Citation: Wright v. Lallion, 2024 ONSC 2502

DIVISIONAL COURT FILE NO.: 511/23

DATE: 20240429

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Marcus Wright and Giustina D’Elia Appellants AND: Joanna Lallion Respondent

BEFORE: Justice O’Brien

COUNSEL: M. Wright Self-Represented J. Lallion, Self-Represented

HEARD: By video-conference

ENDORSEMENT

Overview

[1] There were two motions scheduled before me today. The first was a motion by the appellant tenant, Mr. Wright, for an extension of time to file his appeal. However, Matheson J. already granted him an extension of time on terms in oral reasons given on December 12, 2023. The respondent landlord, Ms. Lallion, submits he has breached those terms and has brought a motion to quash the appeal.

Landlord and Tenant Board Decisions

[2] The tenant appeals from two orders of the Landlord and Tenant Board. The first order, dated July 18, 2023, was made on an ex parte basis. It ordered the termination of the tenancy for non-payment of rent. The Board calculated the rental arrears to be $35,000 as of July 23, 2023.

[3] The tenant requested a review of the order. He submitted that he had received two notices of hearing. The first was for a hearing on July 4, 2023 and the second was for a hearing on October 18, 2023. He said he believed the July 4 hearing had been changed to October 18.

[4] The Board denied the request for review, stating that to the extent the tenant was confused by the two notices, he failed to make reasonable inquiries to clarify the confusion.

[5] The tenant sought to make a second request for review to the Board, which was denied since the tenant had exhausted the Board’s review process.

Motion To This Court

[6] The tenant did not appeal the Board’s orders within the 30-day period required by s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. He contacted the court attempting to submit an appeal on or around September 1, 2023. The court held a case conference on September 13, 2023, after which a schedule was fixed for the exchange of motion materials for the extension of time motion.

[7] On December 12, 2023, Matheson J. heard the tenant’s motion and granted the extension of time to file the appeal on terms. The tenant was required to pay $1,000 per month until the appeal was decided, to be credited towards arrears. There was no term preventing the landlord from re-renting the premises. On consent of the parties, the appeal was to be expedited.

[8] Following a case conference on March 6, 2024, Shore J. issued directions setting out a timetable for the exchange of materials on a motion for an extension. She also established a timetable for steps on the appeal, including for the exchange of materials on the appeal should the motion be granted. Shore J. was unaware the motion for an extension had been decided by Matheson J. and stated the original motion to extend time had been resolved on consent. She noted that although the extension had been granted on terms, those terms were not complied with. The tenant was late in providing his $1,000 in January and February. Also, the appeal was to be expedited, but the tenant did not propose a schedule for the exchange of materials.

[9] Since Matheson J. already granted the motion was for an extension of time, the question before me is whether the appeal should be quashed for delay and non-compliance with the court’s directions.

Analysis

[10] The landlord submits the appeal should be quashed because this matter has been outstanding since September and the parties are no further along. She relies on the delay prior to the case conference before Shore J. and states the tenant also has not been fully compliant with Shore J.’s directions.

[11] In my view, the delay in this matter has not been inordinate and the tenant has substantially complied with Shore J.’s directions.

[12] Following a case conference on September 13, 2023, I issued directions that included a schedule for the motion for an extension of time. The directions provided that the motion would be heard no sooner than October 31, 2023. I agree that the tenant then did not provide the court with his available dates, which meant the motion was not heard until December 12, 2023. But I do not consider this to be an inordinate delay.

[13] I also accept that after the motion, the tenant did not move the matter forward to establish a schedule for the exchange of materials on the appeal. However, he did demonstrate his commitment to the appeal by paying $1,000 to the landlord in each of January and February 2024, even though he was no longer in the rental unit.

[14] To ensure the appeal would proceed in a timely manner, Shore J. established a strict schedule for next steps. Overall, the tenant has complied with those steps. He was required to provide proof of having received the audio recording from the Board hearing by March 22, 2024. He did this on March 14, 2024. He was required to provide proof that he had paid for the transcript of the audio recording by March 29, 2024. He provided this proof on April 1, 2024. While he was three days late, March 29 was Good Friday and April 1 was Easter Monday. I do not find this delay to constitute a failure to comply.

[15] Next, the tenant was required to provide proof that he had received the transcripts by April 26, 2024. He advised the landlord and the Board that he had obtained the transcripts on April 9, 2024. The transcripts have now been uploaded to CaseLines.

[16] Finally, the tenant has continued to make payments of $1,000 to the landlord each month.

[17] In sum, the tenant has substantially complied with the directions of Shore J. He has taken the initial steps to move the appeal forward and the appeal is scheduled to be heard in July. In these circumstances, it is not in the interests of justice to quash the appeal.

Disposition

[18] The motion to quash the appeal therefore is dismissed. Neither party incurred legal fees for the purpose of today’s attendance and no costs are ordered.

[19] The parties are reminded they are required to comply with Shore J.’s directions for the exchange of materials on the appeal as follows:

(a) By May 24, 2024, the appellant shall file his materials on the appeal. He is required to file an appeal book and compendium and a factum;

(b) By June 21, 2024, the respondent shall file her materials on the appeal, which must include a factum;

(c) The Board shall file its material, if any, by June 28, 2024; and

(d) The appeal is scheduled to be heard for a half day on July 24, 2024.

O’Brien J

Date: April 29, 2024