition of appeal proceedings in this Court. In this case, the arrears are very large.
15The tenant has submitted that through events following the eviction and related emotional and financial strain, the tenant is not in a position to make any substantial payments at this time. Having said that, I think it is important that there be some payment against the arrears going forward.
16I should note that the tenant has said that the last months’ rent that was held by the landlord can now be released by the landlord and used to reduce the arrears. In addition to that payment, I am going to require that the tenant make a payment against the arrears of $1,000 per month until his appeal has been decided. In doing so, I do not in any way rule on the amount outstanding. These payments shall reduce that amount, but the total amount is not the subject for a ruling today.
17Since the eviction has already been enforced and the moving party has found permanent residence elsewhere, there is no longer any purpose for a stay of the eviction order made on July 18, 2023. The eviction has taken place. There therefore shall be no stay of that eviction order.
18Lastly, I am not persuaded that a term should be imposed on the landlord preventing the landlord from re-renting the premises during this appeal and I do not impose that term.
19To summarize:
(1) the moving party shall pay $1,000 a month, each month until the appeal is decided;
(2) those payments shall be made starting on the first business day of each month;
(3) those payments shall be credited against the arrears, as well as the one months’ rent that the landlord has already received;
(4) there shall be no stay of the eviction order;
(5) there shall be no term preventing the landlord from re-renting the premises going forward; and,
(6) lastly, on agreement between the parties, the appeal shall be expedited.
Costs
20On costs, the moving party, successful on his motion, is seeking $1,500 in relation to both out of pocket expenses including filing fees and delivery charges and consultations with counsel for assistance. The respondent disputes these claims except for $250 in relation to things like filing fees.
21In all the circumstances and bearing in mind the short extension that was needed here, I am going to order the landlord to pay $1,000 in costs to the successful party. However, those costs will be paid by crediting $1,000 against the rental arrears. This will not reduce the ongoing monthly payments that I have already required starting on the first business day of January.
___________________________ Matheson J.
Date of Reasons for Judgment: December 12, 2023
Date of Release: December 14, 2023
CITATION: Wright v. Lallion, 2023 ONSC 7021
DIVISIONAL COURT FILE NO.: 23/511 DATE: 20231212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
MARCUS WRIGHT Moving Party/Tenant
– and –
JOANNA LALLION Respondent/Landlord
ORAL REASONS FOR JUDGMENT
MATHESON J.
Date of Reasons for Judgment: December 12, 2023
Date of Release: December 14, 2023