Balaura v. Frankum, 2019 ONSC 5527

CITATION: Balaura v. Frankum, 2019 ONSC 5527

DIVISIONAL COURT FILE NO.: 374/19

LANDLORD AND TENANT BOARD NO.: TSL-07620-19 DATE: 20190924

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ALEX BALAURA

Jennifer Croswell, for the Landlord (Respondent on Appeal)

Landlord

(Respondent on Appeal)

– and –

CARSON FRANKUM

Carson Frankum, acting in person

Tenant

(Appellant on Appeal)

HEARD at Toronto: September 24, 2019

FAVREAU, J. (Orally)

[1] On June 25, 2019, the Landlord and Tenant Board (the “Board”) made an order terminating the tenancy between Alex Balaura, the Landord, and Carson Frankum, the Tenant. The Board found that the Landlord had a bona fide intention to use the apartment for his son and his son’s family. The Board ordered that the Tenant was to vacate the property by July 6, 2019, and set out the amounts that the Tenant was to pay prior to vacating the apartment.

[2] Mr. Frankum commenced an appeal on July 4, 2019, which resulted in an automatic stay of the Board’s decision pending the appeal pursuant to s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. However, after serving the notice of appeal, he took no further steps to pursue his appeal. In particular, he did not order the transcript from the hearing before the Board.

[3] On September 6, 2019, Mr. Balaura’s counsel obtained an order from the Registrar of the Divisional Court dismissing the appeal for delay on the basis that Mr. Frankum had failed to file proof that he ordered the transcript from the Board hearing.

[4] Mr. Frankum now brings a motion to set aside the Registrar’s dismissal of his appeal for delay.

[5] At the same time, Mr. Balaura brings a motion to quash Mr. Frankum’s appeal.

[6] In Curtis v. Pinto, 2018 ONSC 5569 (Div. Ct.), at paras. 18-19, this Court explained that the test on a motion to set aside a dismissal for delay is as follows:

[18] The motion judge correctly stated that "one of the criteria to be applied in assessing an application of this nature is the merit of” the motion for leave to appeal. In Sickinger v. Sickinger, 2017 ONCA 760 at paras. 13-14 the Court of Appeal confirmed that this is the overriding consideration:

13 The overriding consideration on a motion to set aside an order dismissing an appeal is the justice of the case, which entails a consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8. In addition, factors analogous to those typically considered on a motion to extend the time to appeal inform a request to set aside the administrative dismissal of an appeal: (i) the explanation for not perfecting the appeal within the time stipulated by the rules; (ii) the length of and explanation for the delay in moving to set aside the administrative dismissal; and (iii) prejudice to the respondent.

14 More justification must be shown by a party moving to set aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal: Langer v. Yorkton Securities Inc. (1986), 1986 2612 (ON CA), 57 O.R. (2d) 555 (C.A.), at para. 14.

[19] Lack of merit alone can be a sufficient basis to deny an extension of time, particularly when the moving party seeks an extension of time on a notice of motion for leave, rather than an extension of time to pursue an appeal as of right (Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at 15-16.)

[7] Applying these factors to the circumstances of this case, I find that the justice of the case does not warrant setting aside the dismissal for delay.

Merits of the case

[8] I find that there is virtually no prospect that the appeal will succeed. Section 210(1) of the Residential Tenancies Act, S.O. 2006, c.17, provides that an appeal from the Board to this Court can only be brought on a question of law. Parties may not appeal questions of fact or mixed fact and law: see Nguyen v. Shieff, 2018 ONSC 3035 (Div. Ct.), at para. 11.

[9] The only ground of appeal set out in Mr. Frankum’s notice of appeal is a statement that “the landlord is in serious breach of his responsibilities, as I have complained to a governmental authority about health, safety, and maintenance standards.”

[10] At the hearing before the Board, Mr. Frankum, who was represented by an agent, argued that Mr. Balaura’s application to terminate the tenancy should be refused because there were outstanding work orders for the rental unit. Section 83(3)(a) of the Residential Tenancies Act provides that an application to terminate a tenancy must be denied if the Landord is in serious breach of obligations under the Act. In its decision, the Board found that section 83(3)(a) did not apply in this case, making the following findings of fact:

On the facts presented related to electrical circuits, there was no work order issued following a visit by the Electrical Safety Authority and the Tenant refused to accept the Landlord’s offer to have TB’s electrician assess the situation.

[11] In my view, Mr. Frankum’s proposed appeal does not raise a question of law. Rather, he seeks to attack a finding of fact made by the Board.

[12] During the argument before me this morning, Mr. Frankum relied on this Court’s decision in Blaker v. Chan, 2013 ONSC 6331, to argue that the Board applied the wrong test at para. 15 of its decision in deciding that it would be unfair to grant relief from eviction pursuant to section 83(1) of the Residential Tenancies Act. However, in that decision, the Board had made a finding that the Landord was in breach of its obligations. There was no such finding in this case. On the contrary, the Board made a factual finding that there was no outstanding work order and that Mr. Frankum had refused an assessment from an electrician.

[13] In these circumstances, I find that the appeal does not raise a question of law, and therefore there is no merit to the appeal.

The explanation for not perfecting the appeal within the required time

[14] The Rules require that within 30 days of serving a notice of appeal, the appellant must perfect the appeal or file a certificate confirming that he has ordered the transcript from the hearing below.

[15] In a very brief affidavit filed on this motion, Mr. Frankum says that he did not order the transcript because he was unemployed between July 9 and August 12, 2019. However, he does not provide any information about the cost of the transcript and other resources he may have had to order the transcript. The only evidence of steps he has taken to order the transcript is a form requesting the audio version of the hearing dated September 4, 2019. The cost of ordering the audio was only $16.15. Mr. Frankum claims that he has made arrangements to have the audio transcribed, but he provided no evidence of this request.

[16] In contrast, Mr. Balaura has sworn an affidavit, in which he states that Mr. Frankum has not paid any rent since March 2019, or any of the amounts ordered by the Board. For his part, Mr. Balaura has paid $1,800 to Mr. Frankum, as he was required to do given that the eviction was for use of the unit for a family member.

[17] In the face of insufficient evidence from Mr. Frankum and Mr. Balaura’s evidence that he gave Mr. Frankum $1,800 since the time of the hearing, I do not find that Mr. Frankum has provided a sufficient explanation for not ordering the transcript within the prescribed timelines.

The delay in bringing the motion after the dismissal by the Registrar

[18] There was no significant delay on Mr. Frankum’s part in bringing a motion to this Court once the Registrar dismissed his appeal for delay.

[19] However, on its own, this factor is not determinative.

Prejudice to the respondent

[20] I find that, granting Mr. Frankum’s motion, would cause significant prejudice to Mr. Balaura.

[21] First, as of the date of the motion, Mr. Frankum owed Mr. Balaura over $7,000 for unpaid rent. Mr. Frankum claims that he could pay rent for August and September but he disputes owing any rent for May and June on the basis of another matter before the Board between the parties. Notably, there is no order from the Board excusing him from paying rent. He also claims that he may have trouble paying October rent because he does not have roommates who can contribute to the rent. Under the circumstances, I have no confidence that if the appeal is allowed to proceed, Mr. Frankum will pay his outstanding and his upcoming rent obligations.

[22] Second, the Board made its eviction order on the basis of a finding that Mr. Balaura had a bona fide intention to let his son and his family live in the apartment while his son made renovations to his own home. I accept Mr. Balaura’s evidence in his affidavit on this motion that the delay in proceeding with this appeal is causing delay to his son and his family in pursuing the planned renovations.

Conclusion

[23] Based on my review of the relevant factors, and particularly the lack of merit to the appeal and the prejudice to Mr. Balaura, I find that the justice of the case strongly favors dismissing the motion.

[24] Accordingly, Mr. Frankum’s motion to set aside the dismissal of his appeal is dismissed. In the circumstances, Mr. Balaura’s motion to quash the appeal is moot.

COSTS

[25] I make the following order:

(1) The stay dated July 5, 2019, from the Landlord and Tenant Board’s Order is lifted;

(2) The Sheriff is directed to give immediate possession of the premise to the Landlord, not to be exercised before September 30, 2019;

(3) The Tenant shall pay costs of the motion to the Landlord in the amount of $3,500 to be paid within 6 months of today’s date; and

(4) Counsel for the Landlord may take out this order without approval as to form and content by the Tenant.

___________________________ Favreau, J.

Date of Oral Reasons for Judgment: September 24, 2019

Date of Release: September 25, 2019

CITATION: Balaura v. Frankum, 2019 ONSC 5527

DIVISIONAL COURT FILE NO.: 374/19

LANDLORD AND TENANT BOARD NO.: TSL-07620-19 DATE: 20190924

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ALEX BALAURA Landlord (Respondent on Appeal)

– and –

CARSON FRANKUM Tenant (Appellant on Appeal)

ORAL REASONS FOR JUDGMENT

FAVREAU, J.

Date of Oral Reasons for Judgment: September 24, 2019

Date of Release: September 25, 2019