Court of Appeal for Ontario
DATE: 20230725 DOCKET: COA-23-OM-0196
Gillese J.A. (Motion Judge)
BETWEEN
Raymond Faraone and Julie Faraone Applicants (Responding Parties)
and
285 Spadina SPV Inc., Ronald Hitti, Raja Farah, and Edouard Hitti Respondents (Moving Party)
Counsel: Ronald Hitti, acting in person Adam Zweig, for the responding parties
Heard: July 24, 2023
Endorsement
[1] Ronald Hitti is a tenant under a residential lease in a property owned by the responding parties. He brings this motion (the “Motion”) for an extension of time to file a notice of appeal from the order of Dineen J. dated February 15, 2023 (the “Order”).
[2] The monthly rent for the leased premises was initially $8,400 per month and later raised to $8,500. Although there are other tenants named on the lease – Mr. Hitti’s mother and brother and a corporation under his control – only Mr. Hitti actually resides in the leased premises. Mr. Hitti began withholding rent in April of 2021 and has paid no rent at all since February of 2022.
[3] The responding parties brought an application to end the tenancy agreement and obtain arrears of rent in excess of $115,000. The Order gave the relief sought: the tenancy agreement was terminated/set aside; the tenants were required to give up possession of the leased premises by March 17, 2023; and, judgment for the arrears plus costs of approximately $13,700 were ordered in favour of the responding parties.
[4] Mr. Hitti has been attempting to appeal the Order since it was issued. He brought an appeal to the Divisional Court and various motions in the Superior Court. He has now concluded that an appeal lies to this court, hence this motion.
[5] The factors to be considered when determining whether to grant an extension of time to file a notice of appeal are well-known:
- whether the moving party formed an intention to appeal within the relevant period;
- the length of, and explanation for, the delay;
- whether the responding party would suffer prejudice as a result of the delay; and
- the merits of the proposed appeal.
[6] However, the overarching principle is whether the justice of the case requires that the extension be granted. See e.g., Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16.
[7] Given Mr. Hitti’s actions since the Order was made, I am satisfied that he formed the requisite intention to appeal and maintained it throughout. I am also satisfied with Mr. Hitti’s explanation for the delay in filing a notice of appeal with this court. It is clear that Mr. Hitti was not the only person in this matter who was confused about which court – the Divisional Court or the Court of Appeal – had jurisdiction to hear the appeal.
[8] Whether there is prejudice to the responding parties that cannot be remedied in costs or addressed through a security for costs motion is debatable.
[9] However, I need not decide the matter of prejudice because, in my view, the justice of the case weighs against granting the extension of time. Two considerations are dominant in my reasoning on this matter.
[10] First is the lack of merit of the proposed appeal. The essence of Mr. Hitti’s proposed appeal is that the Superior Court lacked jurisdiction to grant the application and that it amounted to an abuse of process. As the application judge noted in his reasons for decision, this court’s decision in Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, is a full answer to that contention. There is no question that the Superior Court had the jurisdiction to hear and decide the application.
[11] To the extent that Mr. Hitti also seeks to challenge the validity of the application judge’s decision to refuse to consider his late filed materials, I also see that as meritless. His late filing was in direct contravention of the explicit, peremptory timetable established by Koehnen J.
[12] Second is Mr. Hitti’s conduct. On the findings of the application judge, Mr. Hitti’s late filed materials were a “blatant delay tactic to enable him to continue living rent-free in the property”. The application judge also found that Mr. Hitti had advanced no reasonable basis to reside in the property or resist the responding parties’ lawful termination notices. Mr. Hitti has continued to remain in possession of the leased premises since the Order was made and continues to pay no rent. In the circumstances, his conduct is also a factor for consideration in the justice of the case and it weighs strongly against granting him the indulgence that he seeks.
[13] For these reasons, the Motion is dismissed with costs of $3,500, all inclusive, to the responding parties.
“E.E. Gillese J.A.”