Court File and Parties
OSHAWA DIVISIONAL COURT FILE NO.: DC-24-1606
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT LEGINJ, Tenant/Appellant
AND:
FAISAL RAHMAN, Landlord/Respondent
BEFORE: The Hon. Mr. Justice R.E. Charney
COUNSEL: J. Schlemmer, Counsel for the Tenant/Appellant D. Jafari, Counsel for the Landlord/Respondent O. Filetti, Counsel for the Landlord and Tenant Board
HEARD: January 23, 2025
CASE CONFERENCE ENDORSEMENT
1This case conference relates to an appeal from the decision of the Landlord and Tenant Board (LTB) dated November 22, 2024. That decision related to a request by the Tenant to extend time to file a review request of a LTB consent Order dated September 6, 2024. The LTB denied the Tenant’s request for an extension of time to file a review request because it found that the Tenant had not provided a reasonable explanation for failing to file the review request within 30 days of the September 6, 2024 Order as required by Board Rule 26.4.
Procedural History
2By way of background, the parties were originally before the LTB on June 17, 2024, when the Landlord brought an application to terminate the tenancy and evict the Tenant for non-payment of rent. The Tenant sought to raise issues under s. 82 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), but the LTB held that the Tenant had not provided notice to the Landlord as required by s. 82(2) of the RTA. The Tenant was, however, permitted to raise issues to do with the withholding of heat, electricity and gas, and these were considered by the LTB.
3The LTB found that the rent was $1,650 per month, and that the rent arrears owing as of June 30, 2024, were $11,550. The Tenant did not contest the amount owing. The LTB granted the Tenant an abatement of rent in the amount of $1,519 plus ancillary damages for the period May 20, 2024 to June 17, 2024. The LTB’s final order dated July 3, 2024, provided:
The Tenant shall pay to the Landlord $10,000.00. This amount includes rent arrears owing up to the June 30, 2024, and the cost of filing the application, minus the rent abatement ($1,736.00) the Tenant is entitled to.
4Neither party appealed from this decision.
5The parties were next before the LTB on August 26, 2024. That proceeding was brought by the Tenant for an Order determining that the Landlord “substantially interfered with the reasonable enjoyment of the rental unit” and withheld or interfered with their vital services. The Tenant also applied for an order that the Landlord failed to meet his maintenance obligations under the RTA.
6The parties were able to settle all matters at issue in the application and requested a consent Order. Based on their joint submissions, the LTB issued the following consent Order on September 6, 2024:
a. The Tenancy between the Landlord and the Tenant is terminated as of November 30, 2024.
b. If the unit is not vacated on or before November 30, 2024, then starting December 1, 2024, the Landlord may file this order with the Court Enforcement Officer (Sheriff) so that the eviction may be enforced.
c. Upon receipt of this Order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord on or after December 1, 2024.
d. The Landlord agrees to waive the arrears of rent owing by the Tenant as ordered in order LTB-L-089724-23, issued on July 3, 2024.
e. If the Tenant vacates the rental unit on or before September 30, 2024, the Landlord shall pay to the Tenant the amount of $11,000.
f. If the Tenant vacates the rental unit on or before October 31, 2024, the Landlord shall pay to the Tenant the amount of $10,000.
g. If the Tenant vacates the rental unit on or before November 30, 2024, the Landlord shall pay to the Tenant the amount of $8,000.
h. The Landlord shall restore the hot water to the rental unit on or before September 6, 2024.
i. This order resolves all issues with the tenancy up to August 26, 2024.
7Neither party appealed this consent Order, nor could they. Section 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (CJA) provides that leave to appeal is required from a consent order. Section 133(a) states:
133 No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties;
8Section 133(a) applies to consent orders of the LTB: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at paras. 34-37; Ravadgar v. Kaftroudi, 2023 ONSC 5471, at paras. 11 to 19, and cases cited therein.
9Neither party sought leave to appeal from the September 6, 2024 consent Order.
10On November 21, 2024, nine days before the tenancy was to terminate, the Tenant brought an application to the LTB to review the September 6, 2024 consent Order.
11Although LTB decisions are final and binding, the LTB has the discretion to review a final order “where the order contains a serious error or a party was not reasonably able to participate in the proceeding”: LTB Interpretation Guideline 8; LTB Rules of Procedure Rule 26.
12Pursuant to the LTB Rules of Procedure, “a request to review an order must be made within 30 days of the order being issued”: Rule 26.4. “If the request is made more than 30 days after the order … was issued the requestor must also file a request for an extension of time and give reasons explaining the delay”: Rule 26.6.
13In the present case, the LTB dismissed the Tenant’s request for an extension of time on November 22, 2024, because the “Tenant did not provide a reasonable explanation” for the approximately 2.5 month delay. The LTB stated:
The RTE [request to extend time] states the delay is the result of the late discovery of “false/misleading information” given by the Landlord at the August 26, 2024 hearing. While the RTE further elaborates the Landlord has now breached the consent order, the purpose of the review process is not to provide parties with an opportunity of relitigating the issues in the hopes of a better outcome and accordingly, I am not satisfied the Tenant has provided a reasonable explanation for why the Tenant was not reasonably able to file the RTR until approximately 3 months after the hearing date. As such, the RTE must be denied.
14On December 17, 2024, the Tenant filed a Notice of Appeal of the November 22, 2024 LTB Order dismissing the Tenant’s request to extend the time to bring the request for review. The only issue in this appeal is whether the LTB erred in dismissing the request for an extension of time to bring a review request.
15The Tenant’s Notice of Appeal states:
In the present case the landlord consented to make a payment to the tenant which would enable him to pay first and last month’s rent on a new apartment and move out, as agreed to. The landlord refused to pay the money but indicated that he nevertheless intended to enforce eviction pursuant to the Order.
16It is immediately apparent that no such term appears in the LTB consent Order of September 6, 2024. The consent Order required the Landlord to pay specific amounts of money depending upon when the Tenant vacated the property. There was no obligation on the Landlord to pay any money before the Tenant vacated the property.
Analysis
17An appeal lies to the Divisional Court from a decision of the LTB, but only on a question of law: s. 210(1) of the RTA.
18The RTA does not give a right of appeal from an interlocutory order of the LTB: Delic v. Enrietti-Zoppo, 2022 ONSC 1627, at paras. 9 and 12; Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874; Shearer v. Oz, 2024 ONSC 1890, at para. 6.
19The Tenant takes the position that the November 22, 2024 LTB Order was a final order.
20While the issue was not addressed at this case conference, it is not clear to me that the Tenant is correct on this point. The test of whether an order is final or interlocutory is set forth in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675. The Ontario Court of Appeal stated [at p. 678 O.R.]:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.
21The Court of Appeal has confirmed this test numerous times. See, for example, Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144, at paras. 33 and 40:
An interlocutory order is an order which “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right”: Paulpillai Estate, at para 16, citing Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16, and Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, at p. 678. See also Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). As Middleton J.A. observed in Hendrickson, at p. 678, an order “may be final in the sense that it determines the very question raised by the [motion or application before the court] but it is interlocutory if the merits of the case remain to be determined.”
In any event, even if the practical effect of the order is, as HDI indicates, that the litigation will come to an end, this does not make the order a final order…
22The Order under appeal in this case is not a decision on the merits of the case or “the real matter in dispute between the parties”. It is a decision of the LTB not to grant an extension of time to file a request to review. Arguably, a decision on whether to grant an extension of time is akin to a decision on whether to grant leave to appeal, which is not subject to an appeal except in very limited circumstances: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 8.
23As indicated above, the issue whether the November 22, 2024 Order of the LTB was final or interlocutory was not raised by the parties during the case conference, but it is an issue that should be addressed when the appeal is heard.
24Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, chap. S-22, unless the court orders otherwise, there is an automatic stay of the eviction order pending the appeal to the Divisional Court. See also Rule 63.01(3) of the Rules of Civil Procedure.
25No rent has been paid since the LTB decision, and the rent arrears as of today’s date are $21,500, comprised of the $10,000 rent arrears ordered by the LTB in its July 3, 2024 Order, and an additional $11,550 ($1,650 X 7) owing since that decision. The Tenant remains in possession of the unit.
26In my direction to the parties on January 7, 2025, I advised:
A Zoom case management conference has been scheduled for January 22, 2025 at 9:00 a.m. The purpose of this case conference is to establish a timetable for the exchange of appeal material and to address any preliminary issues raised by the parties.
At the case conference the Tenant will be requested to confirm that he is up to date on rental payments and the court may make orders respecting payment of ongoing rent and rental arrears as a condition of continuing the stay pending appeal in this court.
27Notwithstanding the consent Order of September 6, 2024, the Tenant remains in the unit and has paid no rent since the LTB proceedings.
28The Tenant takes the position that, notwithstanding his failure to comply with the consent Order of September 6, 2024 to vacate the unit by November 30, 2024, the Landlord’s agreement to waive the arrears of rent ordered in the LTB Order dated July 3, 2024 means that the Tenant is no longer responsible for those arrears. The Tenant also takes the position that since his LTB application of August 26, 2024 sought a rent abatement, he should not have to pay his full rent pending the hearing of the appeal. In the meantime, he has paid no rent.
29The Tenant’s position must be rejected. The consent Order of September 6, 2024 was a package deal. The Landlord’s agreement to waive the arrears found in the July 3, 2024 LTB Order was clearly conditional on the Tenant vacating the unit by November 30, 2024. The Tenant failed to comply with that requirement and the arrears are now owing.
30It is also clear law that a tenant may not grant himself a rent abatement or unilaterally deduct expenses from his rent – rent is to be paid unless and until the LTB grants a rent abatement: Shearer v. Oz, 2021 ONSC 7844, at para. 13.
31As this Court stated in Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739, at para. 15:
The obligation to pay rent as it falls due is fundamental. Where a tenant has defaulted in rent obligations for a long time, this court will require the tenant to make rent payments and reasonable payments on account of arrears to maintain a stay of eviction pending appeal. The statutory stay is intended to preserve the court’s ability to do justice at the end of the appeal, not to enable a tenant to abuse the process of the LTB and the court to live rent-free for a long time. Appropriate terms for interim payment of rent and arrears will depend on all of the circumstances of the case – to allow tenants with good faith appeals, who intend to meet their rent obligations within a reasonable period, to preserve their tenancies – and to bring an end to failed tenancies that cause further loss to the landlord every month that goes by.
32In the circumstances of this case, given the amount of arrears owing, the statutory stay pending appeal must be lifted unless the Tenant pays at least part of the arrears and his monthly rent pending the appeal.
33Accordingly, I will make the following order:
34This Court Orders:
a. The Tenant shall pay the $10,000 arrears found owing on July 3, 2024 by February 26, 2025.
b. The Tenant shall pay his February 2025 rent ($1,650) by February 3, 2025.
c. Commencing March 1, 2025, the Tenant shall continue to pay his monthly rent on the first day of each month by 4:00 p.m., pending the hearing of the appeal.
d. The Tenant shall pay $5,775 representing 50% of arrears for July 2024 to January 2025 ($1,650 X 7 = $11,550 X 50% = $5,775) by March 26, 2025. This Order is without prejudice to the Landlord’s right to seek the full amount of arrears owing and without prejudice to the Tenant seeking an abatement of rent if the Tenant’s appeal is successful.
e. All payments must be made by 4:00 p.m. of the due date by certified cheque or e-transfer payable to DELARAM M. JAFARI, Barrister & Solicitor in Trust.
f. Failure to make any of the payments set out above will result in the stay of the enforcement of the eviction order being lifted.
g. If payment is not made in accordance with paras. (a) to (e) above, the Landlord may prepare and forward forthwith a draft order lifting the stay of the eviction order, in WORD format, for issuance.
35Since no transcripts are required for this appeal, the Tenant should have perfected the appeal within 30 days of filing the Notice of Appeal (Rule 61.09(1). That due date has already passed. If the Tenant intends to proceed with the appeal, he must perfect the appeal within 30 days of the date of this Endorsement. Once perfected, the parties may schedule a date before Triage Court for the purpose of scheduling a long motion before a single judge for the hearing of this appeal. Triage Court may be scheduled through Calendly at:
Calendly - Central East Civil Long Motions & Triage Court
Justice R.E. Charney
Date: January 27, 2025