COURT FILE NO.: 304/05
DATE: 20070711
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. MACDONALD, DAMBROT AND SWINTON JJ.
B E T W E E N:
MOHAMED NEMMOUR
Tenant
(Appellant)
- and -
LUCY WIELAND
Landlord
(Respondent)
In Person
No One Appearing, for the Landlord (Respondent)
HEARD at Toronto: July 11, 2007
DAMBROT J.: (Orally)
[1] This is a motion to set aside the order of Chapnik J., setting aside the appellant’s Certificate of Perfection of his appeal from a decision of the Ontario Rental Housing Tribunal and dismissing his appeal.
[2] With respect to the first issue, we are of the view that there is no basis to set aside the order of Chapnik J. setting aside the appellant’s Certificate of Perfection, which was filed beyond the time permitted in the order of Greer J., dated November 28, 2005.
[3] The appellant had moved to extend the time for perfection. That motion had been adjourned and was dropped from the list after the appellant improperly filed the Certificate of Perfection. Consequently, the respondent was entitled to the order of Chapnik J. to set aside the Certificate of Perfection.
[4] With respect to the second issue, the order dismissing the appeal, Chapnik J. granted this order, according to her endorsement, because the appeal had not been properly perfected. In her reasons she stated, in addition, that it appeared to her that the appeal had little or no merit.
[5] In dismissing the appeal on the basis that it had not been properly perfected, Chapnik J. did not take into account that the appellant’s motion to extend time to perfect had been adjourned and not yet determined.
[6] The issue for us however, is not whether this reasoning is wrong, but rather whether the order is wrong and should be set aside.
[7] We have reviewed the entire Divisional Court file, including the reasons of the Ontario Rental Housing Tribunal. This Court’s jurisdiction, pursuant to s.196 of the Tenant Protection Act, is restricted to questions of law alone. The decision of the Tribunal was based on the appellant’s failure to present “sufficient evidence to demonstrate on the balance of probabilities the various grounds for his applications. In particular, he could not show that he was entitled to any of the services which he claimed as part of his tenancy agreement.”
[8] This disposition is based entirely upon factual issues, particularly the assessment of the appellant’s credibility. We have also reviewed the issues intended to be raised on the appeal as set out in the appellant’s factum, filed February 13, 2006, as part of his purported perfection of the appeal. None of these issues raises a question of law alone.
[9] In view of this Court’s limited and specific jurisdiction, there is no basis upon which this appeal could succeed. Accordingly, we will not set aside the order of Chapnik J. dismissing the appeal. The motion is dismissed.
J. MACDONALD J.
[10] I have endorsed the Appellant’s Record on Motion, “The application is dismissed for oral reasons delivered in Court. No order as to costs.”
DAMBROT J.
J. MACDONALD J.
SWINTON J.
Date of Reasons for Judgment: July 11, 2007
Date of Release: July 17, 2007
COURT FILE NO.: 304/05
DATE: 20070711
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. MACDONALD, DAMBROT AND SWINTON JJ.
B E T W E E N:
MOHAMED NEMMOUR
Tenant
(Appellant)
- and -
LUCY WIELAND
Landlord
(Respondent)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: July 11, 2007
Date of Release: July 17, 2007