CITATION: PSCC No. 779 v. Rahman, 2022 ONSC 5166

DIVISIONAL COURT FILE NO.: DC-21-0043

DATE: 2022 09 29

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

AQIB RAHMAN

Aqib Rahman, in person

Respondent

• and -

PEEL STANDARD CONDOMINIUM CORPORATION NO. 779

Tim Gleason and Amani Rauff, for the Appellant

Appellant

HEARD: in writing

REASONS FOR DECISION

(ON THE MOTION TO EXTEND TIME TO APPEAL)

Emery J.

[1] The respondent Aqib Rahman is the owner of a condominium unit. The appellant Peel Standard Condominium Corporation No. 779 (‘’779’’) is the corporation at which the unit is located, and provides parking stalls for unit owners, visitors and persons with disabilities on its common elements.

[2] The parties are engaged in a dispute over Mr. Rahman’s legal right to park his vehicle in an “accessible” parking space on the common elements provided at ground level by 779 for persons with a disability (the “parking space dispute”). 779 incurred legal fees as a result of this dispute and placed a lien on Mr. Rahman’s unit for payment of those fees. An application was filed by Mr. Rahman to have the parking space dispute adjudicated by the Condominium Authority Tribunal (‘’CAT’’) constituted under the Condominium Act, 1998 (the “Act”).

[3] The CAT released its decision on February 16, 2021. 779 now seeks an Order extending the time to appeal the CAT decision.

[4] A party may seek an order extending time relating to the appeal under Rule 3.02 (3) of the Rules of Civil Procedure. 779 has brought this motion in the Divisional Court as the motion for an extension of time must be made to a judge of the appellate court. The parties gave their consent to make and respond to this motion in writing, confirmed in paragraph 6 of my case management endorsement dated December 15, 2021.

Order under proposed appeal

[5] On November 17, 2020, Mr. Rahman commenced his application under the Act for CAT to adjudicate the parking space dispute. In response, 779 took issue with CAT’s jurisdiction to hear Mr. Rahman’s application. 779 took the position that the parking space dispute fell under a narrow exception created by s. 1 (3) of the Ontario Regulation 179/17 from matters that CAT has the power to hear under the Act.

[6] After Vice Chair Cifton was assigned to hear the application, 779 brought a motion before CAT seeking an early dismissal of Mr. Rahman’s application. 779 argued that the facts surrounding the parking space dispute included conduct based issues to make s.117 of the Act applicable to the case. Section 117 prohibits any person to carry on an activity in a unit or in the common elements if that activity is likely to damage property or cause injury to an individual. 779 made the submission to CAT that this provision excluded CAT from making this determination under O.Reg 179/17.

[7] Alternatively, 779 argued that Mr. Rahman’s case should be dismissed on the ground it was vexatious or an abuse of process. Prior to commencing the application, Mr. Rahman had brought an action in the Superior Court of Justice regarding the same subject matter. In a Statement of Claim issued electronically at Brampton on October 26, 2020, Mr. Rahman seeks $100,000 in damages against 779 for harassment, discrimination and for breaching his rights under the condominium corporation’s declaration and rules.

[8] Mr. Rahman had also filed a complaint under the (Ontario) Human Rights Code against the condominium corporation.

[9] On January 12, 2021, Vice Chair Michael Clifton dismissed the motion of 779 for the early dismissal of Mr. Rahman’s application.

[10] On January 19, 2021, counsel for 779 requested that Vice Chair Clifton recuse himself from the case because of correspondence Mr. Clifton had written in his capacity as a lawyer in a separate case. Vice Chair Clifton recused himself on January 22, 2020 after assuring the parties he could remain impartial, but acceded to the request to avoid delay.

[11] Subsequently, the hearing of the application was assigned to member Laurie Sanford, and the hearing was to be heard in writing. Member Sanford received further written submissions from the parties. On February 16, 2021, member Sanford released her reasons for decision in which she held in favour of Mr. Rahman.

[12] 779 formed the intention to challenge the Orders of Vice Chair Clifton and member Sanford within two days of receiving the latter decision. Counsel for 779 determined that they could not raise issues of procedural fairness as grounds for appeal as a party can only appeal an Order of the CAT under ss.1.46 of the Act on a question of law. On the advice of its solicitors, 779 therefore brought an application for judicial review of the decisions from the CAT on March 11, 2021.

[13] On October 28, 2021, the Divisional Court dismissed the application for judicial review for reasons released at 2021 ONSC 7113. The application was dismissed without prejudice to the ability of 779 to bring any motion to seek an extension of time within which to commence an appeal, on notice to Mr. Rahman and the CAT.

[14] 779 now brings its motion to extend the time to appeal the Order of member Sanford, and by extension, the Order of Vice Chair Clifton. 779 requires an order extending the time to appeal because it did not commence an appeal as of right under Rule 62.01(2) within 7 days of the Order dated February 16, 2021.

Applicable principles

[15] It is well settled law that the overarching principle governing a motion to extend time to appeal is whether ‘’the justice of the case’’ requires that an extension be granted. A determination of what outcome would serve the justice of the case operates to the benefit of not only the moving party, but also to the party opposite.

[16] In Lee v. Richcraft Homes Ltd. 2019 ONCA 7, the Court of Appeal set out the relevant considerations for the Court to apply on a motion to extend:

(a) Whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) The length of the delay, and an explanation for it;

(c) Any prejudice to the responding party cause by the delay and

(d) The merits of the proposed appeal.

[17] In Lee v. Richcraft Homes, the Court of Appeal granted an extension of time to appeal where there was nine months of unexplained delay.

[18] I have read the responding materials filed by Mr. Rahman. In particular, I have reviewed his factum to take legal authorities he relies upon to oppose the motion into account. I note that he has listed three cases in addition to the CAT decision but gives no indication of how those cases might assist me with determining the ‘’justice of the case’’ on this motion.

[19] In MTCC No. 1171 v. Rebeiro, 2022 ONSC 503, Myers J. stayed the condominium corporation’s application to sell the respondent’s unit, or alternatively for an order that they comply with the condominium’s rules because of escalating hostilities between neighboring owners. The application was stayed pending mediation and arbitration as required under s. 132 (4) of the Act. The facts in Rebeiro are different than in the present case, where the dispute is not between neighbors but with the corporation itself. The question for the court to determine in this case is not the same as in Rebeiro.

[20] In Amlani v. YYC No. 473, 2020 ONSC 5090, the Divisional Court was sitting on an appeal of a final Order where the condominium corporation was seeking to enforce a lien registered against title of an owner’s unit under s. 85. The condominium corporation sought to collect legal fees the corporation had expended in a dispute with the unit owner and the lien had been registered without first obtaining a compliance order from the court. The Divisional Court held that legal fees were not “common expenses” that could be enforced by the registration of a lien under s. 85, and that the lien was therefore invalid and must be discharged.

[21] While the underlying facts in Amlani were similar to the instant case, the subject of the proposed appeal is CAT’s disposition of Mr. Rahman’s application, not that of the enforceability of a lien. In this case, the proposed appeal is focused on the jurisdiction of the CAT in respect of a particular dispute, and not necessarily the lien the corporation registered against Mr. Rahman’s unit.

[22] The third case Mr. Rahman refers to in his factum is Salomon v. Matte-Thompson, 2019 SCC 14, in which the principles of the duties and responsibilities of a lawyer are examined. That case may have relevance to the duties and responsibilities of counsel for 779 to act with diligence. I have not received any submissions with respect to the particular application of the Salomon decision to this motion.

[23] I am therefore left with the cases provided by 779 in its factum to guide me on applying the various parts of the test to extend time to appeal. Of course, each case must be determined on its own facts.

Analysis

[24] The evidence in support of the motion was given by Antoni Casalinuovo, counsel who had acted for 779, in an affidavit affirmed November 30, 2021. The affidavit contains a detailed description of the events leading up to the application before the CAT, the CAT proceedings and the reasoning behind the initial decision to bring an application for judicial review rather than to bring an appeal. The Casalinuovo affidavit also describes the grounds for appeal if an extension is granted that allege errors of law made by each Vice Chair Clifton and member Sanford.

[25] Mr. Rahman filed a Responding Motion Record and a factum in response to this motion. The Motion Record contained no affidavit to put facts in evidence before the court on his behalf. Instead, it consists of an “Introductory Summary” that reads much like his factum, and twelve exhibits to provide all or portions of documents and cases.

[26] Mr. Rahman’s factum contains argument in the “Overview” that the mis-conceived application for judicial review was frivolous and vexatious that lead to emotional distress and accumulating costs. In essence, Mr. Rahman is submitting that this motion for leave, and any subsequent appeal amounts to an abuse of process. These submissions did not address any specific part of the legal test to extend time to appeal.

a) Intention to appeal

[27] It is uncontested that the directors of 779 decided to appeal or to otherwise seek a review of the CAT decisions within 2 days of receiving member Sanford’s reasons on February 16, 2021. The fact that 779 brought its application for judicial review reinforces the evidence that 779 formed the intention to challenge the CAT decision in the courts at that time.

[28] I am of the view that the formation of 779’s intention to challenge member Sanford’s Order is, by extension, the formation of its intention to challenge the previous Order of Vice Chair Clifton. I reach this conclusion for two reasons. First, the dismissal of the motion for an early disposition of the application is an inherent part of the final decision. Vice Chair Clifton had been assigned to hear the application and it appears that the motion to dismiss was brought and decided at the outset of the hearing. Vice Chair Clifton did not rescind his findings that CAT had jurisdiction overt the parking space dispute when he recused himself. Second, member Sanford relied on the findings made by Vice Chair Clifton about CAT’s jurisdiction when she proceeded to hear the application. She did not allow further evidence or submissions to re-open that issue.

[29] If I am wrong that the formation of intent to challenge the early dismissal Order is not made out by the intention to challenge the latter Order, I refer to the request made by counsel for 779 on January 19, 2020, to Vice Chair Clifton to recuse himself. This request is clear evidence that 779 was not content with the decision made seven days before, and of the intent to challenge its correctness within the appeal period.

b) Delay

[30] I find the error made by counsel for 779 to bring an application for judicial review provides a reasonable explanation for the delay in bringing an appeal. In 690 King Street Corp v. Desco Plumbing and Hearting Supply Inc., 2021 ONSC 1050 (Div. Crt.), this Court found that the failure of counsel to select the correct appeal route for a case was a ‘’compelling reason’’ for the delay.

c) Prejudice

[31] I am also directed by 779’s factum to the 690 King decision and to 40 Park Lane Circle v. Aiello, 2019 ONCA 451 to explain that the relevant consideration as to the prejudice in a case. These authorities explain that prejudice in that sense relates not to prejudice resulting from the progress of the appeal had it been commenced in time. Instead, it relates to prejudice that the delay in filing the notice of appeal would cause if an extension is granted.

[32] On this motion, I do not consider that Mr. Rahman will suffer any greater prejudice from the delay in commencing the appeal than the litigation stress and inconvenience he would have encountered had the appeal been pursued in time. Mr. Rahman has filed no evidence of prejudice to his case because of the passage of time. He will still be subject to opposing the appeal in 2022 just as he would have been had the appeal been commenced on time in February 2021.

d) Merits of the appeal

[33] Finally, in terms of making an inquiry into the merits of the appeal, the courts have been clear that the question is not whether the appeal will succeed, but rather if it has ‘’so little merit that the court could reasonably deny the important right of an appeal.’’ See 690 King, 40 Park Lane Circle and Issai v. Rosenberg, 2011 ONCA 112.

[34] Under that part of his factum concerning “Facts,” Mr. Rahman sets out three paragraphs to oppose the motion to extend time to appeal. It is evident from these submissions that Mr. Rahman is focusing on that part of the test relating to the merits of the appeal. The submissions made in these paragraphs are not persuasive on the issues before this court on this motion for the following reasons:

1. In paragraph 1, Mr. Rahman states that no claim was made to invoke s. 117 of the Act until Mr. Lee, counsel for 779 raised it in the course of challenging the jurisdiction of CAT to hear his application. The applicability of s. 117 in the context of CAT’s jurisdiction was dealt with member Sanford ruled in para. 3 of her decision at 2021 ONCAT 13. Member Sanford held that the issue of CAT’s jurisdiction in this case had been decided earlier in the proceeding and it was not appropriate to decide the matter again. In that earlier decision, Vice Chair Clifton had considered whether impugned conduct alleged against Mr. Rahman would qualify under s. 117 to oust CAT’s jurisdiction in the case at para. 11 of his decision. The issue on this motion is not whether 779 did or did not raise s. 117 before legal proceedings began, but rather how it was dealt with by the Order of a tribunal from which an appeal is proposed.

2. In respect of the enforceability of s. 117 in para. 2, Mr. Rahman challenges the merits of the motion because neither party made an application to enforce s. 117 of the Act. I do not consider this argument to preclude the application of s. 117 to any issue on CAT’s jurisdiction over the parking space issue and the surrounding behavior of the parties. Section 117 relates to prohibitive conduct and does not require an application to enforce it. It was open for either party to rely upon it at the tribunal level, or on any appeal where it is made an issue.

3. Mr. Rahman makes twelve submissions as “preliminary technical matters” in para. 3 under “Facts.” Those submissions relating to the lien that 779 registered against title to his unit, and the steps taken to sell his unit under a power of sale. This motion relates to an appeal from decisions concerning his right to park in an accessibility space on the common elements of 779, not the lien 779 has registered. Mr. Rahman has already chosen the Superior Court of Justice as his forum to seek damages, and the CAT to determine the parking space dispute.

4. Mr. Rahman also refers to a proceeding that 779 initiated to the Court of Appeal for Ontario without notice to himself. There is no evidence of that proceeding in the materials filed. For instance, I do not know whether Mr. Rahman is referring to an appeal or a motion for leave to appeal the Order of the Divisional Court that dismissed the application for judicial review.

5. Finally, Mr. Rahman refers to the failure of the board of directors for 779 to comply with their duties at law. He has already challenged the constitution and indirectly the competence of the board in another application to the CAT subsequent to the events concerning the parking space dispute. That application was dismissed on January 14, 2022 at 2022 ONCAT 5 by Chair Ian Darling. In his decision, the Chair found that Mr. Rahman was mistaken about his belief that the CAT had the authority to deal with matters of board governance and election practices, particularly the appointment of “honorary officers.”

[35] Even though he did not file any evidence in response to this motion, Mr. Rahman would be at liberty to refer to findings made by the CAT in his factum or in argument on any appeal.

[36] Based on the limited materials before me on this motion, the grounds of the proposed appeal are not completely devoid of merit. 779 should not be denied an extension of time to appeal on that basis: 40 Park Lane Circle, at para. 9.

Further considerations

[37] There is also a jurisprudential value to allowing this appeal to go forward. The motion materials of 779 suggest that the CAT decision in this case was one of the first, if not the first reported decision to consider the CAT’s newly expanded jurisdiction under O.Reg. 179/17 as of October 1, 2020. The interpretation of the applicable sections of the amended regulation as it relates to the power of the CAT to hear disputes will further the development of the law.

[38] While 779 has made mis-steps in the legal process to address the parking space dispute with Mr. Rahman, none are fatal to a finding that there are issues which should be considered on appeal by this Court. The decision of the CAT raises questions of law as now defined by this Court in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Crt.) Kristjanson J. made this determination on the issues raised by 779 on the application for judicial review in this matter where she stated at para. 20 that the core issues raised could have been raised as questions of law on a statutory appeal. These questions “include issues about whether the CAT had the jurisdiction to consider the application, failures of procedural fairness including a reasonable apprehension of bias, and errors of law relating to damages and costs of enforcement.”

[39] I therefore find on the evidence that 779 has satisfied the test for this Court to grant an extension of time to appeal.

Conclusion and Costs

[40] After considering all the circumstances, I conclude that the over all justice of the case requires that an Order be made to extend the time for 779 to appeal the Order of the Condominium Authority Tribunal dated February 16, 2021. The motion is granted. The time for 779 to appeal is extended to October 21, 2022.

[41] The parties are encouraged to settle the costs for this motion between them. If they cannot agree, either party may serve and file written submissions to claim costs by October 28, 2022. The other party may then file responding submissions by November 25, 2022. There shall be no submissions in reply without leave.

[42] All submission are limited to two pages, not including any offer to settle or bill of costs, and may be filed by email to my judicial assistant at melanie.powers @ontario.ca.

Emery J.

Released: September 29, 2022

CITATION: PSCC No. 779 v. Rahman, 2022 ONSC 5166

DIVISIONAL COURT FILE NO.: DC-21-0043

DATE: 2022 09 29

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

AQIB RAHMAN

Respondent

– and –

PEEL STANDARD CONDOMINIUM CORPORATION NO. 779

Appellant

REASONS FOR DECISION (ON THE MOTION TO EXTEND TIME TO APPEAL)

Emery J.

Released: September 29, 2022