Magno v. Lakhany, 2025 ONSC 5235

Court File and Parties

CITATION: Magno v. Lakhany, 2025 ONSC 5235

DIVISIONAL COURT FILE NO.: DC-23-0043-00

DATE: 20250912

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Magno, Micaela, Appellant

AND:

LAKHANY, Naureen, Respondent

BEFORE: Justice McSweeney

COUNSEL: DIMITRIOU, Gregory, for the Appellant

SHAH, Tariq (in place of Tamer T. Shah), for the Respondent

HEARD: March 5, 2025

APPEAL DECISION

1The appellant Micaela Magno appeals from an Order of the Landlord and Tenant Board (LTB) that denied her request for an extension of time to request review of an order.

2Ms. Magno contends that she was denied basic procedural fairness by the LTB as she was given no notice of the hearing, and had no opportunity to participate. That hearing determined that she was a tenant of the Landlord. Nor did she receive a copy of the resulting decision from either the LTB or the Landlord. She therefore did not know that the LTB had found her jointly liable with her ex-boyfriend for over $30,000 in rent arrears until months later, when the Landlord served her at her parents’ home. She was served at that time with a new civil claim, seeking the same arrears of rent, plus a million dollars in punitive damages.

3The LTB denied Ms. Magno an extension of time on the basis that she did not give a satisfactory explanation for the lengthy delay in requesting review.

4Respondent Naureen Lakhany (“Landlord”) asks this Court to dismiss the appeal. The Landlord also asks the Court to admit and review fresh evidence obtained from Ms. Magno at her examination in the civil suit.

5The Court declined to admit the fresh evidence because it related to the merits of the tenancy issue, not the issue on appeal.

6An appeal from the LTB on questions of law lies to the Divisional Court pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

7The issue before the court on this appeal is whether the LTB made an error of law in denying Ms. Magno an extension of time.

8For clarity, I will refer to the LTB decision and order of March 9, 2021, which found Ms. Magno liable to the Landlord for arrears of rent, as the “LTB Arrears Decision”.

9The LTB decision appealed to this court is dated June 14, 2023. It denied Ms. Magno’s request for an extension of time to request review of the LTB Arrears Decision. I will refer to this second decision as the “LTB Extension Denial” decision.

THE DECISION APPEALED FROM:

10By brief endorsement dated June 14, 2023, the LTB denied Ms. Magno’s request for an extension of time to file a request to review an order. The full decision is as follows:

The Tenants' request to extend time is denied.

The request does not give satisfactory explanation for the delay in requesting review of the March 19, 2021 order. The deadline to file a review of the order was April 18, 2021. The Tenant filed this request and received by the Board on June 9, 2023, meaning a delay of 812 days. In the request to extend time, the Tenant asserts she became aware of the judgement against her by the Landlord and Tenant Board on November 7, 2022 after being served the Statement of Claim. This request does not provide sufficient reasons for this delay of 214 days.

The assertion that the order is unfair to the Tenant and that the Tenant was unaware of the process and timeframe to request a review of the order is insufficient and not good cause to extend time. The Tenant failed to provide adequate explanation as to why the Tenant failed to file this request to extend time after 30 days as per rules 26.4 and 26.6.

Any party to an order should be entitled to rely upon its finality after the deadline to review it has passed. If the Board extends this deadline without being given any reason for the delay, the Landlord is denied their interest in finality for no reason other than the Tenant wishes it.

In the circumstance, the request to extend time must be denied.

APPELLANT’S MATERIALS SUPPORTING EXTENSION REQUEST:

11Ms. Magno’s request for an extension of time accompanied the filing of her materials in support of her request to review the Arrears Decision.

12Ms. Mango’s appeal materials contained extensive documentation supporting her contention that although she sometimes stayed overnight with Mr. Al-Khalani, she did not sign a lease with him and was not a tenant of the Landlord. Mr. Al-Khalani, she contends, “auto-signed” the lease in her name without her knowledge or consent, and even listed her child as his own (by changing the last name), in order to present himself as a prospective tenant “family” instead of a single student looking for housing.

13Ms. Magno’s evidence is that by the time of the LTB hearing, she was no longer involved with Mr. Al-Khalani. She did not know the Landlord was taking him to the LTB for rental arrears. The only contact number and email provided to the Landlord by Mr. Al-Khalani was his own.

14Ms. Magno’s materials include LTB documentation showing that Mr. Al-Khalani requested the LTB to conduct the arrears hearing in writing. It did so.

15The LTB Arrears Decision itself makes no separate reference to Ms. Magno nor to her participation in the written hearing. The LTB Arrears Decision does not refer to any position or evidence from Ms. Magno.

16It therefore does not appear that the Landlord, nor the LTB at the arrears hearing, contacted Ms. Magno nor took steps to confirm that her interests, as alleged co-tenant, were represented by Mr. Al-Khalani.

17Ms. Magno’s affidavit in support of her Request to Review describes that she only became aware of the Arrears Decision many months later, and only indirectly. It came to her attention when she was served at her parents’ home with a Superior Court civil action brought by the Landlord, naming her as a defendant. The claim sought damages for the rental arrears found owing by the LTB, and claimed a further one million dollars in “punitive, aggravated, and exemplary” damages.

18Upon being served with the civil claim, Ms. Magno retained counsel, who promptly obtained a copy of the LTB order. By that time she was already far beyond the LTB timeline to request a review of an order. The civil process was advancing, however, and she was then compelled to attend an examination in the civil action and did so in the following months.

19Ultimately Ms. Magno, with the help of her counsel, obtained a Superior Court order staying further enforcement by the Landlord pending determination of this appeal.

20Because this appeal is brought pursuant to statute, appellate standards of review apply: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at para. 37. Appeals to the Divisional Court are limited in this matter to errors of law.

21The LTB Extension Denial first notes that 812 days elapsed between the LTB order of March 19, 2021 and the request to review. The Member then calculates that of that period, 214 days elapsed between the date Ms. Magno “became aware” of the LTB judgment when served with the Landlord’s statement of claim, and the date she filed her extension request.

22In considering this period of 214 days, the LTB Extension Denial:

• Finds that Ms. Magno “does not provide sufficient reasons for this delay”;

• Characterizes her reasons for delay due to being “unaware of the process and timeframe to request a review of the [LTB] order”;

• Concludes that Ms. Magno did not give the LTB “any reason” to grant an extension other than “that [she] wishes it”, and that giving an extension would be inconsistent with the Landlord’s interest in finality.

ANALYSIS:

23As a starting point, I acknowledge that the granting an extension is a discretionary decision of a tribunal and is entitled to deference. That said, the tribunal must give reasons, even brief reasons, for its decision.

24Reasons for decision must address the central issues advanced in support of the extension request. A decision-maker’s failure to address evidence on a central issue prevents appellate review and constitutes an error of law: Elkins v Van Wissen, 2023 ONCA 789 at paras 67-72.

25In this case, the central issue raised by Ms. Magno is procedural fairness: that she did not received notice of the LTB hearing therefore could not adduce evidence and argument on her own behalf to show she was not a tenant of the Landlord.

26As referenced earlier, Ms. Magno’s evidence is that she had no knowledge of the LTB Arrears Decision until served with the Landlord’s civil claim, well past the time for requesting a review. Thereafter, she explained, further time was needed for her to retain a lawyer to defend the new million dollar claim. In the process of defending the claim she then sought and obtained a stay of the Superior Court process expressly on the basis that she was filing a request to review the LTB Arrears Decision.

27The LTB Extension Denial does not address Ms. Magno’s evidence on this central procedural fairness issue. Its analysis is restricted to the number of days elapsed from when Ms. Magno’s counsel obtained the Arrears Decision to when she filed her LTB materials.

28I find that the procedural fairness issue is not only the central issue in Ms. Magno’s application to the LTB, but lack of notice of the LTB arrears hearing and lack of receipt of the resulting Arrears Order from either the Landlord or the LTB is also consistent with her explanation of the reason for her delay.

29In these circumstances, the decision-maker’s failure to address this central issue in their decision prevents appellate review and therefore constitutes an error of law: Elkins v Van Wissen, supra.

REMEDY:

30Although a court on appeal may decline to send a case back where the outcome is inevitable and doing so would serve no useful purpose, it is generally appropriate remit the matter back to the decision-making body for reconsideration: Vavilov, at para. 141.

31In this case, the outcome is not inevitable: it remains for the LTB to determine whether Ms. Magno was accorded procedural fairness before the LTB Arrears order was made.

32In this case it is appropriate and expedient to grant the request for review and remit the LTB order of March 19, 2021 back to the LTB for determination whether Ms. Magno had notice of that proceeding and an opportunity to participate. This an issue of central importance to the integrity of any tribunal’s process, as an order made against a party entitled to notice, who does not receive notice, may be adjudged a nullity.

DECISION:

33The LTB Extension Denial is rescinded and the request for extension of time is granted. The Arrears Order is remitted back to the LTB for consideration as to whether Ms. Magno was accorded natural justice and had an opportunity to participate in the hearing before the Arrears Order was made against her.

COSTS:

34Counsel at the appeal agreed on the amount of costs to be ordered on the appeal: $7,500. I agree with that amount.

35In considering whether to order costs payable at this stage, I consider that Ms. Magno was successful in having the matter remitted to the LTB. In the circumstances, however, I do not consider the Landlord’s position on the appeal to have been unreasonable.

36Costs of the Appeal shall therefore ultimately be paid in the cause: that is, if Ms. Magno is successful in obtaining dismissal of the Landlord’s claim as against her, the Landlord shall pay her appeal costs of $7,500.

37Conversely, if the Landlord is ultimately successful, Ms. Magno shall pay her appeal costs of $7,500.

38So ordered.

McSweeney J.

Date: September 12, 2025

CITATION: Magno v. Lakhany, 2025 ONSC 5235

DIVISIONAL COURT FILE NO.: DC-23-0043-00