Galeano v. Bradley Court Limited, 2022 ONSC 5811

DIVISIONAL COURT FILE NO.: 921/21

DATE: 20221013

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Carlos Arturo Jr Galeano, Appellant/Responding Party

AND:

Bradley Court Limited, Respondent/Moving Party

BEFORE: Nishikawa J.

COUNSEL: Mark Melchers, for the Respondent /Moving Party

No one appearing for the Appellant /Responding Party

HEARD at Toronto: October 13, 2022 (by videoconference)

ENDORSEMENT

[1] The Moving Party/Respondent (the “Landlord”) brings a motion to quash the Appellant’s appeal of the order of the Landlord Tenant Board (LTB) dated October 13, 2021, terminating the tenancy (the “Order”). Alternatively, the Moving Party seeks an order lifting the automatic stay pending appeal.

[2] The Appellant, Carlos Arturo Jr Galeano, did not appear at the motion. Counsel for the Landlord advises that Mr. Galeano is currently incarcerated. All motion materials were served on Mr. Galeano at the detention centre. Despite Mr. Galeano’s absence, I proceeded to hear the motion for reasons that will be apparent in this endorsement.

[3] In December 2021, D.L. Corbett J. granted Mr. Galeano’s motion for an extension of time to appeal the Order: 2022 ONSC 512. The endorsement makes clear that Mr. Galeano was being given a last chance. The extension of time was granted on strict terms that included the following:

• Payment of monthly rent of $1,026.15 on the first of every month;

• Payment of $500 per month in rental arrears on the 15th of each month; and

• Service and filing of a notice of appeal by January 31, 2022.

[4] Before this motion, Mr. Galeano was called upon to explain why he had failed to pay monthly rent and arrears.

[5] Mr. Galeano has failed to pay rent for July to October 2022. He has not made any payments toward the arrears from July to September. The outstanding arrears are currently $15,152.89. Moreover, the evidence shows that Mr. Galeano has a history of failing to pay his rent and failing to comply with plans to pay the arrears. The Order was one of four proceedings brought by the Landlord before the LTB.

[6] Subsection 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the court may, on motion, quash the appeal “in a proper case.” A proper case in which an appeal may be quashed is one where the appeal is “manifestly devoid of merit” or is an abuse of the court’s process “seeking solely to delay[.]” Solomon v. Levy, 2015 ONSC 2556, at para. 34.

[7] An appeal to this court of a decision of the LTB is on a question of law only: Residential Tenancies Act, 2006, S.O. 2006, c. 17. The notice of appeal served by Mr. Galeano identifies no grounds of appeal, let alone a question of law. The notice of appeal has no substantive content but contains only the parties’ information, the decision date and the adjudicator’s name. Moreover, despite the requirement that the notice of appeal be filed by January 31, 2022, Mr. Galeano failed to provide the notice of appeal until March 11, 2022, after a further direction from the court, following a case conference on March 3, 2022.

[8] The notice of appeal raises no grounds of appeal. As a result, I find that the appeal is manifestly devoid of merit. The appeal is quashed and the automatic stay is lifted.

[9] Given that Mr. Galeano is currently incarcerated and unable to retrieve his belongings from the apartment, and in order to enable Mr. Galeano to make arrangements, the Landlord’s counsel is to provide a copy of this endorsement and order to Mr. Galeano at the detention centre and, out of an abundance of caution, to his criminal lawyer. Mr. Galeano will have 10 days from today’s date to make arrangements with the Landlord for family members to retrieve his belongings. Failing that, Mr. Galaeno’s belongings shall be held in storage for 30 days so that his family members may retrieve them.

[10] The Landlord seeks partial indemnity costs of $3,406.27, including HST and disbursements. I find this to be a fair and reasonable amount, given the time taken and appearances before the court. The Appellant shall pay costs of the appeal in the amount of $3,406.27, all-inclusive.

“Nishikawa J.”

Date: October 13, 2022