Court File and Parties

CITATION: Maki v. Lipton, 2021 ONSC 1700

DIVISIONAL COURT FILE NO.: 664/20

DATE: 20210309

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: rob maki, Appellant

AND: DANIEL LIPTON, Respondent

BEFORE: Favreau J.

COUNSEL: Rob Maki – the appellant, representing himself David Strashin – for the respondent

HEARD: In writing

Endorsement

[1] In an endorsement dated February 8, 2021, I directed that the appellant, Rob Maki, be given notice that the Court was considering dismissing his appeal pursuant to Rule 2.1 of the Rules of Civil Procedure. Mr. Maki purports to appeal a decision of the Landlord and Tenant Board dated November 26, 2020 refusing to extend the time to review a decision of the Board dated August 4, 2020.

[2] The notice gave Mr. Maki until February 23, 2021 to make written submissions in response to the proposal to dismiss his appeal. Mr. Maki did not make any written submissions.

[3] For the reasons below, Mr. Maki’s appeal is dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure on the basis that it is frivolous and vexatious and an abuse of process.

Background

[4] On August 23, 2019, the landlord, Daniel Lipton, and Mr. Maki entered into an agreement to resolve an application brought by Mr. Lipton to the Board to terminate the tenancy for unpaid rent. The consent order required Mr. Maki to make certain payments, failing which Mr. Lipton could obtain an order terminating the tenancy from the Board without notice to Mr. Maki.

[5] Mr. Maki failed to make the outstanding rent payments, and Mr. Lipton obtained an order from the Board dated January 14, 2020 terminating the tenancy.

[6] Mr. Maki subsequently brought a motion to set aside the order terminating the tenancy. The motion was heard on March 11, 2020. Mr. Maki did not attend the motion. Instead, a friend attended the motion on his behalf and requested an adjournment. The adjournment was denied. In a decision dated August 4, 2020, the Board dismissed Mr. Maki’s motion and lifted the stay on enforcement of the termination of the tenancy.

[7] Mr. Maki appealed the August 4, 2020 Board decision to the Divisional Court. Mr. Lipton brought a motion to quash the appeal. By case management endorsement dated October 27, 2020, the motion was scheduled for December 14, 2020, and Mr. Maki was required to serve his materials by no later than December 4, 2020.

[8] In an endorsement dated December 14, 2020, G.E. Taylor J. quashed Mr. Maki’s appeal and vacated the stay from the Board’s August 4, 2020 decision on the basis that Mr. Maki did not proceed with the appeal with due diligence, did not file materials in response to the motion despite a schedule set for his responding materials and did not provide good reasons for seeking an adjournment.

[9] In the meantime, Mr. Maki had sought an extension of time to request a review by the Board of its August 4, 2020 decision. In a decision dated November 26, 2020, the Board denied the extension request, providing the following reasons:

I do not find that the Tenant provided any reasonable ground for granting an extension of time to review the order SWL-40166-20-SA of August 4, 2020. There was a suspension of time limits for the Tenant to file their request for review, until September 14, 2020, which was already more than 30 days from the time the order was issued. The Tenant then delayed a further 6 weeks, or two weeks longer than the extended limitation period, and bases their claim on a vague allegation of confusion over the deadline periods. The original ex parte order to evict the Tenant was issued on January 14, 2020. There have already been extensive delays in enforcing the Landlord’s order, and I find that this request for an extension of time to file a review is merely an attempt to further delay matters, and is not made in good faith.

[10] Mr. Maki now brings an appeal from the Board’s November 26, 2020 decision denying his request to extend the time to seek review of the Board’s August 4, 2020 decision. The notice of appeal claims, amongst other matters, that the Board member who denied the extension displayed bias and did not properly address the issue of bad faith.

Principles applicable to Rule 2.1

[11] Rule 2.1.01 of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

[12] In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated that one of the principles to be applied by the courts in considering whether to dismiss a proceeding pursuant to Rule 2.1 is as follows:

Rule 2.1 must be “interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.

[13] In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…”

Analysis

[14] This is not a close call. Mr. Maki’s proposed appeal of the Board’s November 26, 2020 decision refusing to extend the time for him to seek a review of the Board’s August 4, 2020 order is clearly frivolous and vexatious and an abuse of process.

[15] This Court has already dismissed Mr. Maki’s appeal from the Board’s August 4, 2020 decision. There would be no utility in granting an appeal from the Board’s refusal to extend the time for Mr. Maki to request a review of the August 4, 2020 decision.

[16] Mr. Maki has a clear pattern of non-attendance and non-compliance with deadlines that seem to be designed to extend the stay of the termination of his tenancy. First, he failed to make the payments required under the consent order. Next, he brought a motion to set aside the order enforcing the agreement, but failed to appear on the motion. Then, when faced with a motion to quash his appeal, he failed to provide any responding materials and instead requested an adjournment. He also delayed his request to review the Board’s August 4, 2020 decision and did not provide a satisfactory explanation for doing so. Finally, he provided no submissions in response to the notice that the Court was considering dismissing his appeal.

Conclusion

[17] I am satisfied that Mr. Maki’s proposed appeal is clearly frivolous and vexatious and an abuse of process. Mr. Maki’s appeal is accordingly dismissed and the stay of the Board’s order is lifted.

Favreau J.

Date: March 9, 2021