CITATION: Vangjeli v. WJ Properties, 2019 ONSC 5631
COURT FILE NO.: DC 373/19 DATE: 20190930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ROMEO VANGJELI and SOTIRAQ
Self-represented
VANGJELI
Applicants
- and -
WJ PROPERTIES
Respondent
Read at Toronto: September 9, 2019
ENDORSEMENT
D.L. Corbett J.:
[1] By endorsement dated August 23, 2019, the court advised the applicants of its initial concerns with this application, as follows:
(a) judicial review is not available to the applicants because they have failed to exhaust their appeal rights under s.210 of the Residential Tenancy Act; and
(b) it is much too late for the applicants to appeal now, more than six years after the appeal deadline. (Vangjeli v. WJ Properties, 2019 ONSC 4994).
[2] The applicants provided thorough submissions addressing these concerns. Based on those submissions, I have concluded that the applicants are not entitled to pursue judicial review. Their remedy is an appeal. To pursue that remedy they must move, on notice to the respondent, for an order for an extension of time in which to appeal. I make no findings here about the merits of such a motion: that is for another day.
[3] Subrule 2.1.01(1) of the Rules of Civil Procedure provides that the court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
[4] This application concerns a decision of the Landlord and Tenant Board made June 11, 2012, and a reconsideration decision of the Landlord and Tenant Board made February 20, 2013.
[5] Section 210 of the Residential Tenancies Act provides a right of appeal to the Divisional Court from decisions of the Landlord and Tenant Board, to be brought within thirty days of the reconsideration decision to be appealed.
[6] Generally, where there is a right of appeal this court will not entertain an application for judicial review. The Legislature has provided a process for judicial oversight of the Landlord and Tenant Board, by way of appeal, and it would thwart the Legislature’s choice of process to permit a litigant to proceed by judicial review rather than appeal.[^1]
[7] The applicants explain in their submission that they did not appeal because the deadline had already passed when they received the reconsideration decision from the Landlord and Tenant Board. I note that it appears that the applicants acknowledge receipt of the Board’s decision less than thirty days after the date of the decision, however only a very short time before the deadline. Be that as it may, the applicants’ concern here has merit: it appears that the decision may not have been mailed out by the Board for many days after the date on the decision. This practice has been noted by this court in Board decisions in prior cases, and it is by no means unique to this Board.
[8] The date of the decision should be the date on which the decision is released – which is the date it is sent to the parties. The apparent practice of dating the decision the day it is approved in one part of the Board’s office, but before its release is processed and the decision is sent out, undermines the effective appeal period established by the Legislature, confuses and stresses parties, and leads to an understandable cynicism about the administrative process.
[9] This practice should stop: the date of the decision should be the date it is sent out.
[10] Late receipt of a decision by a party may be a basis for extending the time to appeal. The applicants explain that, because they had already missed the deadline, they did not pursue their appeal rights at all and now wish to pursue judicial review instead.
[11] Late receipt of the Board’s decision is not a basis to supplant the appeal process with judicial review. The correct course for the applicants, if they wished to challenge the Board’s decisions, was to seek an extension of time in which to bring an appeal. Having failed to pursue their appeal rights, the applicants are foreclosed from pursuing judicial review.
[12] It is not unusual for self-represented litigants to pursue the wrong process in this court. Often this court will view such an error as an irregularity and will convert an application for judicial review into an appeal, with directions to regularize the proceedings. That is not appropriate in this case.
[13] In my first endorsement respecting these issues I indicted that it appears to be much too late for the applicants to pursue appeal rights – more than six years after the impugned decisions. The applicants have provided an explanation for their delay. In my view the lengthy delay precludes me from permitting a notice of appeal to be filed at this stage without giving the respondents an opportunity to oppose an extension. Therefore, the proper course is to dismiss this application, without prejudice to any motion the applicants may now bring for an extension of time in which to launch an appeal, such motion to be brought on notice to the respondent and the LTB.
[14] I wish to be clear, so that the applicants do not misunderstand this point. Their application is dismissed. That is a final order of this court. This dismissal order does not decide whether they can bring an appeal. If they wish to bring an appeal, they will have to bring a motion, on notice to all affected parties (in this case the respondent and the Landlord and Tenant Board), asking the court to extend the time in which to bring an appeal. A single judge of this court will decide whether an extension will be granted, based on the evidence and argument from all parties. As I indicated it my initial endorsement, it appears to be much too long after the fact for an extension. However, the applicants do have an explanation for their delay, and they are entitled to place that explanation in evidence and present argument about it to the court, if they wish to do so.
[15] Application dismissed without prejudice to a motion to extend the time to bring an appeal pursuant to s.210 of the Residential Tenancies Act. No costs of these R.2.1.01 proceedings. A copy of this decision shall be sent to the applicants, the respondents, and to the Landlord and Tenant Board.
D.L. Corbett J.
Date of Reasons: September 30, 2019
CITATION: Vangjeli v. WJ Properties, 2019 ONSC 5631
COURT FILE NO.: DC 373/19 DATE: 20190930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Romeo Vangjeli and Sotiraq Vangjeli
Applicants
– and –
WJ Properties
Respondent
ENDORSEMENT
D.L. Corbett J.
Date of Release: September 30, 2019
[^1]: Canadian Pacific v. Matsqui Indian Band, [1995] 1 S.C.R. 3, para. 38; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para. 71. See also Municipal Property Assessment Corp. v. Snab Holdings Ltd., 2013 ONSC 2388 (Div. Ct.); Katz v. Municipal Property Assessment Corp., Region No. 9, 2012 ONSC 630; 1056626 Ontario Inc v. Municipal Property Assessment Corp, 2015 ONSC 7967; Oleynik v. Newfoundland and Labrador (Information and Privacy Commr.), 2012 NLCA 13.