El Kasir v. Darling et al. 2017 ONSC 6088

CITATION: El Kasir v. Darling et al. 2017 ONSC 6088

COURT FILE NO.: DC-15-870-00

DATE: 20171013

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NABILA EL KASIR v. KAREN DARLING, CLIFFORD RUSSELL AND JOSHUA RUSSELL

BEFORE: Michael G. Quigley J., Wendy Matheson J., Mario Faieta J.

COUNSEL: David Strashin, for the Appellant

Karen H. Darling, Respondent, Self-represented

HEARD: At Oshawa, Ontario: September 27, 2017

E N D O R S E M E N T

By the Court :

[1] The Appellant, Nabila El Kasir, brings this motion before us seeking to vary the August 16, 2016 decision of Glass J., sitting as a single judge of this court (the “Motion Decision”) and for this panel to rehear that motion under s. 21(5) of the *Courts of Justice Act*, R.S.O. 1990, c. C.43 (CJA) and r. 61.16(6) of the *Rules of Civil Procedure*, R.R.O. 1990, Reg. 194 (Rules).

[2] Glass J.’s brief endorsement dismissed the Appellant’s four ongoing proceedings, all related to the same matter: (i) this one stemming from an attempt to proceed with a statutory appeal (DC-15-870); (ii) two judicial review applications (DC-15-778-JR and DC-15-919-JR) and (iii) a motion to stay an interim order of the Landlord and Tenant Board (DC-14-730).

[3] There were three grounds for Glass J.’s decision to dismiss all four proceedings. The first was that the Appellant was absent at the motion. The second was his finding that Fathy El Kasir, the Appellant’s husband (the “husband”), was unauthorized to act as her agent in her absence. The third was that all four proceedings were improperly perfected and filed.

[4] The Appellant herself has never appeared throughout any of these proceedings. Instead of the named Appellant, her husband has attempted to represent her throughout this dispute. That is, until today, when Ms. El Kasir was represented by Mr. Strashin.

[5] The four proceedings dismissed by the Motion Decision all began from a single dispute between the Appellant—a landlord—and the Respondent tenants. The dispute commenced when the Respondents filed three applications for relief to the Landlord and Tenant Board in 2014 against conduct of Ms. El Kasir who is named in these proceedings as the “landlord.”

[6] Through the actions of her husband as her alleged agent or attorney, the Appellant has filed applications to the Board against the Respondents, has then withdrawn those applications to pursue full damages claims in the Superior Court, has applied for multiple judicial reviews, and lastly has endeavoured to commence a statutory appeal against the Board and its determinations. The Appellant, through her husband, has also raised motions to stay and set aside orders.

[7] In trying to perfect her statutory appeal, the Appellant tried persistently but eventually failed to serve the Respondents. Nonetheless, the Appellant’s persistent delivery of the documents by process server, mail even if to a wrong address, and email was deemed to constitute service on a motion to validate service under r. 16.07 of the *Rules*. Three weeks later, when the Appellant moved to perfect her appeal, Glass J. dismissed all of the appeals on the three grounds mentioned above.

[8] On this motion to vary, the Appellant raised three issues:

(i) Can the husband represent the Appellant or be added as party to this appeal?

(ii) Was it an error to dismiss the proceedings due to the Appellant’s absence?

(iii) Was it an error to dismiss the proceedings for the Appellant’s improper perfection?

[9] On the first issue the husband claimed that he had standing before Glass J. Contrary to the Appellant’s submission, however, there was no standing issue in this case. The husband was not denied standing; rather, he was not the named party and made no prior requests to be added as one. Instead, he wants to act as his wife’s representative or agent. That is a matter separate and distinct from standing.

[10] The real issue before Glass J., was whether the husband could act as legal representative of the Appellant. The answer is set out in r. 15.01(3). In short, a purported “power of attorney” from the Appellant creates no ability or entitlement to represent a family member in legal proceedings, absent exceptional circumstances and there are none. Ms. El Kasir must either be represented by counsel in this court, or represents herself if she chooses to proceed without counsel.

[11] This problem is now rectified and moot, however, by the applicant being represented by Mr. Strashin before us on this hearing. Mr. Strashin’s presence serves to resolve both the first and the second issue before this panel, but I would caution, those issues are only resolved so long as Ms. El Kasir is represented by counsel or represents herself.

[12] There are acknowledged to be technical irregularities in these motions and appeals as filed, but that are not substantive. More significantly, the Motion Decision correctly dismissed the appeals due to the scattershot abundancy of multiple proceedings in the face of existing alternative remedies that were available. However, this also is no longer an issue. Mr. Strashin made clear that the Appellant will no longer pursue the two judicial review applications (DC-15-778-JR and DC-15-919-JR) or the motion to stay the interim order of the Board (DC-14-730). It is only the motion to vary relating to the applicant’s attempt to pursue a statutory appeal (DC-15-870) that remains alive, and for which the appellant seeks the court’s variance order.

[13] We do not doubt that the proliferation of varied appeals and applications for judicial review relentlessly pursued by Ms. El Kasir, while her husband has served as her “representative” in all of these proceedings, has been a source of significant aggravation to the respondents Ms. Darling, and her partner and son over the past several years. However, the appellants do have a statutory right of appeal from decisions of the Board. Despite difficulties, a judge hearing a motion on the adequacy of service by Ms. El Kasir on the respondents has ruled that they had been properly served.

[14] In light of these facts, and particularly in light of Ms. El Kasir now being represented in these proceedings, while we dismiss the motions to vary in the two judicial review applications (DC-15-778-JR and DC-15-919-JR) and the motion to stay the interim order of the Board (DC-14-730), we grant the applicant’s motion to vary to permit the statutory appeal in matter DC-15-870 to continue. For these reasons, an order will go varying the order of Glass J. and permitting the applicant to pursue its statutory appeal. We further order that the appellant serve the respondents by mail at the postal address they have provided.

Michael G. Quigley J.

Wendy Matheson J.

Mario Faieta J.

Released: October 13, 2017