Delic v. Enrietti-Zoppo, 2022 ONSC 1627
CITATION: Delic v. Enrietti-Zoppo, 2022 ONSC 1627
DIVISIONAL COURT FILE NO.: 322/21
DATE: 20220316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, J.A RAMSAY AND NISHIKAWA JJ.
BETWEEN:
ANDREW DELIC and PAUL RADOVANOV
Appellants
– and –
MARIA CRISTINA ENRIETTI-ZOPPO
Respondent
Hugh Scher, for the Appellants
Self-represented
– and –
THE LANDLORD AND TENANT BOARD
Respondent
Valerie Crystal and Brian Blumenthal, for the Landlord and Tenant Board
HEARD at Toronto: March 11, 2022 by videoconference
Reasons for Decision
J.A. RAMSAY J.:
[1] These appeals under s.210 of the Residential Tenancies Act, 2006 raise two questions:
a. Did the notice of appeal filed on April 23, 2021 have the effect of staying the proceedings?
b. Were the tenants denied procedural fairness?
[2] The first question requires us to decide whether s.210 of the Act gives a right of appeal from an interlocutory order.
[3] The tenants filed a notice of appeal on April 23, 2021 from two interlocutory orders of the Landlord and Tenant Board. They filed a notice of appeal on June 25, 2021 from the review on May 12, 2021 of an eviction order of February 13, 2020 and the review of the review, which was released on May 26, 2021. It is agreed that the eviction order of February 13, 2020 has been stayed by the appeal of June 25, 2021.
The notice of appeal of April 23, 2021 was an appeal with respect to two interlocutory orders and did not stay the proceedings.
[4] This notice of appeal purported to appeal the Board’s order of March 3, 2021 and the decision on review of March 18, 2021, which upheld the order of March 3.
[5] In the decision of March 3, 2021, the Board ruled that an order in a previous proceeding, refusing eviction as required by s.83 of the Act because the heat had been turned off, did not decide issues related to rent and did not give rise to res judicata and issue estoppel in a subsequent proceeding to collect rent.
[6] The decision of March 3 was not a decision to evict the tenants or terminate the tenancy, so the automatic stay provided by Rule 63.01 did not apply.
[7] It is not the form of the order, but its effect that governs. An interlocutory decision can contain final orders. An order is final if it disposes finally of a claim. An order is not final just because it is one of substance. Where the effect of an order is to continue the inquiry, it is not final.
[8] The order of March 3, 2021 was an interlocutory order, in name and in effect. It did not finally dispose of the issues between the parties. All the Board decided on March 3 was
a. that the landlord was not estopped from applying to recover rent; and
b. that the application could continue.
[9] The stay pending appeal from the order of a statutory decision-maker provided by s.25 of the Statutory Powers Procedure Act did not apply because the notice of appeal of April 23, 2021 was a nullity. The Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order.
[10] The Act provides:
210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
[11] Jurisprudence in this court with respect to similar provisions for statutory appeals from other tribunals has consistently held that in the absence of an explicit right of appeal from an interlocutory decision, only a final order of a tribunal can be appealed.[^1] Tribunals and boards are designed to provide expeditious access to justice. That intention is evidenced in section 2 of the Statutory Powers Procedure Act and, with respect to the Landlord and Tenant Board in particular, in section 183 of the Residential Tenancies Act, 2006, which provides:
183 The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
[12] It cannot be the legislature’s intention at the same time to put tribunal proceedings on hold every time an interlocutory decision is made. Section 210 does not confer a right of appeal from an interlocutory order.
[13] In the alternative, there is jurisprudence in this court that suggests that an interlocutory appeal does not stay the proceedings: Pafco v. Sahadeo, 2022 ONSC 328.
The tenants were not denied procedural fairness.
It has not been established that they did not receive notice of the February 2020 hearing.
[14] The tenants did not appear for the hearing that resulted in the order of February 13, 2020. They subsequently asked for a review on the basis that they had not got notice of the hearing. As a result, on February 24, 2020 the Board ordered a review and stayed the order pending the review.
[15] The hearing of the review did not take place until April 30, 2021. I do not accept the tenants’ argument that the Board decided the question of whether they got notice in the tenants’ favour on February 24, 2020. What it decided on February 24, 2020 was that there should be a review and that the eviction should be stayed pending the review. As the Board said in its ruling of May 26, 2021:
- The matter that was before the Board on April 30, 2021 was the Tenants’ request to review the eviction order on the basis that they had not received notice of the original hearing. The issues in that request were unrelated to the issues raised in their res judicata motion.
[16] The tenants, although legally represented when they filed the notice of appeal of April 23, 2021 (not by Mr. Scher), deliberately decided not to appear on April 30, taking the position (without informing the Board) that their notice of appeal from the interlocutory orders of March 3 and 18, 2021 stayed the proceedings.
[17] In view of the failure to appear the Board had no basis upon which it could find that the tenants had not had notice of the February 2020 hearing. Accordingly, in a decision released on May 12, 2021 the Board dismissed the review and lifted the stay of the order of February 13, 2020.
The tenants’ decision not to appear on April 30, 2021 was not reasonable.
[18] At the request of the tenants, the Board took the unusual step of conducting a review of the review. On May 26, 2021 the Board ruled that the tenants’ deliberate decision not to appear and the reason for it were not reasonable. The Board declined to reverse the decision of May 12, 2021 with the result that the order of February 13, 2020 and the lifting of the stay of that order were confirmed.
[19] The tenants point out that in the decision of May 12, 2021 the Board itself said:
The interim order of March 3, 2021 has been appealed by the Tenants to the Divisional Court. As a result of the Tenants’ appeal, there is in (sic) an automatic stay on the March 3 interim order.
The fact that the Tenants have appealed the interim order of March 3, 2021 does result (sic) in a stay of the Board’s entire proceeding. The interim order was procedural in nature and does not contain any determinations respecting the merits of the Tenants’ request to review order TSL-12534-19.[^2] I also note that application TSL-12534-20 concerns arrears of rent for different rental periods than those identified in application TSL-07607-19[^3] and TSL-17539-20[^4].
[20] In the context of the entire paragraph, it is obvious that the word “not” must have been inadvertently omitted from the first sentence in paragraph 7. Given the comments that follow, and the use of the auxiliary verb “does”, the Board must have meant to say, “The fact that the Tenants have appealed the interim order of March 3, 2021 does not result in a stay of the Board’s entire proceeding.” The context of paragraph 3 shows that the Board thought that the appeal of April 23, 2021 stayed the interim order but not the review of the order of February 13, 2020, which had nothing to do with res judicata. The tenants cannot in any event have relied on this to their detriment as they say they did in their reply factum, because this paragraph is contained in the ruling of May 12, 2021. They had decided two weeks earlier not to attend the April 30 hearing to which it relates.
[21] Finally, the notice of appeal of April 23, 2021 purported to be an appeal in Board file TSL-17539-20. It made no mention of file TSL-12534-19, the file in which the order of February 13, 2020 was made. It is difficult to see how an appellant could think that an appeal in one application would stay proceedings in another application.
[22] In any event, as a represented litigant was in a position to know, and as the Board pointed out in its decision of May 26, 2021, jurisprudence from this court had already cast doubt on the proposition that an appeal stays a review - Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.). The Board cannot be said to have denied the tenants procedural fairness when the tenants had the opportunity to be heard but deliberately forewent it. The Board is entitled to control its own process. The way it has chosen to do so is not unfair and does not warrant intervention by this court.
The Board did not omit to conduct the mandatory inquiry in s.83(2) of the Act.
[23] Although it is not clearly raised in their factum, the tenants also argue that the Board erred in its decision of May 12, 2021 because it omitted to conduct the inquiry mandated by s. 83(2) of the Act. The section provides:
- (2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[24] That section applies to the hearing, not the review. The review considers only whether a serious error was made and whether a party had the opportunity to be heard. See rule 26 of the Board’s rules of procedure. In the order of February 13, 2020, the member who made the order made explicit reference to s.83(2) of the Act and determined that it would not be unfair to order eviction. That portion of the ruling was not in issue on the review.
[25] I conclude that there is no error of law in the Board’s decision of May 26, 2021.
Conclusion
[26] I would dismiss the appeals.
[27] As to costs, the Board does not seek costs and the Landlord was self-represented and filed no materials (the materials filed were filed late and were voluntarily withdrawn by the Landlord). For this reason there shall be no order as to costs.
J.A. Ramsay J.
I agree. _______________________________
Sachs J.
I agree. _______________________________
Nishikawa J.
Released: March 16, 2022
CITATION: Delic v. Enrietti-Zoppo, 2022 ONSC 1627
DIVISIONAL COURT FILE NO.: 322/21
DATE: 20220316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, J.A RAMSAY AND NISHIKAWA JJ.
BETWEEN:
ANDREW DELIC and PAUL RADOVANOV
Appellants
– and –
MARIA CRISTINA ENRIETTI-ZOPPO
Respondent
– and –
THE LANDLORD AND TENANT BOARD
Respondent
REASONS FOR JUDGMENT
J.A. Ramsay J.
Released: March 16, 2022
[^1]: Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 OR (2d) 18 (Div. Ct.); Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (Div. Ct.), Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), [2008] O.J. No. 2052 (Div. Ct.), Canadian Union of Public Employees (CUPE) v. Ontario Hospital Assn., 1991 CarswellOnt 914 (Div. Ct.), McCann v. Ontario (Police Services Act Board of Inquiry), 1994 CarswellOnt 894 (Div. Ct.), Butterworth v. College of Veterinarians of Ontario, [2001] O.J. No. 5265 (Div. Ct.), Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293, rev’d on other grounds 2011 ONSC 99 at para. 4 (Div. Ct.), Blew v. Ontario College of Teachers, 2016 ONSC 8053 at paras. 6-11 (Div. Ct.), Free v. County of Norfolk and Dietrich Engineering Limited, 2017 ONSC 909 at para. 3 (Div. Ct.), Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236 (Div. Ct.).
[^2]: The order of February 13, 2020.
[^3]: The 2019 application in which eviction was denied.
[^4]: An application to recover rent which was withdrawn by the landlord at the April 30, 2021 hearing.