Court of Appeal for Ontario

Date: 2019-07-02 Docket: M50565 Motions Judge: Brown J.A.

Between

Louis Lafontaine Appellant (Moving Party)

and

Alanna Grant Respondent (Responding Party)

Counsel

Alex Battick, for the moving party

Robert Sheppard, for the responding party

Heard: June 27, 2019

Reasons for Decision

[1] The moving party, Louis LaFontaine, seeks an extension of time in which to file a motion for leave to appeal from the order of the Divisional Court dated April 11, 2019. That order dismissed his appeal from an April 18, 2018 decision of the Landlord and Tenant Board (the "Board"), which ordered him to pay the respondent, Alanna Grant, $4,885.19.

[2] The test applicable on a motion to extend the time to appeal is set out in Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 14. The governing principle is whether the "justice of the case" requires that an extension be given. To that end, courts consider four factors, as applied to the circumstances of the case, together with the overall interests of justice.

[3] In the present case, there is no dispute that Mr. LaFontaine formed the intention to seek leave to appeal within the prescribed period of time and has a reasonable explanation for his delay. Prejudice is not a factor. The factor in contention is the merits of Mr. LaFontaine's motion for leave to appeal.

[4] Mr. LaFontaine did not file a copy of the Board's order or reasons with his material. However, there is no dispute that the issue before the Board was whether the living accommodation that he was renting to Ms. Grant fell within the exemption set out in s. 5(i) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "RTA") in respect of "living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouse's child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located."

[5] As described by the Divisional Court in its brief endorsement, 2019 ONSC 2321, at paras. 1 and 2:

The Appellant is the landlord of 339 Van Kirk Drive in Brampton. The Respondent lived in a room at the property for a period of time. She brought an application under the Residential Tenancies Act, 2006 for damages arising from what she alleged was an infestation of bed bugs. A hearing date was set before the Landlord and Tenant Board. The Appellant did not attend, but instead sent a letter to the Board in which he submitted, among other things, that the Board had no jurisdiction to consider the application because the property is exempt as a shared accommodation where temporary guests reside and occupy common areas and have only a separate bedroom. He indicated in his letter that the Board had previously determined that his property was exempt.

At the hearing, the Board questioned the Respondent on the issue of exemption. The Board determined that on the evidence before it, the Respondent was not required to share either the kitchen or the bathroom with the Applicant as required for the exemption in section 5(i) of the Act to apply. The Board found as fact that the Applicant had his own kitchen and bathroom in the basement. Having found that the exemption did not apply, the Board ruled in favour of the Respondent and ordered payment of $4,885.19.

[6] The Divisional Court noted that s. 210 of the RTA restricts the right to appeal from the Board to questions of law. The Divisional Court dismissed Mr. LaFontaine's appeal on the basis that it did not raise a question of law. Instead, that court stated that Mr. LaFontaine was challenging the findings of fact made by the Board: "[H]e disagrees with the Board's finding that he has his own kitchen and bathroom in the basement, and he disagrees with the finding that the Respondent was not required to share any such facilities with him."

[7] From the materials filed by Mr. LaFontaine on this motion, it is apparent that his quarrel with the Board's decision at most raises a question of mixed fact and law – namely, whether the particular configuration of his rental accommodation brought it within the exemption in s. 5(i) of the RTA. The limited right of appeal available under s. 210 of the RTA leads me to conclude that there is little merit to Mr. LaFontaine's proposed appeal of the Divisional Court's order. In those circumstances, I do not see that the justice of the case requires granting Mr. LaFontaine an extension of time to file a motion for leave to appeal.

[8] Mr. LaFontaine's motion for an extension of time is dismissed.

[9] The respondent is entitled to her costs of this motion fixed in the amount of $750, inclusive of disbursements and applicable taxes, payable within 15 days of this order.

David Brown J.A.