Court File and Parties
DIVISIONAL COURT FILE NO.: 190/19
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: VICTOR Kwong and Joyce Kwong, Appellants
AND: PINEDALE PROPERTIES LIMITED, Respondent
BEFORE: Shore, J.
COUNSEL: Emma Ryman, (Amicus), for the Appellants Kristin Ley, for the Respondent
HEARD at Toronto: February 5, 2026
ENDORSEMENT
1The Appellant Tenants brought a motion to extend the time for perfecting this appeal. At the end of the Appellant’s submissions, I dismissed the motion, without needing to hear from the Respondent, with reasons to follow. The parties made submissions on costs. These are my reasons for dismissing the motion and the order for costs.
Background:
2In February 2018, the Landlord applied for an order to terminate the tenancy based on claims that the Tenants had excessive pigeons and pigeon droppings on their balcony and were denying the Landlord entry to inspect, thereby impeding the Landlord from complying with an order from the City of Toronto to keep the Tenants’ balcony in clean and sanitary condition and free of pigeons.
3The hearing was scheduled on five different dates, the first four were all cancelled by the Tenants. The Tenants also requested accommodations. While some of the Tenants’ requests for accommodations were met, some of their requests were denied. The Tenants did not provide any medical evidence that supported their accommodation requests.
4The hearing finally proceeded on October 15, 2018, but had to be adjourned because of lack of time to complete the hearing. A handwritten order was issued on October 15, 2018, requiring the Tenants to allow the Landlord access to the rental unit to observe and photograph the balcony.
5On December 20, 2018, the Landlord’s case was completed. The Tenants were asked to provide their unavailable dates for the continuation of the hearing, which would be scheduled for January or February 2019. The Tenants advised that they were not available for January, February or March. Finding the request unreasonable, the Board ordered the next hearing to be set on the basis of the Landlord’s availability.
6The Tenants again requested an adjournment, but this request was denied. The matter was scheduled to continue on February 13, 2019.
7On February 12, 2019, the Tenants again requested an adjournment. The request was again considered and denied. The Tenants did not attend the hearing on February 13th. The hearing proceeded in their absence.
8On February 19, 2019, the LTB ordered that the Tenants must move out by March 31, 2019, and pay the Landlord costs of $190.00.
9The Tenants sought a review of the order, claiming it was an error not to grant the adjournment. In their review decision, dated March 27, 2019, the LTB concluded as follows:
In the absence of a reliable indication that Mr. K was unable to appreciate and participate in the proceedings prior to February 13, 2019 and having regard to the fact that the Tenants early on in the proceedings indicated a need for legal representation to obtain an adjournment but afterwards did not bother to obtain that assistance, and not having raised the need for legal representation until the eve of the continuation of the third afternoon of hearings, I find the request on February 12, 2019 for adjournment for legal representation was not made in good faith and the Tenants have not established that there was a serious error by not adjourning the continuation of the hearing and proceeding in their absence on February 13, 2019.
Accordingly, I find the request for review does not support a conclusion that there might be a serious error in the order or that a serious error occurred in the proceedings.
10On April 1, 2019, the Tenants filed a Notice of Appeal from the LTB order dated February 19, 2019, and the review order dated March 27, 2019, alleging errors of law and denial of procedural fairness.
11Other than ordering transcripts on April 25, 2019, the Tenant took no other steps to perfect the appeal. There is some indication that the Tenants communicated with Divisional Court staff in 2024, but no evidence was filed.
12On June 5, 2025, the Registrar of the Divisional Court issued a Notice Dismissing Appeal on June 27, 2025, if the appeal was not perfected.
13The Tenants brought this motion for an order extending the time for them to perfect the appeal. They are asking for a one-year extension.
The Law and Analysis:
14The test on a motion to extend time is well-settled: see for example, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The overarching principle is whether the “justice of the case” requires that an extension be given. While each case depends on its own circumstances, in deciding whether the justice of the case warrants the extension of time, the court is to consider all relevant considerations, including:
a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
b) the length of, and explanation for, the delay in filing;
c) any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay;
d) the merits of the proposed appeal; and
e) whether the “justice of the case” requires it.
15The test is somewhat modified when the issue is a delay in perfecting an appeal, as opposed to extending the time for the service of a notice of appeal. The test as applied in the context of this case is set out below.
Bona Fide intention to appeal:
16The first part of the test is whether the appellant maintained the intention to appeal within the relevant time. The Tenants did not file any evidence demonstrating any attempts to perfect their appeal or to take any action to move this matter forward in over 6 years other than an indication that there were some communications with the Divisional Court office in 2024. I do not find that they maintained an intention to appeal.
17It is in the Tenants’ interest to delay the hearing of the appeal, because of the automatic stay of the eviction order pending appeal. This is likely the rationale for not taking any action until forced to move forward with the appeal. However, this is not the same as having a bona fide or good faith intention to appeal.
Length and explanation for delay:
18Under this second part of the test, I must consider whether the appellant provided a reasonable excuse for the delay and the length of the delay.
19I do not find that the Tenants provided a reasonable excuse for the delay. None of their explanations are supported by the evidence nor do they properly explain why the Tenants did not take any significant steps to perfect their appeal over the past 6.5 years.
20The Tenants submit that the COVID-19 pandemic interfered with their ability to move their appeal forward. The Courts were open for business for all but the first week of the COVID-19 pandemic. The Tenants did not explain how COVID prevented them from perfecting their appeal. Further, even if COVID may have been an excuse for a year or two, it was not an excuse for the remaining 4.5 years.
21The Tenants also submit that there were problems with the transcripts. The transcripts were ordered in April 2019. The evidence before this Court is that the Tenants then waited until February 3, 2026, just days before the motion, to contact the transcriber and failed to explain the nearly 7-year gap in following up on the transcripts.
22The Notice of Dismissal was sent in the beginning of June 2025. While the Tenants have requested an additional year, eight of the twelve months have already passed, and they are still requesting a further year.
23The Tenants provided a letter from Dr. Fischer, the director of the Memory Disorders Clinic at St. Michael’s Hospital, dated September 24, 2024, requesting that the Tenant be given another year to prepare his appeal material. Well over a year has passed, and the appeal has still not been perfected.
24The Tenants are asking for a further year extension. The Tenants filed another letter from Dr. Fischer, dated November 12, 2025. The pertinent part of the letter provides:
Based on our assessment we believe he is suffering from a medical condition associated with impaired cognitive performance and multisensory symptoms that is likely the result of a prior sustained head injury which occurred in 2015. His symptoms are further complicated by concussion, small vessel disease and sleep apnea. His cognition remains largely unchanged with a MoCA of 25/30.
25The letter then simply asks the Court “to bear this in mind when rendering a decision in regards to accommodations”. It does not provide details of the cognitive impairment, it does not provide reasons for the further year delay, and it is scant compared to the medical evidence usually required by this Court: Mohammad v. OLRB and McMaster University, 2025 ONSC 2224 (Div. Ct.), at paras. 23-25; see also Massoumi v. Bafas, 2019 ONCA 536, at paras. 3-5.
26Even if I were to accept the letter from the doctor as evidence that the Tenants needed more time, it does not explain the delay and the lack of any action by the Tenants to move the appeal forward in over 6.5 years. Further, the Tenants were able to put together coherent and well-organized material for their motion to extend, without offering any reason why that same effort and ability could not be used to advance and perfect their appeal in the past 6.5 years.
27The Tenants have not adequately explained why they have done nothing for the bulk of the past 6.5 years or why another full year is required.
Prejudice:
28On the issue of prejudice, I find that the Landlord and the other tenants have been prejudiced by the delay, in a manner that cannot be compensated for by way of costs. An order was made by the City of Toronto in 2018, to keep the Tenants’ balcony floor in a clean and sanitary condition, and to keep the balcony and dwelling unit free of pigeons. Since that time, the Tenants have not permitted the Landlord to attend to their balcony.
29Since 2018, the Tenant has continued to interfere with the reasonable enjoyment of the lawful right, privilege or interest of the Landlord and other tenants. This cannot be compensated for by costs. The evidence before the Court is that the Tenants continued to deny the pest control service access to their apartment at least up to the date of filing submissions for this motion.
Merits of the Case:
30The fourth factor to consider are the merits of the appeal. There is a very low threshold for this test. The question is whether the appeal has so little merit that the court could reasonably deny the important right of appeal.
31The Tenants focused on two grounds:
32The first is that the LTB made an error in law with respect to voiding the N5. An N5 is void if the tenant corrects the offending conduct within 7 days. The Tenants submit that the LTB erred in finding that the N5 was not voided, because it was based on no evidence.
33The finding of the LTB provides as follows:
- The N5 notice was served pursuant to section 64 of the Residential Tenancies Act, 2006 ("the Act”). That section provides that the notice of termination is voided if the tenant stops the offending conduct during the seven days following the service of the notice. I accept the unopposed evidence of Landlord that the Tenant did not correct the problem within the seven day voiding period, and the behaviour has continued. (emphasis added)
34It is difficult to find that the decision was made on no evidence, when the Board said there was unopposed evidence from the Landlord. The Tenants submit that if they had the transcript if would show that there was no evidence. This argument is very weak, at best.
35The second ground is that they were denied procedural fairness. Specifically, the Tenants submit that they were provided with inadequate accommodations and denied adjournments.
36Para. 6 of the LTB decision provides:
While the Tenants have claimed the need for accommodations to address barriers during the hearing, the Board has determined by way of endorsement that the Tenants have not established that the accommodations they seek are necessary. The Board has continued to facilitate the participation of the Tenants in the hearing, but this has not been an acknowledgement of any disability on the part of the Tenants.
37The Tenants submit that Mr. Kwong was ill before the date of the hearing because of pesticide use in the building. He submits this explains why he was unable to attend on other dates. The Tenants did not file any evidence to support this position.
38The LTB provided multiple accommodations for the Tenants' disabilities, including afternoon hearings, an interpreter, captioning, and breaks (as did this Court). Interpreter and transcription services were also present for the Tenants on the final hearing day. The LTB's decision to deny adjournment requests, particularly those made at the last minute without sufficient justification, is an exercise of its discretion to control its own process, which is entitled to deference.
39In this case, I cannot conclude that the appeal has no merit, but certainly the merits are weak, at best.
Justice of the Case:
40The last factor to consider is the justice of the case. The court is required to consider and weigh all the relevant factors to determine an order that is just in the circumstances. The overriding objective is to arrive at a result that balances the parties’ interest in deciding matters on their merits, rather than terminating rights on a procedural ground, and the public’s interest in the timely resolution of disputes.
41The delay is over 6 years, and the appellants have not adequately explained the lengthy delay. The merits to their appeal are weak, at best. I find the Landlord and other tenants to be suffering prejudice by the delay, that cannot be compensated for in costs. Finally, I have considered that all of these proceedings arise from the Tenants’ refusal to grant the Landlord access to their balcony, to try to get rid of the pigeons and to get rid of the pigeon poop, as ordered by the City of Toronto. The Tenants have not offered any viable reason why they have denied and continue to deny the Landlord access for this purpose. The Landlord is entitled to a final resolution after so many years.
42In my view, and in considering the factors above, the interests of justice in this case do not support extending the time to perfect the appeal and therefore I would dismiss the appeal.
Costs:
43Both parties made submissions as to costs. As the successful party the Landlord is entitled to their costs. They requested $2,500, which I find reasonable having regard to the material filed, the issues on the motion, the time spent and the attendance in Court for the motion.
44The Tenants submit they cannot afford to pay the costs. This does not insulate them from costs. I have reduced the costs in light of this consideration.
45I find the Appellant Tenants shall pay the Respondent Landlord cost of the motion in the sum of $2,000 inclusive, within 30 days.
Order:
46This Court orders that:
a. The Appellants’ motion to extend the time to perfect the appeal is dismissed. As such, the appeal is dismissed for delay.
b. The Appellants shall pay the Respondent costs of the motion in the sum of $2,000 inclusive, payable within 30 days.
Shore, J.
Date: February 9, 2026