Court File and Parties

CITATION: McLeod v. Wigwamen Incorporated, 2025 ONSC 120

DIVISIONAL COURT FILE NO.: 270/23

DATE: 20250106

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jason McLeod Appellant AND: Wigwamen Incorporated Respondent AND Elizabeth Bunnah Moving Party

BEFORE: Justice O’Brien

COUNSEL: E. Bunnah, Self-Represented D. Levitt and T. Duggan, for the Respondent

HEARD: In-writing

Endorsement

[1] Ms. Bunnah has brought this motion asking the court to reconsider its decision dismissing Mr. McLeod’s appeal from three decisions of the Landlord and Tenant Board. She also seeks an order adding her as a party to the appeal.

[2] The landlord had obtained orders from the Board evicting Mr. McLeod from two units in the landlord’s building. Mr. McLeod lived in one unit while his children and their mother, Ms. Bunnah, lived in the other. However, the Board found Ms. Bunnah and her children were subject to the eviction orders because Mr. McLeod was the “tenant” with respect to both units. Ms. Bunnah and the children were occupants who were not named on the lease. The Board also concluded Ms. Bunnah’s interests were aligned with those of Mr. McLeod.

[3] Mr. McLeod appealed the Board’s eviction orders and a Board order dismissing a request to review to this court. The appeal was heard on November 29, 2023. Reasons dismissing the appeal were released on February 8, 2024. Mr. McLeod brought a motion seeking a stay pending leave to appeal to the Court of Appeal. At the same time, Ms. Bunnah sought leave to intervene in the motion for leave to appeal. The Court of Appeal granted both motions in a decision dated April 8, 2024. I am advised the Court of Appeal has not yet determined the motion for leave to appeal.

[4] Ms. Bunnah’s intake form to initiate her motion in this court is dated October 11, 2024, which is over ten months after the appeal was heard in this court and over eight months after the release of the court’s decision dismissing Mr. McLeod’s appeal. She also initiated her motion over six months after the Court of Appeal issued its decision on the preliminary motions pending the motion for leave to appeal.

[5] Ms. Bunnah submits there is good reason to doubt this court’s decision given that she did not participate before the Board and before this court. She also states that Mr. McLeod’s former counsel compromised the fairness of the hearing before this court.

[6] This is not an appropriate case to exercise the court’s discretion to reconsider a decision. The power to reopen an appeal after a decision has been rendered will be exercised “sparingly and only where it is clearly in the interests of justice.”: Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7, citing Mujagic v. Kamps, 2015 ONCA 360. The party seeking to re-open an appeal after a decision has been rendered faces a “high hurdle”: Meridian, at para. 7, citing Chung v. Toyota Canada Inc., 2016 ONCA 852.

[7] I do not consider it to be in the interests of justice to reconsider the appeal in this case for the following reasons:

a. Although Ms. Bunnah did not participate in the initial hearing before the Board, she was present at the hearing. At one point near the end of the day, Mr. McLeod asked if she could be called as a witness. The Board did not expressly deny the request but noted how late it was in the hearing. The Board member also reminded Mr. McLeod he had given the parties almost 3 hours and 45 minutes rather than the hour that had been allocated to them. I was not pointed to any portion of the transcript where Ms. Bunnah asked to make submissions.

b. Ms. Bunnah subsequently participated in the Board proceedings by seeking a request to review the Board’s decision, which was dismissed in the Board’s April 26, 2023 order. In that order, the Board considered Ms. Bunnah’s submissions and concluded (1) her interests were aligned with those of Mr. McLeod and (2) Mr. McLeod had also raised most of the issues she had raised in his review request.

c. Ms. Bunnah was aware of the Board decisions and would have had standing to appeal the Board’s April 26, 2023 order to this court. She failed to do so and did not seek to participate in Mr. McLeod’s appeal before it was heard.

[8] Ms. Bunnah relies on Fairburn A.C.J.O.’s statement in the Court of Appeal motion decision that her situation constituted a “rare and extraordinary case.” However, that statement was made in the context of granting leave to intervene on a motion for leave to appeal and not to justify reconsideration of a decision already made on appeal. Indeed, in granting Ms. Bunnah leave to intervene, Fairburn A.C.J.O. noted that Ms. Bunnah’s interests were already before the Board and before this court.

[9] Ms. Bunnah attempted to file substantial evidence on this motion. I cannot tell whether she filed the same evidence on her request for review before the Board because the request is not before me. However, that would have been the time to file her evidence. In a prior direction in this case, Corbett J. noted as follows:

It is not unusual for persons other than a tenant to be affected by an order terminating a tenancy and evicting a tenant from residential premises. In particular, it is not unusual for spouses and children of tenants to be affected by such an order. The Landlord and Tenant Board has original jurisdiction to consider and decide whether the interests of a person who is not a tenant should affect an order terminating a tenancy and evicting a tenant. The facts of this case are somewhat unusual - Mr McLeod (the tenant) lived in one unit and his spouse (Ms Bunnah) and two children lived in another. It is not apparent, on the record below, why this distinction should lead the court to depart from the principle that (a) the time and place to raise issues on behalf of an occupant who is not a tenant is before the LTB; and (b) an occupant affected by an order of the LTB must follow the procedures and deadlines for appeals and reviews to this court, and may not await disposition of the tenant's appeal and review proceedings in this court before seeking to get involved.

I agree with Corbett J. that the time and place for Ms. Bunnah to raise her evidence and other concerns was before the LTB. If seeking to appeal in this court, she was required to do so in a timely manner. It would offend the finality principle and cast the orderly processing of LTB proceedings into disarray if a non-tenant occupant (such as a spouse, parent or child) could come along, long after the fact, and be entitled to have the whole proceeding run over again.

[10] In these circumstances, it is not in the interests of justice for this court to reopen its decision. The motion is dismissed.

[11] The landlord is entitled to its costs of the motion in the amount of $1500 all-inclusive.

O’Brien J

Date: January 6, 2025