Court File and Parties
CITATION: Lindsay v. Ecuhome Corporation, 2024 ONSC 6169
DIVISIONAL COURT FILE NO.: 434/23
DATE: 20241118
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
MARK LINDSAY
Appellant
– and –
ecuhome corporation
Respondent
Mark Lindsay, in person
Spencer Toole, for the Respondent
Catherine Oatway, for the City of Toronto
HEARD at Toronto: October 31, 2024 (by video)
REASONS FOR DECISION: MOTION FOR AN EXTENSION OF TIME
Davies J.
[1] Mr. Lindsay lived in a residential unit that is owned and operated by Ecuhome Corporation from June 2019 until he was evicted on August 27, 2024. Mr. Lindsay received a rent-geared-to-income (RGI) subsidy throughout his tenancy.
[2] In January 2021, Mr. Lindsay filed an application with the Landlord and Tenant Board claiming Ecuhome was harassing him and substantially interfering with his reasonable enjoyment of his unit. Mr. Lindsay also claimed Ecuhome had illegally increased his rent during the rent freeze that the government instituted during the COVID-19 pandemic. The Board dismissed that application on April 7, 2022. In relation to the rent increase issue, the Board found Mr. Lindsay’s rent had not changed. Rather, the amount Mr. Lindsay had to contribute towards his rent changed because his RGI subsidy changed. At the hearing before the Board, Mr. Lindsay took issue with how his RGI subsidies were calculated in 2020, 2021 and 2022. The Board found that it had no jurisdiction in relation to decisions about RGI subsidies, which are made by designated service managers under the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1.
[3] Mr. Lindsay sought a review of the April 7, 2022 decision of the Board. That review was dismissed on May 18, 2022 without a hearing.
[4] Mr. Lindsay did not appeal the 2022 decisions to the Divisional Court.
[5] Ecuhome then filed an application to terminate Mr. Lindsay’s tenancy because he had not paid the rent owing. During the hearing of Ecuhome’s application, Mr. Lindsay disputed the amount he owed in arrears. He again tried to challenge the RGI calculations.
[6] On May 18, 2023, the Board terminated Mr. Lindsay’s tenancy. The Board once again held that it had no jurisdiction to review the RGI calculations. The Board found that Mr. Lindsay owed $8,964 in rental arrears. The Board ordered Mr. Lindsay to move out by May 29, 2023 unless he paid the arrears.
[7] On July 21, 2023, Mr. Lindsay tried to file a notice of appeal in relation to the May 18, 2023 decision of the Board and an application for judicial review in relation to the 2022 decisions. Mr. Lindsay also sought an extension of time on both.
[8] On October 20, 2023, Justice Matheson granted Mr. Lindsay an extension of time to file his appeal from the May 18, 2023 decision of the Board. Justice Matheson denied Mr. Lindsay’s request for an extension of time to file the application for judicial review of the 2022 decisions.
[9] I heard Mr. Lindsay’s appeal of the May 18, 2023 decision on June 18, 2024. I dismissed his appeal on July 2, 2024: Lindsay v. Ecuhome Corporation, 2024 ONSC 3749.
[10] Mr. Lindsay filed a motion at the Court of Appeal for an extension of time to seek leave to appeal my July 2, 2024 decision and Justice Matheson’s October 20, 2023 decision. The Court of Appeal dismissed Mr. Lindsay’s motion on August 21, 2024. In relation to Justice Matheson’s order, the Court of Appeal found that it had no jurisdiction to hear an appeal from that decision: Courts of Justice Act, s. 21(5). In relation to my decision, the Court of Appeal found that Mr. Lindsay’s application for leave to appeal did not have sufficient merit to justify granting an extension of time.
[11] Following the Court of Appeal’s decision, Mr. Lindsay filed this motion for an extension of time to file a request for a hearing before a panel of this court to review Justice Matheson’s October 20, 2023 decision.
[12] For the following reasons, Mr. Lindsay’s motion is dismissed.
[13] The question is whether the justice of the case requires that Mr. Lindsay be given an extension to pursue a review of Justice Matheson’s ruling before a panel of this Court. I must consider all the relevant circumstances, including
a. Whether Mr. Lindsay formed an intention to seek a review of Justice Matheson’s decision within four days of it being released;
b. Whether there is an explanation for the lengthy delay;
c. Whether Ecuhome will be prejudiced if an extension is granted; and
d. Whether Mr. Lindsay’s application to set aside Justice Matheson’s order has merit.
[14] In my view, the circumstances of this case do not favour granting Mr. Lindsay an extension of time.
[15] A motion to set aside or vary the order of a single judge of this court on a motion must be brought within four days of the order being made: Courts of Act, s. 21(5) and Rules of Civil Procedure, R. 61.16(6). If Mr. Lindsay wanted to review Justice Matheson’s October 20, 2023 decision denying him an extension of time to seek judicial review of the Board’s 2022 decisions, he was required to do so by October 24, 2023.
[16] Mr. Lindsay acknowledges that he did not form an intention to review Justice Matheson’s decision within the appeal period. He argued that he did not know he could seek a review of Justice Matheson’s decision before a panel of this Court until the Court of Appeal dismissed his motion for an extension of time.
[17] The length of the delay is significant and Mr. Lindsay has not provided a compelling explanation for the delay other than he did not know he could seek a review at the time.
[18] Ecuhome would be prejudiced if an extension of time were granted. Mr. Lindsay has been evicted from his unit. The Board found that he owes a significant amount of arrears to Ecuhome, which he has not paid. He has also not paid the costs order I made or the costs order the Court of Appeal made. Ecuhome would be prejudiced if it were required to incur further legal expenses in response to yet another motion by Mr. Lindsay.
[19] Finally, Mr. Lindsay’s motion to set aside Justice Matheson’s order has no merit.
[20] On a review motion under s. 21(5) of the Courts of Justice Act, the panel will not vary or set aside the motion judge’s decision unless there is an error of law or a palpable and overriding error of fact: Rosen v. Reid, 2024 ONSC 5224 (Div. Ct) at para. 6. Justice Matheson’s decision to deny Mr. Lindsay an extension of time to appeal the 2022 decisions of the Board was a discretionary decision. The review panel will not interfere with a discretionary decision of a single judge unless (a) it was “so clearly wrong that it amounts to an injustice”, or (b) the motion judge gave insufficient weight to relevant considerations. Justice Matheson considered all the circumstances that are relevant on a motion for an extension of time and made no error in law.
[21] In my view, Mr. Lindsay’s motion for an extension of time is a tactic to create another opportunity for him to re-litigate issues that have already been decided. Mr. Lindsay’s primary concern is that his RGI subsidy was not calculated properly in 2020, 2021 and 2022. His position is that if those calculations were done properly, he would not have been in arrears on his rent and should not have been evicted. Mr. Lindsay remains concerned about the fairness of the hearing before the Board in April 2023. Mr. Lindsay sought an adjournment of that hearing so he could challenge the RGI calculations in a different forum. The Board denied that request, which Mr. Lindsay argues is unfair. I have already decided both those issues. I found that the Board made no error in denying him an adjournment to pursue a review of the RGI subsidy in a different forum. I also found the Board was correct to find that it has no jurisdiction to determine issues related to the calculation of his RGI subsidy. Mr. Lindsay pursued an appeal of that decision at the Court of Appeal, as was his right. The Court of Appeal denied his application for an extension of time largely because the Court found his appeal had no merit. Mr. Lindsay has exhausted all his rights of appeal on those issues.
[22] The more fundamental problem with Mr. Lindsay’s position is that even if he were granted an extension of time to review Justice Matheson’s decision and even if the panel set aside Justice Matheson’s order and even if he were permitted to files his judicial review application from the 2022 decisions of the Board, this Court would not be able to correct the RGI calculations. That is because, as Mr. Lindsay has been repeatedly told, the Landlord and Tenant Board does not have jurisdiction to consider issues related to the calculation of RGI subsidies. RGI calculations are governed by the Housing Services Act, and the Residential Tenancies Act expressly prohibits the Board from making determinations or reviewing decisions about eligibility for an RGI subsidy or the amount of a subsidy. This Court can only consider the validity of the Board’s decision on an application for judicial review. This Court cannot review or correct the RGI calculations that were done by another statutory decision maker.
[23] Mr. Lindsay has not identified any arguable error in Justice Matheson’s October 20, 2023 decision, nor has he articulated any arguable grounds to review the 2022 decisions of the Board.
[24] The justice of the case does not warrant granting an extension of time to allow Mr. Lindsay to bring a review motion that should have been brought more than a year ago.
A. Conclusion and costs
[25] Mr. Lindsay’s motion is dismissed.
[26] Ecuhome seeks $5,489.08 in partial indemnity costs. As the successful party, Ecuhome is presumptively entitled to costs on this motion. However, I must also consider Mr. Lindsay’s ability to pay. Given Mr. Lindsay’s very limited resources, I find it would be just and appropriate to require Mr. Lindsay to pay Ecuhome $2,500 in costs on this motion (inclusive of HST).
Davies J.
Date: November 18, 2024
CITATION: Lindsay v. Ecuhome Corporation, 2024 ONSC 6169
DIVISIONAL COURT FILE NO.: 434/23
DATE: 20241118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Steven Lindsay
Appellant
– and –
Ecuhome Corporation
Respondent
REASONS FOR DECISION: MOTION FOR AN EXTENSION OF TIME
Davies J.
Date of Release: November 18, 2024