Court File and Parties

Citation: One Superior Avenue Limited v. Mary Coralee Sheridan, 2019 ONSC 2607

Divisional Court File No.: 374/18

Date: 2019/04/26

Superior Court of Justice – Ontario

Divisional Court

Re: One Superior Avenue Limited, Landlord (Responding Party)

And: Mary Coralee Sheridan, Tenant (Moving Party)

Before: H. Sachs J.

Counsel: Erin Pleet, Amicus for the Tenant David S. Strashin, for the Landlord

Heard at Toronto: April 25, 2019

Endorsement

[1] This is a motion by the Tenant seeking leave to extend the time for bringing a motion under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside or vary the decision of Myers J. made on February 20, 2019. In his decision the motion judge quashed the Tenant’s appeal, finding that it was manifestly devoid of merit. Since that decision the Tenant has been lawfully evicted from her apartment and the premises have been leased to another tenant. As part of her motion, the Tenant seeks to have this court direct the Landlord to lease her premises comparable to the premises she was evicted from.

[2] The test to be applied on this motion is set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15:

The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) Whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) The length of, and explanation for, the delay in filing;

(c) Any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) The merits of the proposed appeal.

[3] The Landlord takes no issue with the Tenant’s intention to seek to set aside or vary the motion judge’s order or the length of the delay. Further, it made no argument asserting prejudice. Its position is that the proposed motion to set aside or vary has no merit. Thus, the justice of the case does not warrant granting the extension requested. The Landlord also contests this court’s jurisdiction to order it to lease premises to the Tenant.

[4] I agree with the Landlord that the proposed motion has no merit and that the justice of the case does not warrant granting the Tenant’s request. In his thorough reasons the motion judge was sympathetic to, and carefully considered, the Tenant’s submissions that she did not have an adequate opportunity to present her case to the Landlord and Tenant Board. After canvassing the history of the proceedings before the Board, the motion judge found as follows with respect to the Tenant’s argument that the Board should have adjourned the hearing on May 29, 2018:

[10] While the tenant may have subjectively suffered symptoms on May 29, 2018, she submitted no evidence to support her multiple requests for delay or her failure to attend at the hearing. Her requests for accommodation, without any supporting material, cannot permanently exempt her from the substantive law requiring her to pay her rent when due, from procedural obligations to treat the other party fairly, nor from the requirement to observe the board’s orders.

[5] I see no error in this reasoning or in any other aspect of the motion judge’s reasons that would cause a panel of the Divisional Court to set aside or vary the motion judge’s decision.

[6] For these reasons the motion to extend is dismissed. Both parties agreed that there should be no order as to costs.

H. Sachs J.

Date: April 26, 2019