Provan v. TWKD Development Inc., 2022 ONSC 3208

CITATION: Provan v. TWKD Development Inc., 2022 ONSC 3208

DIVISIONAL COURT FILE NO.: 465/21

DATE: 20220601

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ALEX PROVAN, Appellant/Moving Party

AND:

TWKD Development Inc., Respondent

BEFORE: Sweeny RSJ, Matheson and Nishikawa JJ.

COUNSEL: Self-represented Appellant/Moving Party

Chad Regan, for the Respondent

HEARD: May 30, 2022 (by videoconference)

ENDORSEMENT

[1] The moving party appellant/tenant (the “appellant”) seeks an order to vary the decision of Corbett J. dated February 25, 2022, dismissing the appellant’s appeal as abandoned (the “Decision”).

[2] This motion is brought under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which is the proper process to seek to set aside or vary a decision of a single judge of the Divisional Court: Bernard Property Maintenance v. Taylor, 2019 ONCA 830, 148 O.R. (3d) 494 at para. 2.

[3] The test on this review is summarized in the decision of this court in Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123, at para. 4:

… The test on such a review is well established in this court: a motion to review is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact: ... Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations” [Citations omitted.]

[4] The Decision arises in the context of an appeal brought by the appellant from a decision of the Landlord Tenant Board dated May 11, 2021, granting the respondent landlord’s application for eviction and ordering the appellant to pay arrears of $35,000 (the maximum amount within the Board’s jurisdiction). The Board found that the period of non-payment of rent began in May 2019 and continued, totaling $42,500 at the time of the Board hearing.

[5] The appellant requested a review of the Board decision. The Board dismissed that request on June 8, 2021.

[6] The appellant then served a notice of appeal to this court dated June 12, 2021. However, the appellant did not deliver the materials required under the Rules of Civil Procedure and the court’s case management directions in the roughly eight-month period between the notice of appeal and the Decision.

[7] In late June 2021, the stay of proceedings that was obtained at the outset of the appeal was lifted. That decision is not challenged before us. Attempts to obtain the oral recording of the Board hearing followed. The recording turned out to be unavailable. By directions given on November 2, 2021, the case management judge set a schedule requiring that the appellant deliver his appeal materials by January 31, 2022. On January 31, 2022, the appellant asked for another extension of time, without specifying a length of time. He was given until February 7, 2022, to provide the length of time, giving him at least that extension. He replied, requesting until February 14, 2022. That extension was granted. However, that schedule was also not met.

[8] On February 16, 2022, the appellant emailed to say that he was working on finishing that day and that his health had not been good after getting COVID-19. He was given another extension until February 22, 2022 and notified that if he did not meet that date, “the court may dismiss his appeal as abandoned for repeated failure to follow the court’s scheduling directions.” On February 23, 2022, the appellant wrote and said he would serve his materials within a matter of hours. The next day, the court directed that the appellant serve his materials by 10AM on February 25, 2022, “failing which the appeal shall be dismissed as abandoned.” The appellant did not do so, expressing many difficulties in finalizing his materials.

[9] In the Decision, the appeal was dismissed as abandoned without costs. The case management judge took into account that the appellant was self-represented and that the appeal was important to him. The case management judge noted the history of extensions of time, granting repeated extensions for the length of time requested by the appellant. The case management judge noted that the appellant had by then had 3 ½ months beyond the time provided in the Rules. The appeal was dismissed as abandoned to the repeated failure to deliver the appeal materials.

[10] The appellant then brought this motion seeking a review of the Decision by a panel of the court under s. 21(5) of the CJA.

Motion under s. 21(5) of the CJA

[11] On this motion, the appellant recounts in some detail his allegations against the landlord, long time problems receiving insurance benefits and other hardships giving rise to problems paying his rent during the period at issue in the Board proceedings. He details allegations about the Board proceedings, including matters that are not the subject of his appeal. He submits that the Board, the respondent and respondent’s counsel were engaged in serious actions against him and that he will be seeking relief for pain and suffering, costs and expenses.

[12] The appellant makes submissions about a poor state of repair of the rental premises, which relates to his main ground of appeal. Before the Board, the appellant sought to raise issues about maintenance and the condition of the rental premises and seek an order under s. 83 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). The Board did not permit him to do so because he did not meet the scheduling order and had not made timely disclosure under s. 82 of the RTA. However, the Board noted that the ruling did not prevent the appellant from bringing his own application to the Board on the maintenance issues. The Board directed the appellant to his local legal clinic to get advice in that regard.

[13] In addition to raising the above issues, the appellant submits that the case management judge erred in two ways in the Decision. First, the endorsement states that the stay was lifted in 2020, rather than 2021. Reading the endorsement as a whole, and given that the judge also made that order, we conclude that this was a typo. It does not given rise to a basis to vary the Decision.

[14] Second, the appellant submits that the part of the endorsement saying that the only issue on the appeal was the quantum of arrears of rent is in error. The appellant submits that he plans to put forward evidence on his appeal to show palpable and overriding errors of fact and other issues of equal or greater importance than rental arrears. However, the right of appeal from the Board is limited to questions of law. The appeal is not a re-weighing of the facts or an opportunity to begin again with additional evidence regarding the prior relationship with the respondent or the condition of the premises.

[15] It is apparent that the case management judge made the Decision as a result of the appellant’s repeated failure to meet the court-ordered schedule after several extensions of time. We are not persuaded that the test to vary the Decision, set out above, has been met. On the contrary, the judge, who had been case managing the appeal throughout the relevant time period, had regard for relevant considerations and made no error that would justify varying the Decision.

[16] This motion is therefore dismissed. The appellant shall pay costs in the amount of $1,500, all inclusive.

Sweeny RSJ

Matheson J.

Nishikawa J.

Date: June 1, 2022