COURT FILE NO.: DC-04-072553-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, CHAPNIK and DONOHUE, JJ.
B E T W E E N:
VICKY TAYLOR Applicant Respondent on the Appeal
- AND -
GERD REISENECKER Appellant on the Appeal
Counsel: Robert Trifts for the Respondent David Strashin for the Appellant
Heard at Newmarket: September 11, 2006
ENDORSEMENT
[1] This is a Notice of Motion which comes before us as a result of the Registrar of the Divisional Court here referring the matter to us by an endorsement dated September the 8th. That motion was brought on behalf of the Tenant/Respondent in appeal for an order pursuant to Rule 61.13(1) dismissing the appeal for delay for failing to serve and file proof that the transcript of the proceedings before the Ontario Rental Housing Tribunal was ordered within the time prescribed by Rule 61.05. The motion has proceeded before us on the general grounds of delay, the transcript having been recently obtained by the Landlord/Appellant.
[2] The appeal concerns a ruling of the Ontario Rental Housing Tribunal, wherein that Tribunal held that a lease between the Appellant/Landlord and the Respondent in appeal of the dwelling was a lease to which the Tenant Protection Act 1987 applied. That decision was made August 19th, 2004.
[3] It should be remembered, for the purposes of this motion, that the legislation forming the Ontario Rental Housing Tribunal and the procedures thereto, are required to be a summary type of procedure, so that tenants and landlords can obtain relief in a relatively speedy fashion.
[4] In this case, a Notice of Appeal was served and filed August 24th, 2004. The Landlord/Appellant took no further steps with the appeal until December of 2005. An amended Appellant Certificate respecting evidence was served by mail on or about December 29th, 2005. This contrasted with the original Appellant Certificate respecting evidence, which was necessary for the formalization of the initial appeal.
[5] After being served with the appended Appellant Certificate respecting evidence, the Respondent/Tenant retained counsel who then filed a Respondent’s Certificate respecting evidence within the time required by Rule 61.05(2). That Certificate required the Landlord to obtain the transcript of the proceedings for use by the Divisional Court at the hearing of the appeal.
[6] Notwithstanding that Certificate, the Landlord filed this appeal book, compendium and Factum, and purported to affect the appeal without ordering the transcript.
[7] It was noted on February 17th, 2006 that the Respondent’s Certificate respecting evidence had been served within the time limit required by the Rules and was effective. As a result, the appeal was removed from the March, 2006 sittings to permit the Landlord to obtain a transcript in order to perfect the appeal. At the time that the motion was served, the Landlord had neglected or refused to order the transcript of the proceedings before the Ontario Rental Housing Tribunal.
[8] Since that time the transcript has been obtained and the matter came on before the Registrar to deal with the matter of the late filing of the transcript, the change in Certificate and so on. Not without surprise, the Registrar referred that to the Court which was to deal with the matter in the immediate future.
[9] The transcript was received by the Respondent/Tenant on August the 30th, 2006. It was apparently ordered August 22nd, 2006. There was as well a recent Affidavit of the Respondent/Tenant casting some doubt on the service of the Appellant’s material upon her, which was apparently a service upon a Michael Watt at 4461 Ganaraskas Road, on December 29th, 2005.
[10] The house in question here had been severely damaged by fire October 20th of 2004, by arson, to the knowledge of both of the parties. Since the time of the fire, the material discloses that the Appellant/Landlord told the Respondent/Tenant he was terminating the lease. He sold the property to someone else, despite the Tenant’s alleged right of first refusal, and whatever rights she still had with the balance of the proceedings before the Tribunal.
[11] Rule 61.04 indicates:
“That an appeal shall be commenced by serving a Notice of Appeal, together with the Certificate required by Rule 61.05(1) on every party.”
Rule 61.05(1) indicates:
“In order to minimize the number of documents and the length of transcript required for appeal, the Appellant shall serve with the Notice of Appeal the Appellant’s Certificate respecting evidence, setting out the portions of the evidence that in the Appellant’s opinion are required for an appeal.”
Subrule 61.05(2) indicates:
“Within 15 days of service after the Appellant’s Certificate, the Respondent shall serve on the Appellant a Respondent’s Certificate respecting evidence (Form 61D) confirming the Appellant’s Certificate, or setting out any additions or deletions from that.”
Subsection (5) is relevant:
“The Appellant shall, within 30 days after filing the Notice of Appeal, file proof that the Appellant has ordered a transcript of all oral evidence that the parties have not agreed to admit, subject to any direction under subrule 61.09(4) (relief from compliance).”
[12] Time for perfecting appeal, found in 61.09(1):
“The Appellant shall perfect the appeal by complying with subrules 2 and 3:
(a) where no transcript of evidence is required for the appeal within 30 days after filing the Notice of Appeal; or
(b) where a transcript is desired for the appeal within 60 days after receiving notice that the evidence has been transcribed.”
[13] There are two remedies which are generally applied in motions such as this. One is to allow the matter to proceed and impose sanctions against an Appellant for the delay, and the different requests in regard to a transcript. That type of case is illustrated in Sedigh v Lange, 2001 52 O.R. (3d) 514, a decision of the Court of Appeal, where there were financial sanctions against an Appellant who had ordered the trial transcripts, but without leave of the Court later requested the Court Reporter to stop preparing the transcripts.
[14] The Divisional Court in Valiquete v Vandelac 1979, 9 C.P.C. 2003, dismissed an appeal where the Appellant decided to proceed with the appeal after countermanding the ordering of evidence in circumstances indicating a devious manoeuvre.
[15] It is necessary in this case to assess and balance the rights of each party in relation to what has gone before. The evidence before us discloses that the Tenant/Respondent was unable to proceed before the Tribunal with her claim for relief as a Tenant, because of a filing of the appeal dealing with the nature of the tenancy. With the passage of time, it is disclosed to us that she is now the owner of the property.
Within the material before us as well it is indicated that before the sale of the property in question to a third party, the Landlord/Appellant apparently as well received the insurance for the residence in question.
[16] There has been a substantial delay in this matter. There have been attempts to have the matter dealt with by the Registrar on two occasions. There have been two appearances before separate panels of the Divisional Court, and at the present time, it has been indicated by counsel that the Respondent, due to the late filing of the transcript, would require an adjournment on this occasion to prepare responding materials. The Respondent has, up to now, relied upon the delay and the failure to order the transcript to obtain success in dealing with the appeal.
[17] It is perhaps unfortunate that in these circumstances the matter did not proceed before the Tribunal, so that the whole matter could have been dealt with in one appeal on all of the merits between the parties. It is understandable that the Tribunal, standing by itself, declined to proceed out of caution in the circumstances.
[18] The delay in this matter has been excessive, considering, as I indicated, that the Act and the formation of the Tribunal were an attempt by the Legislature to formulate a speedier and more certain result in disputes between landlords and tenants. Obviously, there has been a substantial change of circumstances, including the loss of the residence, the change of ownership, and many other items which certainly would ordinarily cause difficulties in the processing of the Tenant’s claim for whatever relief she desires under the Act.
[19] Balancing the interests of both parties, in the circumstances, and keeping in mind that it may well be said with hindsight that this matter should not have proceeded separately as an appeal, it can be said that the actions which have led to a two year delay to date, with no end in sight, were all those of the Landlord/Appellant.
[20] In the circumstances then, the motion is allowed. The appeal is dismissed.
[21] As you know, it is our duty, if we can to fix costs. Because we are a transitory Tribunal, we found that it’s better to do so if we can, rather than to do so by written circumstances. In all the circumstances, we think that $2,000.00 costs inclusive of GST and disbursements is a fair amount.
MEEHAN J.
CHAPNIK J.
DONOHUE J.
Released: September 28th, 2006
COURT FILE NO.: DC-04-072553-00 DATE: 20060911
ONTARIO DIVISIONAL COURT SUPERIOR COURT OF JUSTICE Newmarket, Ontario
B E T W E E N:
VICKY TAYLOR Applicant (Respondent on Appeal)
- and –
GERD REISENECKER Respondent (Appellant on Appeal)
ENDORSEMENT
MEEHAN, CHAPNIK, DONOHUE, JJ.
Released: September 11th, 2006