Court File and Parties

CITATION: Farneshan v. Sadeghi, 2021 ONSC 8037

DIVISIONAL COURT FILE NO.: 561/21

DATE: 2021-12-06

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KHASHAYAR FARNESHAN et al. v. MILAD SADEGHI

BEFORE: D.L. Corbett J.

COUNSEL: Stefan Juzkiw, for the moving parties David Elmaleh, for the responding party

HEARD: In Chambers, In Writing

ENDORSEMENT

[1] The moving parties seek to extend the time in which to appeal an order of the Landlord and Tenant Board dated October 16, 2020 and to appeal an order of the Board dated June 22, 2021, refusing to extend the time to review the 2020 order.

[2] The moving parties were tenants of the respondent Sadeghi until they moved out of the leased property on April 26, 2020, after which they moved to a new residence. Notice of the hearing before the LTB was mailed to them at the leased premises after they had left the premises.

[3] The hearing before the LTB was held on October 7, 2020. The moving parties say that they were advised of the hearing by the landlord just one day before the hearing, and so they did not have time to prepare properly for the hearing.

[4] The moving party Khashayar Farneshan attended the LTB hearing on October 7, 2020 for the purpose of seeking an adjournment on the basis of short notice. The adjournment was denied, and the LTB found that arrears were owing of $18,617.41 plus costs of $175.

[5] The moving parties say that they never received a copy of the LTB decision, and that they had been waiting for it to take it to a lawyer for advice.

Extensions of the Time to Appeal

[6] The test on a motion to extend the time to appeal is as follows:

(a) did the moving party form a bona fide intention to appeal within the time to appeal?

(b) the length of and explanation for the delay in bringing the appeal.

(c) any prejudice to responding parties arising from the delay.

(d) the merits of the proposed appeal.[^1]

[7] I do not accept that the moving parties have satisfied branches (a), (b) and (d) of the test, and therefore, for the reasons that follow, the motion is dismissed.

Intention to Appeal

[8] Mr Farneshan asserts that he intended to appeal “at all material times”. However, his actions bely this assertion. Mr Farneshan was told on the day of the hearing that he had lost, that he and the other moving parties had been ordered to pay close to $20,000, and that the moving parties had rights of review and rights of appeal. Mr Farneshan did nothing to update his address with the LTB (though he had identified his change of address as the reason he did not receive adequate notice of the hearing). He did nothing to obtain a copy of the LTB’s formal order.

[9] Mr Farneshan finally took steps when the landlord began enforcing the LTB order. He brought proceedings in the Small Claims Court. On April 28, 2021, a Deputy Judge of the Small Claims Court stayed enforcement of the order, but expressly told Mr Farneshan that she did not have jurisdiction to stay, vary or set aside the LTB order. Still the moving parties did not commence proceedings to review or appeal the order.

[10] In May 2021, the moving parties retained counsel. Still they did not commence proceedings review proceedings at the LTB until June 17, 2021 and did not commence appeal proceedings in this court until July 22, 2021.

[11] Given all of these circumstances, I decline to accept the bald assertion of Mr Farneshan that he intended to appeal “at all material times”. He knew about the decision on October 7, 2020 and took no steps at the LTB until June 17, 2021 (a delay of 8.5 months) or in this court until July 22, 2021 (a delay of 9.5 months), all of which is inconsistent with his claimed intention.

Explanation for the Delay

[12] I agree with the responding party that a delay of 8.5 to 9.5 months in bringing a review or an appeal is “inordinate delay” in the context of landlord and tenant proceedings.[^2]

[13] As will be clear, I do not accept Mr Farneshan’s explanation that he intended to appeal throughout but was awaiting receipt of a copy of the Board’s order. Further, I find as a fact that the landlord sent copies of the LTB’s order to the moving parties by mail on October 23, 2020. The landlord took this step precisely for the reason of providing a record in case the moving parties tried again to delay the process by claiming that they had not received the order. The responding party knew that the moving parties knew about the LTB order. The responding party knew that Mr Farneshan had been told of the rights of appeal and review, and that Mr Farneshan had prior experience with LTB proceedings. If the moving parties wished to appeal the LTB orders, they had all the information they needed to take that step without being sent copies of the LTB order by the responding party. Sending copies of the order was a step taken out of an “abundance of caution”, in the face of prior claims that notice had not been given, and a fear that the moving parties would take steps to delay the matter further. There was no obligation on the responding party to send copies of the LTB order to the moving parties. This step was done by counsel, whose office took the precaution of photographing the envelopes sent to the moving parties, which bear postage meter dates establishing that these envelopes were metered on October 23, 2020. There would have been no point in taking these steps and not mailing the envelopes. I accept that the envelopes were mailed to the moving parties’ new address. Given the history of delay on the part of the moving parties, I conclude that either they deliberately chose not to open the envelopes when they received them, or that they did open the envelopes and received copies of the LTB orders from the responding party’s counsel in around late October 2020.

[14] Further, there is no reasonable explanation for the delay from the time the moving parties knew of enforcement steps in around February 2021, and commencing review at the LTB on June 17, 2021, and then this motion on July 22, 2021. When the LTB review order was denied on June 22, 2021, they then delayed another thirty days to take steps to seek to appeal to this court – a delay consistent with their approach of doing whatever they could do to delay matters as long as possible.

[15] The moving parties assert that they are from Iran, English is not their first language, and they had difficulty understanding the process and participating in it for this reason. I do not accept this argument. They did not request an interpreter at the LTB hearing. They participated in a prior LTB hearing without an interpreter. They participated extensively in the Small Claims Court in writing, and in person, in English. It is the responsibility of a party requiring an interpreter to identify that requirement. Nothing about the moving parties’ conduct in this matter would have alerted the Tribunal below of a need for an interpreter, and I am satisfied that the moving parties were able to participate in the process, and to identify and pursue any real need they had for interpretation assistance.

[16] The moving parties say that they were hampered in the process because they were not represented. I do not accept this argument. Mr Farneshan was at the LTB and heard the Board explain the decision and his rights of review and appeal. Further, the moving parties have been able to understand and navigate the system sufficiently to take steps necessary to delay the case – often at the last minute – and to do so repeatedly. What emerges is a pattern of delay, not a pattern of misunderstanding. The moving parties retained counsel in May 2021, but do not state when they first consulted counsel, what date they retained counsel, and the reasons for delays after retaining counsel.

[17] Taking everything into account, I am satisfied that there has been a consistent intention to avoid paying the LTB order, and to delay payment of the order, but no evidence of an intention to appeal or review the order until June 17, 2021, when the review process was initiated at the LTB. I am not satisfied that there is a reasonable explanation for the delay.

Merits of the Appeal

[18] The underlying issue concerns disputed rent arrears.

[19] The responding party lives in Ontario. He works in Ontario. The leased premises are in Ontario. Prior payments were made by the moving parties to the landlord drawn on a Canadian bank, deposited to a Canadian bank.

[20] The moving party claims that, at the landlord’s request, arrangements were made for payments to be made from and to a foreign account in Iran. He attaches to his affidavit a cheque made out to “Carrier” for about 1.414 billion Iranian Rials. The information provided by the moving parties’ bank in Iran is that this cheque was cashed by “Amir Mashayekhi Touiserkani” on May 13, 2020.

There is no explanation as to why this cheque is made out to “Carrier”. There is no explanation why it was cashed by “Amir Mashayekhi Touiserkani” rather than the responding party, or why it was cashed rather than deposited into an Iranian bank account. There is no explanation why the cheque is cashed in May, when the arrears cheque it purportedly replaces was drawn in December of the previous year. There is no evidence that relates the amount of the Iranian cheque (1.414 billion Reals) and the amount of the arrears (CDN $10,480). There does not appear to be any correspondence between the two amounts. A quick internet search places the value of the Rial between 29,000 and 33,000 Rial to the Canadian dollar between December 2019 and May 2020. The court would require expert evidence, or evidence of which the court can take judicial notice, about the relative value of the currencies to calculate the precise amount. Here, where the value of the Iranian cheque appears to have been in the range of CDN $40,000, and the amount of the arrears was less than $11,000, the problem is evident. It was Mr Farneshan’s burden to satisfy this court that there is conceivable merit to his appeal, and the apparent discrepancy in the amount of the cheque and the amount of the arrears, combined with the other problems with the evidence, combined with any corroborating documents or evidence, leaves this set of allegations outside the range of being remotely credible.

[21] The responding party describes the moving parties’ position on this issue as a “farce”. I agree. I do not accept that it is truthful or raises the prospect that procedural unfairness before the LTB has deprived the moving parties of advancing a potentially meritorious defence to the claim for arrears.

[22] In all the circumstances, the moving parties have not satisfied me that there is any merit to their defence of the claim for arrears, and I am satisfied that their stated wish to return to the :LTB is another step in a long history of using process to delay matters.

Disposition

[23] The moving parties have not satisfied branches (a), (b) and (d) of the test to obtain an extension of the time in which to appeal.

[24] The motion to extend the time to appeal the LTB decision dated October 16, 2020 is dismissed, with costs payable by the moving parties, jointly and severally, to the responding party, fixed at $5,000, inclusive, payable within thirty days.

[25] The moving parties do not need an extension in which to appeal the LTB review order of June 22, 2021. However, an appeal of that order will not stay enforcement of the LTB order for arrears. The moving parties shall advise the court, by email, by December 24, 2021 whether they intend to proceed with their appeal of the review order, and if they do intend to proceed, the date by which they will serve their complete appeal materials.

“D.L. Corbett J.”

December 6, 2021

[^1]: Enbridge Gas v. Froese, 2013 ONCA 131, para. 16; followed in Mitrou v. Singh, 2021 ONSC 5324 (Div. Ct.). [^2]: Mitrou v. Singh, 2021 ONSC 5324 (Div. Ct.), para. 17.