[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): FIORELLI v. WALTON HOLDINGS INC., 2020 ONSC 5537

DIVISIONAL COURT FILE NO.: 39/19

DATE: 2020/09/16

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: A. ANTHONY FIORELLI, Appellant

AND:

WALTON HOLDINGS INC., Respondent

BEFORE: Mr. Justice D.A. Broad

COUNSEL: A. Oye-Adeniran and C. Sa’D, Counsel for the Appellant

Peter Miller, Counsel for the Respondent

HEARD: September 11, 2020

ENDORSEMENT

[1] By Decision dated June 20, 2019 the Landlord and Tenant Board (“LTB”) terminated the appellant tenant’s residential tenancy effective July 31, 2019 on the basis that the appellant had substantially interfered with other tenants’ reasonable enjoyment of the residential complex and had substantially interfered with the right of entry of the respondent landlord. By Review Decision dated July 29, 2019 the appellant’s request for review of the Decision was denied and the Eviction Order dated June 20, 2019 was confirmed.

[2] By Notice of Appeal dated August 1, 2019 the appellant appealed to the Divisional Court from the Eviction Order.

[3] On August 29, 2019 the appellant retained counsel. On October 22, 2019 the transcript of the hearing before the LTB was ordered and a Certificate/Proof of Ordering Transcript for Appeal was issued on October 25, 2019. The Certificate appears to have been filed in the wrong court office.

[4] On February 9, 2020 the appellant was admitted to hospital and was discharged on May 7, 2020.

[5] The appellant’s counsel received the transcript of the LTB hearing on February 13, 2020.

[6] On February 26, 2020 the Registrar of the Divisional Court at London gave notice that:

(a) the appeal has not been perfected pursuant to rule 61.09;

(b) more than 30 days have passed since the notice of appeal was filed by the appellant;

(c) no order of the court has been filed extending the time prescribed for the perfecting of the appeal,

and that the appeal would be dismissed for delay unless it was perfected within 10 days after service of the notice.

[7] It appears that the appeal was subsequently administratively dismissed, however, the Dismissal Order was not included in the motion materials.

[8] The dismissal of the appeal did not come to the attention of the appellant until May 7, 2020 when he was discharged from hospital.

[9] The appellant brought a motion to set aside the administrative dismissal of the appeal for delay pursuant to rule 16.16(5) of the Rules of Civil Procedure.

[10] The respondent brought a cross-motion for the following relief:

(a) dismissal of the motion of the appellant to set aside the administrative dismissal of the appeal for delay;

(b) in the alternative, an order compelling the appellant to post security for costs of the appeal; and

(c) in the alternative, an order for a timetable setting out the steps to be completed in the appeal.

[11] For the following reasons the appellant’s motion is allowed, the administrative dismissal of the appeal is set aside, and the appeal is restored. The respondent’s motion for security for costs is dismissed.

(a) Setting Aside the Administrative Dismissal

[12] The factors to be considered by the court in determining whether to set aside a Registrar’s Order for delay include:

(a) whether the appellant had an intention to appeal within the time for bringing an appeal;

(b) the length of the delay;

(c) any explanation for the delay;

(d) any prejudice to the respondent caused by the delay; and

(e) the justice of the case which requires consideration of the merits of the appeal,

(see Davies v. The Corporation of the Municipality of Clarington et al, 2019 ONSC 6895 (S.C.J.) at para. 29)

[13] At para. 30 of Davies Woodley, J. citing Paulsson v. Cooper, 2010 ONCA 21 (Ont. C.A.), observed that the last of the listed factors is the most important.

[14] Mr. Miller for the respondent quite fairly acknowledged that the first four factors have been satisfied and relies, in opposition to the motion, on the fifth factor, arguing that the appeal lacks merit.

[15] The background to the respondent’s eviction proceeding in the LTB may be briefly stated.

[16] The residential complex is a multi-unit apartment building. The lease provides that the tenant may not make any structural changes, alterations or additions to the property and that the landlord may from time to time, with reasonable notice to the tenant, enter the premises to render services and make adjustments necessary in the construction, remodelling or in the maintenance of the premises and for all other purposes.

[17] Approximately three years prior to the hearing the appellant installed a video camera above the door to his unit to monitor the common hallway outside his unit. When the appellant requested consent from the respondent to install the camera, he was informed he may proceed only if the lens is directed downward to film only the area immediately in front of his door and only if all other tenants on this floor have no objection to its presence.

[18] The tenants of the rental unit adjacent to the appellant unit strenuously objected to the presence of the video camera and provided a letter stating the reasons for the objection which was entered into evidence at the LTB hearing.

[19] The appellant proceeded to install the camera and refused to remove it despite the requests of the landlord. The appellant admitted that, since its installation, the camera has always been directed outward to the common hallway.

[20] The appellant subsequently installed an additional video camera on the exterior of the building outside his window, directed at the common parking lot, again without consent of the respondent.

[21] The respondent served the appellant with the notice of entry to inspect the rental unit with respect to the exterior camera. The appellant responded by informing the respondent that he would not consent to the entry of the property manager to the rental unit under any circumstances.

[22] The LTB member held that the appellant’s conduct in installing and maintaining the two video cameras “substantially interfered with the other tenants’ reasonable enjoyment of the residential complex and with a lawful right, privilege or interest of the landlord and the other tenants.” He also held that the appellant, by refusing the respondent entry on notice to the unit, acted unreasonably and “substantially interfered with a lawful right, privilege or interest of the landlord.”

[23] The Board member found that it was clear that there was no reasonable prospect that the appellant’s conduct would change.

[24] S. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 provides that a person affected by an order of the LTB may appeal the order to the Divisional Court but only on a question of law.

[25] The listed grounds of appeal in the Notice of Appeal are as follows:

(a) the Board committed an error in law in holding that the tenant’s installation of a camera outside of any unit substantially interfered with other tenants’ reasonable enjoyment of the residential complex and with a lawful right, privilege or interest of the landlord and other tenants;

(b) the Board committed an error in law in holding that the tenant’s refusal to permit access to the landlord substantially interfered with the lawful right, privilege or interest of the landlord;

(c) the Board committed an error in law in holding that eviction was the only appropriate remedy based on a prediction as to the appellant’s future conduct; and

(d) the Board committed an error in law in ordering eviction despite the appellant’s evidence of his role with respect to s. 83(d) (sic) [of the Residential Tenancies Act, 2006].

[26] At para. 53 of Davies Woodley, J. stated as follows, citing the case of Broz v. Scotia Mortgage Corporation, 2018 ONSC 724, 56 C.B.R. (6th) 265 (Ont. Div. Ct.) at para.19:

The appellant is not required to prove to the Court that he will succeed on his appeal. The view is not whether the appeal will succeed, but whether the appellant has shown that he has a decent, arguable case so that the interests of justice support his right to proceed despite his being late in perfecting.

[27] The Board member carried out a careful review of the evidence and made a number of factual findings.

[28] It appears from the Notice of Appeal that the appellant does not seek to have the factual findings of the Board member questioned or reversed, but rather has confined his appeal to an assertion that the Board member erred in law in concluding that the appellant’s conduct, as found, substantially interfered with the rights and interests of other tenants and the respondent - effectively arguing that the Board member erred in the application of the legal test for substantial interference to his factual findings.

[29] The Board member’s findings of substantial interference may be described as conclusory. They do not explicitly identify the test for determining when substantial interference with the other tenants’ and a landlord’s rights and interests may be found and how the appellant’s conduct met the test.

[30] I am unable to find that the appellant does not have an arguable case and that the interests of justice do not support his right to proceed despite being late in perfecting the appeal. As Woodley, J. observed in Davies at para. 57, “truncating the appellant’s right to appeal based on a procedural irregularity would be contrary to the interest of justice.”

(b) Security for Costs

[31] The respondent relies upon rule 61.06(1) of the Rules of Civil Procedure in support of his motion for an order for security for costs. That rule provides that an order for security for costs in an appeal may be made:

(a) where there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under rule 56.01; or

(c) for other good reason, security for costs should be ordered.

[32] The respondent relies upon subparagraph 61.06(1)(a) which is duplicative of subparagraph 56.01(1)(e). The other subparagraphs of 56.01(1) appear to have no application.

[33] In the case of Pickard v. London Police Services Board, 2010 ONCA 642. 2010 ONCA 643, 268 O.A.C. 153, Watt, J.A. made the following observations at paras. 16-20:

(a) the language of rule 61.06 is permissive, not mandatory. The overarching principle to be applied to all the circumstances is the justness of the order sought;

(b) “good reason to believe” suggests a tentative conclusion of absence of merit and assets; and

(c) a frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success, whereas a vexatious appeal is one taken to annoy or embarrass the opposite party.

[34] Although the respondent argues that the appeal is frivolous as being without merit, it is unable to point to any basis to suggest that it is vexatious as having been brought for a collateral purpose, such as to annoy or embarrass the respondent. In order to support a claim for security for costs it must be found that there is good reason to believe that the appeal is both frivolous and vexatious.

[35] Given my finding that it has not been shown that the appeal is vexatious, it is not necessary to consider whether there is good reason to believe that the appellant has insufficient assets in Ontario to pay the costs of the appeal.

[36] I find that it would not be just in the circumstances to require the appellant to post security for costs of the appeal.

Disposition

[37] For the foregoing reasons it is ordered as follows:

(a) the order of the Registrar dismissing the appeal for delay is set aside and the appeal is restored;

(b) the respondent’s motion for security for costs is dismissed;

(c) in accordance with the Case Management Endorsement Order of Corbett, J. dated August 19, 2020, the parties are directed to seek a further case management conference with an administrative judge of the Divisional Court to set a schedule and the return date for the appeal.

[38] The parties agreed that the successful party should receive costs of the motions in the sum of $2,000. It is therefore ordered that the respondent pay costs to the appellant fixed in the sum of $2,000 inclusive within 30 days hereof.

D.A. Broad, J.

Date: September 16, 2020