CITATION: Lim v. Toronto Community Housing Corporation, 2023 ONSC 760
DIVISIONAL COURT FILE NO.: 645/19
DATE: 20230201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, O’Brien and Schabas JJ.
BETWEEN:
Sook Ja Lim
Moving Party
– and –
Toronto Community Housing Corporation
Responding Party
Sook Ja Lim, Self-Represented
Katie Douglas, for the Responding Party
HEARD: January 17, 2023
REASONS FOR DECISION
By the Court:
Nature of the Motion
[1] As indicated in the motion record of the moving party Sook Ja Lim (“Ms. Lim”) and the direction of Matheson, J. dated December 12, 2022, Ms. Lim seeks leave to extend the time to bring this motion to vary the Order of Corbett, J. dated December 9, 2019.
[2] Corbett, J. in his Order dismissed Ms. Lim’s request to extend the time within which she might appeal the decisions of the Landlord Tenant Board (“LTB”) dated November 30, 2018 and December 31, 2018. In its decision of November 30, 2018 the LTB dismissed her claim that her landlord, the Toronto Community Housing Corporation (“TCHC”) had substantially interfered with her reasonable enjoyment of her rental unit by failing to address her complaints of noise and harassment alleged to be caused by occupants of other units in the building in which she resides. On December 31, 2018 the LTB confirmed that dismissal.
[3] If leave is granted, Ms. Lim requests an order varying the Order of Corbett, J. to extend the time for bringing of her proposed appeal of the LTB decisions.
[4] Ms. Lim also seeks leave to file fresh evidence on her motion.
[5] TCHC takes the position that the tests for granting leave to extend the time to appeal and to admit fresh evidence have not been met in this case and that Ms. Lim’s motion therefore should be dismissed. TCHC also submits that any fresh complaints of harassment alleged by Ms. Lim to have occurred since the making of the LTB decision should be pursued by her, should she wish to do so, in a new application to the LTB.
Jurisdiction
[6] Section 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) provides that a panel of this court may vary or set aside the decision of a motion judge.
Discussion
[7] A Korean interpreter was present in court to assist Ms. Lim in making her submissions understood to the Court and to interpret to her from English to Korean any part of the proceedings as may have been required.
[8] The panel may admit fresh evidence pursuant to s. 134(4)(b) of the Courts of Justice Act and Rule 61.16(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[9] The criteria for the admission of fresh evidence has been set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 SCR 759, as follows:
(a) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial or the hearing;
(b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial or hearing;
(c) The evidence must be credible in the sense that it is reasonably capable of belief; and
(d) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at the trial or hearing, be expected to have affected the result.
[10] The fresh evidence upon which Ms. Lim apparently seeks to rely, to the extent it is not a repetition of her submissions to the LTB or part of the record that was before Corbett, J., largely relates to complaints of noise and harassment by other occupants that she alleges has continued to occur since the date of the LTB decisions that she seeks to appeal.
[11] In our view, such evidence does not qualify for admission on this hearing as it is not relevant to the LTB proceedings or its decision, nor to the Order of Corbett, J. Further, such evidence could not have affected either result.
[12] Although a motion to vary the Order of Corbett, J may be brought pursuant to s. 21(5) of the CJA, Rule 61.16(6) requires that such motion be brought in a timely fashion and within four days of the date of the making of the Order sought to be reviewed. As Ms. Lim has failed to bring her motion promptly, the granting of an extension of the time within which she may bring the motion must be sought.
[13] In our view, there is no justification that has been presented that would persuade us to extend the time for the bringing of this motion. Accordingly, we would dismiss the motion on the basis of this significant delay alone.
[14] Had we not concluded that this motion is out of time and that no extension of time to bring it should be permitted, we nevertheless would further have concluded that there is no basis upon which to vary the Order of Corbett, J. In his decision, Corbett J. found that the merits of Ms. Lim’s proposed appeal were so lacking that an extension of time for the bringing of her appeal would not be justified. In particular, he found that her proposed appeal was in respect of the factual findings of the LTB which are not the proper subject of appeal under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, nor was any error of law in the decision or procedural unfairness shown. We see no error in the analysis or the decision of Corbett, J. that would warrant a variation of his Order.
[15] Having said that, we do agree with Corbett, J. and counsel for the TCHC that it remains open to Ms. Lim to bring any complaints relating to her tenancy that she alleges occurred after the LTB decision of November 30, 2018 to the LTB in the form of a new application which she is at liberty to commence.
[16] Counsel for the TCHC has further advised for Ms. Lim’s assistance that, due to a re-organization of rent-geared-to income housing in the City of Toronto, Ms. Lim’s residence is in a building now owned and operated by the Toronto Seniors Housing Corporation, her current landlord. Any new application to the LTB arising out of her tenancy should therefore be directed to the Toronto Seniors Housing Corporation.
Conclusion
[17] For these reasons, this motion is dismissed.
Costs
[18] Although the TCHC has achieved complete success in responding to this motion, it does not seek any order for costs to be paid to it by Ms. Lim. In view of that position, we make no order as to costs.
Stewart J.
O’Brien J.
Schabas J.
Released: February 1, 2023
CITATION: Lim v. Toronto Community Housing Corporation, 2023 ONSC 760
DIVISIONAL COURT FILE NO.: 645/19
DATE: 20230201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, O’Brien and Schabas JJ.
BETWEEN:
Sook Ja Lim
Moving Party
– and –
Toronto Community Housing Corporation
Responding Party
REASONS FOR DECISION
Released: February 1, 2023