Court File and Parties

Citation: Sterling v. Upper Lansdowne Management, 2022 ONSC 5848 Divisional Court File No.: 555/22 Date: 2022-10-14 Superior Court of Justice – Ontario Divisional Court

Re: Adrian Sterling, Appellant And: Upper Lansdowne Management, Respondent

Before: O’Brien J.

Counsel: A. Sterling, Self-Represented M. Melchers for Upper Lansdowne Management K. Snukal for the Landlord and Tenant Board

Heard at Toronto: October 14, 2022

Endorsement

O’Brien J. (Orally):

[1] This is the return of a motion I heard on an urgent basis last week. The moving party, Mr. Sterling, brings the motion seeking an extension of time to file his Notice of Appeal. Last week I ordered interim terms staying his eviction until today. A representative of Upper Lansdowne Management (“Upper Lansdowne”) did not attend last week due to the short notice. A term of the stay was to require Mr. Sterling to pay this month’s rent by October 12, 2022. He was required to provide proof of that payment at today’s attendance. I understand that he has now paid the full amount for October.

[2] The following is the background of this matter: By decision dated August 10, 2022, the Landlord and Tenant Board (the “Board”) made an order requiring Mr. Sterling to vacate his rental premises for non-payment of rent. Mr. Sterling failed to file his Notice of Appeal within 30 days, as required by s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Mr. Sterling seeks an extension to file his Notice of Appeal so that the automatic stay of eviction provided for by r. 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 comes into effect.

[3] Mr. Sterling used to be a superintendent for Upper Lansdowne. His employment agreement included a term that he would be provided with a unit for his residence. It also provided that should either party terminate his employment, he would vacate the unit within 7 days from the date of termination. Mr. Sterling was put on unpaid leave effective December 10, 2021. His employment was terminated on January 27, 2022.

[4] In the Board’s decision of August 10, 2022, it found that it did not have jurisdiction to make rulings on the validity of Mr. Sterling’s employment or the termination of his employment. However, it did find that following the termination of Mr. Sterling’s employment, he and Upper Lansdowne entered into a tenancy agreement. The Board also found that the rent for the unit was $2,000.72 per month and the arrears owing to that date were $7,613.27. It ordered that the tenancy was terminated unless Mr. Sterling voided the order. He could do so by making payment of $9,799.99 by August 31, 2022. If he did not make this payment, he was required to move out of the unit on or before August 31, 2022.

[5] Mr. Sterling did not file an appeal within 30 days from the Board’s order. On September 22, 2022, he received a Notice to Vacate from the sheriff directing him to vacate the rental unit by October 10, 2022.

[6] Mr. Sterling’s primary assertion in his Notice of Appeal and before the Board relates to his position that his employment was terminated unlawfully. Specifically, his employer insisted he be vaccinated for COVID-19 as a condition of his employment. Mr. Sterling claims he is not vaccinated for religious reasons and that, therefore, his termination is in violation of his rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”). Mr. Sterling also submits that following his termination, Upper Lansdowne refused to enter into a written tenancy agreement with him, although there were terms for him to pay rent set out in the original letter placing him on unpaid leave.

[7] In deciding whether to grant an extension of time to bring an appeal, the court is to consider “whether the ‘justice of the case’ requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all the relevant considerations”: Mitrou v. Singh, 2021 ONSC 5324, at para. 14; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16. The factors for the Court to consider, as identified in Enbridge are:

(a) Whether the moving party formed an intention to appeal within the relevant period;

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

(c) The prejudice to the responding party; and

(d) The merits of the appeal.

[8] At the hearing last week, I read these considerations to Mr. Sterling so he would be aware of the test he needed to address today.

Intention to Appeal

[9] There is no evidence that Mr. Sterling formed an intention to appeal the Board’s order until he received notice from the sheriff that the order would be enforced. However, this on its own would not be sufficient to deny him an extension of time.

Length of the Delay and the Explanation for it

[10] The length of the delay in this case is less than one month since the Notice of Appeal was due to be filed. This is not excessive, although significant arrears of rent have accumulated. Upper Lansdowne acknowledges that the delay was not particularly long.

Prejudice to the Responding Party

[11] Upper Lansdowne acknowledges that the delay itself has not caused significant prejudice. However, it says it would be prejudiced by any further delay given Mr. Sterling’s substantial arrears. Upper Lansdowne’s evidence is that the current arrears total $12,615.39. However, I understand that since the filing of Upper Lansdowne’s material, Mr. Sterling has made an additional payment of $1,000.00 in rent to complete the $2,0000.00 owed before the return of this motion. Therefore, I understand the current arrears to be $11,615.39.

[12] The reason Upper Lansdowne faces prejudice by further delay is there does not appear to be any likelihood Mr. Sterling will be able to pay the full rent in the near future. Although there was no sworn evidence to this effect, Mr. Sterling stated orally today that since the last attendance he has obtained part-time employment. He is continuing to search for full-time employment. I applaud him for these efforts. However, Mr. Sterling also admitted that he is not at this point in a position to pay the full monthly rent. He stated that he would be willing to “contribute something.” Extending the time for Mr. Sterling to file his Notice of Appeal would cause ongoing prejudice to Upper Lansdowne, as Mr. Sterling effectively has acknowledged the arrears of rent will continue to increase.

Merits of the Appeal

[13] Finally, and importantly, I do not see merit to Mr. Sterling’s proposed appeal. Pursuant to s. 210(1) of the Residential Tenancies Act, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law.

[14] A lack of merit of the proposed appeal can, on its own, justify denying an extension of time: Enbridge, at para. 16.

[15] In this case, the Notice of Appeal does not articulate any of the grounds of appeal as an error of law. For example, the Notice of Appeal states that the Board made an “error of fact,” as Mr. Sterling’s evidence did not pertain to his employment but did pertain to his tenancy. It states that the appellant “would like to have the evidence re-evaluated.” The Notice of Appeal also states that it was a breach of contract to put Mr. Sterling on unpaid leave and that he was denied a rental lease after the termination of his employment.

[16] Providing allowance for the fact that Mr. Sterling is self-represented, I have considered whether there might be an error of law in the Board’s refusal to consider the circumstances of Mr. Sterling’s termination. The Board refused to do so in part due to Mr. Sterling’s failure to serve his material in advance of the hearing. But it also found it did not have jurisdiction to make rulings on the validity of his employment or the termination of his employment. To that end, I have considered whether, given the Board’s authority to apply the Code, it was an error to refuse to consider whether Mr. Sterling’s termination occurred in violation of the Code.

[17] I conclude that there is no merit to the argument that the Board should have considered allegations under the Code in this case. This Court has consistently held that the Board does not have jurisdiction to consider the legality of the termination of an employee: see, for example, Rio Algom Ltd. and Turcotte (1978), 1978 1727 (ON SC), 20 O.R. (2d) 769 (Div. Ct.) and Onucki v. Fudge, [1990] O.J. No. 2175 (Div. Ct.).

[18] Even if the Board had the jurisdiction to consider the Code in determining whether it should grant relief from eviction pursuant to s. 83 of the Residential Tenancies Act, Mr. Sterling was not evicted in this case because of the termination of his employment, but because of the non-payment of rent. That is, the Board found that following the termination of Mr. Sterling’s employment, he and Upper Lansdowne agreed he could stay on as a tenant and pay market rent. The reason for his eviction therefore was non-payment of rent and not the termination of his employment. Mr. Sterling does not dispute the rental arrears that have accumulated, although he points out he has made an effort to pay rent where possible.

[19] I also do not see any merit to an appeal based on Mr. Sterling’s arguments that Upper Lansdowne refused to provide him with a lease or that it was a breach of contract to require him to pay rent while on unpaid leave. The Board found the parties had entered into an oral tenancy agreement. I do not see how a written tenancy agreement would affect the merits of this case.

[20] With respect to the unpaid leave, in Mr. Sterling’s employment agreement it was clear that the rent-free unit constituted part of his compensation. The agreement also had a provision that with other types of leaves, such as for family or medical illness, the apartment benefit would only continue for up to two weeks, after which rent would be owed. In any event, there is no dispute that significant arrears of rent accumulated after Mr. Sterling’s unpaid leave ended. I do not see any merit to this argument on appeal.

Overall Justice of the Case

[21] Considering the overall justice of the case, I do not find that Mr. Sterling has shown he should receive an extension to file his Notice of Appeal. I am influenced almost entirely by the lack of merit to the appeal and the ongoing prejudice to Upper Lansdowne, given Mr. Sterling’s acknowledgment that he will not be able to pay the full rent owed, at least in the short term.

Disposition

[22] Therefore, the motion is dismissed. As Mr. Sterling has now paid the full rent owed for October, I will provide him with some additional time to make other arrangements. He will not be required to vacate the unit until November 11, 2022. If he has not vacated the unit on or before November 11, starting November 12, 2022, this order may be enforced by the Court Enforcement Office.

Costs

[23] Upper Lansdowne has filed a Bill of Costs seeking costs on a partial indemnity basis of $2,210.95. This is a reasonable quantum for this motion, given that Upper Lansdowne filed an affidavit and factum and appeared on the motion. I order Mr. Sterling to pay Upper Lansdowne costs of $2,000.00.

Date: October 14, 2022