Licence Appeal Tribunal File Number: 16152/NHCLA

In the matter of a Motion for an Order to extend the time to file an appeal under section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G of an administrative penalty order issued by the Registrar, Home Construction Regulatory Authority under the New Home Construction Licensing Act, 2017, S.O. 12017. C.33, Sched. 1.

Between:

Harjot S. Khehra

Appellant

and

Registrar, Home Construction Regulatory Authority

Respondent

AMENDED MOTION DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Maninder Mann, Counsel

For the Respondent:

Alex Alton, Counsel

Madhavi Gupta, Program Advisor Counsel

Heard by Videoconference:

August 22, 2024

OVERVIEW

1Harjot S. Khehra (the “appellant”) filed a motion seeking an extension of time to file an appeal of an administrative penalty order (“Order”) issued by the Registrar, Home Construction Regulatory Authority (the “respondent”) on July 11, 2024.

2It is undisputed that the appellant missed the deadline to appeal the Order by 12 days. The appellant submits that the motion for an extension should be granted because the justice of the case warrants an extension.

3The respondent opposed the appellant’s motion on the basis that the appeal has no merit and zero chance of success at hearing. Further, the appellant has not satisfied the test for an extension.

4The matter proceeded to a one-day motion videoconference hearing, where both parties filed factums in support of their position and made oral submissions.

ISSUES

5The issue to be determined is whether the appellant has established reasonable grounds to support an extension of time.

RESULT

6Based on the written and oral submissions before me at the hearing, I find the appellant has failed to establish reasonable grounds to support an extension of time and therefore the motion is dismissed. The appeal is dismissed.

ANALYSIS

7The Tribunal has jurisdiction to extend the time for filing an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12., Schedule G.

8Both parties agree that the criteria to consider in determining whether to grant an extension was set out in the decision of the Divisional Court in Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. The court ruled that, on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. The decision highlighted the following four factors which should be considered in determining whether an extension should be granted:

a. The existence of a bona fide intention to appeal within the appeal period;

b. The length of the delay;

c. Prejudice to the other party; and

d. The merits of the appeal.

9No single factor determines the analysis. The onus is on the appellant to establish that the justice of the case requires that the extension be granted.

The existence of a bona fide intent to appeal

10I find that there was no bona fide intention to appeal before the expiration of the appeal period.

11It is undisputed that the appellant missed the deadline to appeal the Order. The Order was issued on July 11, 2024, and the deadline to appeal was July 26, 2024. The appellant did not file his appeal until August 7, 2024, which missed the deadline to file an appeal by 12 days.

12The appellant argues that he had a bona fide intent to appeal the Order because he brought it to the attention of his counsel within the appeal period. However, his counsel was unable to review it and file an appeal because he was out of the office because his mother had been in the hospital in critical care in the last two weeks of July and was discharged on July 30, 2024. This was confirmed by hospital records. Counsel reviewed the Order on July 30, 2024, and contacted the assessor on August 2, 2024, to request an extension to file an appeal which was subsequently filed on August 7, 2024.

13The appellant submits that the fact that he brought it to his counsel’s attention during the appeal period signifies a bona fide intent to appeal within the appeal period. Further, he should not be penalized because counsel was unable address it due to an unforeseen family emergency.

14The respondent submits that the appellant has not submitted any evidence that he had a bona fide intent to appeal within the appeal period. Further, the appellant knew, or ought to have known, that he missed the deadline on July 30th (four days after the appeal period had expired) when his counsel first became aware of the Order. Further, his counsel was aware that the appellant missed the deadline on August 2, 2024, when counsel emailed the assessor, however, he waited an additional five days to file an appeal.

15I find the appellant has not established that he had a bona fide intention to file an appeal during the appeal period. First, the appellant received the order on July 11, 2024. There is no evidence before me about when the appellant provided a copy of the Order to counsel’s office or that he himself was not aware that he had 15 days to appeal the Order. Second, although I agree that counsel’s family emergency was outside of the appellant’s control, no explanation was provided for why counsel (despite being aware of the Order on July 30, 2024, and that the deadline to appeal had passed) waited until August 7, 2024 (one week later), to file an appeal. Although counsel reached out to the assessor on August 2, 2024, to request an extension, I find that there was no reasonable explanation for the additional delay. Further, I find counsel’s request for an extension from the assessor irrelevant as far as explaining the late filing of the appeal with the Tribunal. For these reasons, I am not satisfied that there was a bona fide intention to file an appeal within the required time period.

Length of the delay

16The appellant filed the notice of appeal 12 days after the 15-day period pursuant to section 77(2) of the New Home Construction Licensing Act, 2017, S.O. 12017. C.33, Sched. 1 (the “Act”). I do not find the delay significant. However, what I find to be an aggravating factor in this case is that counsel waited an additional week to file an appeal after realizing that the appeal period had lapsed. As noted above, no reasonable explanation was provided for the additional week delay in filing the appeal.

Prejudice to the other party

17The appellant submits that he will be greatly prejudiced should he be denied an extension to file an appeal because he is being deprived of the opportunity to defend the unfair penalty levied against him, whereas there is no prejudice to granting an extension to the respondent.

18The respondent submits that prejudice is presumed when a limitation period is missed. It relies on this Tribunal’s decision in 7853742 Canada Inc. o/a Mapleview Homes v. Registrar, Home Construction Regulatory Authority, 2021 CanLII 20992 where the adjudicator stated that there is a public interest in ensuring time limits are met and decisions have finality and are made in a timely way.

19I find that both parties will be prejudiced should an extension be granted because both parties will incur unnecessary costs in preparing for a hearing on a case which has no chance of success, which I will discuss now.

The merits of the appeal

20On a motion to extend time, the appellant need not establish their case on a balance of probabilities but only that their version of events, if believed, could reasonably result in a favourable outcome. I find the appellant has not presented grounds for appeal that disclose a reasonable chance of success should the appeal be allowed to proceed to a hearing.

21The facts which led to the Order issued by the Registrar are undisputed by both parties, which are set out below:

i) The appellant purchased a single-family preconstruction home located at 4 McCrae Crescent. On July 5, 2023, the title was transferred to the appellant. The home was never occupied.

ii) On July 23, 2023, the appellant listed the property for sale and acted as “vendor” of 4 McCrae Crescent and sold the property without a vendor licence on October 18, 2023, in contravention of s. 37(1) of the Act.

22In the notice of appeal, the appellant raised the following two grounds contesting that he acted as a vendor:

i) That he acted in his personal capacity, not as a business when he sold the property and as a result the Act does not apply to his actions; and

ii) That he had an absolute intention to occupy the property with his spouse when he entered the pre-construction agreement. However, due to a breakdown in their relationship, it was no longer feasible to occupy the property as a principal residence.

23The respondent submits that neither of the above grounds have any chance of success should the appeal be allowed because there is no question that the appellant acted as a vendor. I agree for the following reasons.

24First, section 37(1) of the Act provides that no person shall act or hold oneself out as a vendor, offer to sell or transfer a new home, including as prescribed, or sell or transfer a new home, including as prescribed, unless the person is licensed as a vendor and meets the other prescribed requirements, if any. A vendor is defined under the Ontario New Home Warranties Plan Act (“ONHWPA”) as a person who, on the person’s own behalf, sells a home not previously occupied to an owner. I find the facts of this case clear. The appellant has conceded that he never occupied the new home, and he has never been licensed as a vendor.

25Second, the appellant has not directed me to any authority to support that the Act distinguishes between a person acting in their own personal capacity as a vendor as opposed to operating as a business. The respondent submits that the Act defines a person as “a natural person, corporation, partnership, sole proprietorship, association or other prescribed person or entity”. Further, s. 37(1) specifically refers to a “person”, it states “No person shall act or hold oneself out as a vendor.” I find a plain reading of both s. 37(1) of the Act and the definition of vendor outlined in the ONHWPA does not distinguish between the two. As a result, I find the appellant has no chance of success on this ground. Nor has the appellant relied on any case law on this motion hearing which supports that this Tribunal, or the courts have considered “an intention to occupy a property” as a defence, in considering whether an administrative penalty should be overturned. While I empathize with the appellant that he was going through a difficult time in life or that he did not knowingly contravene the Act when he carried out the transaction, he has not directed me to any authority to support that the merits of his appeal have a reasonable chance of success should it go to a hearing.

26In contrast, the respondent directed me to s. 76(9) of the Act which limits the defences available to an administrative penalty. That section states that imposing an administrative penalty against a person applies, even if: (a) a person took all reasonable steps to prevent the contravention to which the order is based; or (b) at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts that, if true, would have rendered the contravention innocent. The respondent submits that there was nothing stopping the appellant from applying for a license to be a vendor prior to selling the property and there was no urgency. The respondent also relied on the Ontario Court of Justice’s decision in Tarion Warranty Corp v. Dhakal, [2011] O.J. No. 3342 which dealt with a similar set of circumstances where the owner of a property acted as a vendor of a new home which had not been occupied without being registered. The Court flatly rejected “the intention to occupy argument” in its decision.

27Finally, the respondent relies on the Court of Appeal’s decision in Sabatino v. Posta Ital Bar Inc., 2022 ONCA 2018, where the court denied a motion for an extension solely on the appeal’s merit. I find that based on the facts of this case, the appellant has not convinced me that the appeal has any chance of success should the matter proceed to a hearing.

28Having considered the criteria established in Manuel and s. 7 of the Licence Appeal Tribunal Act I am not satisfied that the justice of the case requires that an extension of time be granted in the circumstances of this case.

ORDER

29For the above-noted reasons, the appellant’s motion for an extension of time to file an appeal is dismissed. The appeal is dismissed.