Court File and Parties
CITATION: Krebs v. Shahein, 2025 ONSC 147
DIVISIONAL COURT FILE NO.: DC-24-00000383-00
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Carolyn Krebs, Moving Party
AND:
Ali Shahein, Responding Party
BEFORE: Justice S. Nakatsuru
COUNSEL: No one appearing for the Moving Party
Ali Shahein, appearing for the Responding Party
HEARD: January 7, 2025, by videoconference
Endorsement
[1]
Overview
Carolyn Krebs, the landlord of Ali Shahein, wants to appeal decisions of the Landlord Tenant Board (LTB). She is out of time to file her notice of appeal. Therefore, she moves for an order to extend the period of time to do that. She commenced this motion on July 8, 2024.
2On today’s date, while Mr. Shahein appeared on the videoconference hearing, no one for the moving party appeared. No notice or explanation was provided as to why she was absent. I could well dismiss the motion for that reason, but for the sake of finality and at Mr. Shahein’s request, I will deal with the motion on its merits. I have carefully reviewed all the materials including the affidavits filed by Ms. Krebs.
[3]
Background
There is quite a history to the case. The application by Mr. Shahein for various relief against his landlord spanned over four different hearing days. The first two were adjourned after preliminary issues were discussed. On the third, the hearing started but could not be completed. On June 16, 2022, the final hearing date, Ms. Krebs sent an employee/friend who asked for an adjournment due to Ms. Kreb’s illness. The adjournment request was denied. The hearing continued uncontested by the Ms. Krebs leading to the order of July 13, 2022, made against her.
4On August 9, 2022, Ms. Krebs requested a review of the July 13, 2022, order. The focus of her review was that she was not reasonably able to participate in the hearing as she was wrongfully denied an adjournment. On August 11, 2022, the reviewing member found no error in the denial of the adjournment. She was not satisfied that Ms. Krebs was not able to reasonably participate in the hearing or that there was a serious error in the order or the proceedings. The request to review was denied.
[5]
Legal Test
The test for an extension of time is well established (Chandra v. Canadian Broadcasting Corp., 2016 ONCA 448 at para. 13; Daly v. TRP Realty Inc., 2022 ONSC 4502 (Div. Ct.) at para. 2):
(1) Did the appellant form an intention to appeal within the appeal period?
(2) Is there a good explanation for the delay in bringing appeal proceedings?
(3) Would there be prejudice to the respondent in granting the extension?
(4) Does the justice of the case favour granting the extension?
[6]
Analysis
The deadline to appeal is thirty days. In her affidavit, Ms. Krebs states she did not become aware of the review decision prior to June 6, 2024. She says that she only became aware of the decision during a different hearing that she participated in by the acting Duty Counsel. She avers that she formed the intent to “defend” it as soon as she became aware of the review decision and has taken steps to do so as expeditiously as possible. Although I have great reservations, I will accept that Ms. Krebs formed the intention to appeal within thirty days of finding out about the decision.
7However, there is no good explanation for the delay. Ms. Krebs is not a neophyte to the business of being a landlord. She has been one for forty years. She has several units. And has considerable experience with the LTB. Essentially, she claims that she “lost track” of this case. Regardless of the situational context affecting the LTB at the time and Ms. Krebs’ personal circumstances, it was unacceptably negligent to “lose track” of a case to the extent she did not even inquire about the review decision; from her perspective, it would have been outstanding for nearly two years. Noteworthy is the fact this hearing took four appearances to complete, and the denial of an adjournment was obviously upsetting to Ms. Krebs. In addition, she submits that the decision was based on meritless claims made by her tenant and the outcome of the order including the penalties levied against her, has impacted her greatly. It is hard to see how she could have just simply “lost track” of a case like this. Nonetheless, even accepting that she did, such an explanation cannot justify the delay.
8In addition, based upon Mr. Shahein’s response, there would be considerable prejudice to him in granting the extension. He submits that the LTB ordered the landlord to pay him a significant sum of money which Ms. Krebs has so far refused to do. He is concerned that her overall response is a delay tactic. Given the inordinate delay and the outstanding financial issue, further delay to a final resolution would amount to significant prejudice to him.
9Regarding the last factor, this too has not been discharged. An important consideration here is an examination of the appeal’s merit. Looking at the merits of the case, the focus of the appeal would appear to be the denial of the adjournment and the procedural unfairness that is alleged to have resulted. An adjournment is a discretionary decision. Looking at the two decisions below, I see no basis to contend that there was an error of law in those decisions. Nor was there any procedural unfairness.
[10]
Disposition
The motion for an extension of time to appeal is dismissed.
Justice S. Nakatsuru
Released: January 7, 2024