CITATION: Latham v. Marazzi, 2022 ONSC 6912

DIVISIONAL COURT FILE NO.: 602/22

DATE: 20221207

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ryan Latham

(Appellant/Moving Party)

AND:

Mario Marazzi

(Respondent in Appeal/Responding Party)

BEFORE: Justice O’Brien

COUNSEL: K. Wakely, for the Moving Party

B. Moldaver, for the Responding Party

HEARD: December 6, 2022

ENDORSEMENT

Overview

[1] The moving party Tenant, Mr. Latham, brings this motion seeking an extension of time to file a Notice of Appeal of a decision of the Landlord and Tenant Board (“LTB”) dated July 20, 2022. However, since his motion material were first filed, the Tenant now takes the position the motion is moot because of a review order issued by the LTB dated November 16, 2022. The Tenant still has time to appeal the review order.

[2] On July 20, 2022, the LTB issued an order terminating the tenancy between the Tenant and the responding party Landlord, Mr. Marazzi and requiring the Tenant to move out by September 30, 2022. The tenancy was terminated on the basis that the Landlord required vacant possession for the purpose of his own residential occupation.

[3] On August 11, 2022, the Tenant requested a review of the July 20, 2022 order (the “original order”). Although the LTB decided to dismiss the request for review without a hearing on August 17, 2022, the review order, which is dated November 16, 2022, states that “due to an administrative error, the order was not sent to the parties or their representatives at that time.”

[4] The Tenant did not file his Notice of Appeal with respect to the original order within the required 30 days. He therefore initiated this motion. However, prior to the hearing of the motion, he received the LTB’s review order. The review order denied the request for review, which meant the original order was confirmed The Tenant is not out of time to file a Notice of Appeal with respect to the review order. He now seeks an order from this Court permitting him to file an amended Notice of Appeal to appeal both the original order and review order together.

[5] The Landlord submits that the LTB’s decision to refuse the request for review does not constitute an “order” and is not appealable to this Court. He further submits that the Tenant did not demonstrate an intention to appeal the original order within the time for an appeal, that the Tenant’s appeal has no merit, and that he will suffer ongoing prejudice if the order sought by the Tenant is granted.

[6] For the reasons that follow, the motion is allowed.

Analysis

[7] As set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, the test on a motion to extend time for filing a Notice of Appeal is well settled. The overarching principle is whether the justice of the case requires that an extension be given. The Court is to take into account all relevant considerations, including:

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

(2) The length of, and explanation for the delay in filing;

(3) Any prejudice to the responding party caused, perpetuated or exacerbated by the delay; and

(4) The merits of the proposed appeal.

A. Appeal of Review Order

[8] In this case, the review order impacts the analysis of the factors in Enbridge Gas. I reject the Landlord’s submission that the LTB’s decision on the request for review does not constitute an “order.” It is clear from the face of the LTB’s decision that the review order is an order of that tribunal. Further, the Landlord has not provided authority for the proposition that the review order is not appealable to this court. This Court regularly hears appeals from review orders. See, for example: Ali v. Toronto Community Housing Corporation, 2019 ONSC 3627.

[9] The fact that the Tenant still has time to appeal the review order does not render this motion moot. The Tenant still seeks to appeal the original order, which is supported by a separate set of reasons. Still, the review order confirmed the original order, which terminated the tenancy. Rule 63.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the delivery of a notice of appeal from an interlocutory or final order made under the Residential Tenancies Act, 2006 stays, until the disposition of the appeal, any provisions of the order declaring a tenancy agreement terminated or evicting a person.

[10] I do not need to determine whether the review order constitutes “an order declaring a tenancy agreement terminated or evicting a person” pursuant to r. 63.01(3)(a) if the original order is not appealed. I will proceed to address the factors in Enbridge Gas, but, overall, if the Tenant files the appeal of the review order in a timely manner, the justice of the case favours an extension of the time to appeal the original order. This will invoke the stay with respect to both orders.

B. Intention to Appeal

[11] The Landlord submits that the Tenant filed a review knowing that it did not provide for a stay and was not guaranteed to be resolved within a specific time frame. He states it is not a reasonable or reliable way to challenge an eviction order. He also emphasizes that seeking a review is different than initiating an appeal.

[12] In my view, this factor weighs in favour of the Tenant. He followed a process often used before the LTB before seeking an appeal. Although he then failed to file his appeal within the required time, by pursuing the request for review, he demonstrated his intention to challenge the LTB’s original order.

C. Length and Explanation for the Delay

[13] The Tenant filed this motion in late October when his Notice of Appeal would have been due in late August. However, the delay is not overly lengthy given the circumstance where the review order was not issued as quickly as expected. The LTB decided the review request within a short time frame, by August 17, 2022, but did not release it then. Although the Tenant should have proceeded with his appeal in time, it was not unreasonable for him to delay given that he was waiting to receive a decision on the request for review.

D. Prejudice

[14] If an extension of time is granted for the Tenant to file his Notice of Appeal and the eviction order is stayed, the Landlord will be prevented from moving into the rental unit occupied by the Tenant. He will presumably continue living in a smaller unit in the same complex. This constitutes some prejudice. However, in the overall circumstances of the case given the recent issuance of the review order, I do not find this prejudice sufficient to justify denying the extension of time for appealing the original order.

E. Merits

[15] The test for the proposed appellant to demonstrate merit to the appeal is not stringent. As set out in Duca Community Credit Union Ltd. v. Diovannoli and reproduced in Go Fleet Corporation v. So, 2021 ONSC 2199, where there is a right of appeal, the question is whether there is “so little merit to the proposed appeal that the appellant should be denied [his] important right of appeal.”

[16] Here, the Tenant has raised a question of law regarding the interpretation of sections 71.1(1) and (2) and 72(1)(a) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. These sections require a landlord who seeks to terminate a tenancy for their own residential occupation to file an affidavit stating that they in good faith require the unit for their own personal use for a period of at least one year. The Landlord did not file affidavit with the specific required wording in this case. However, the LTB in the original order relied on Sertic v. Mergarten, 2017 ONSC 263, in which this Court affirmed the entitlement of the LTB to accept the required affirmation by viva voce evidence when the affidavit was insufficient.

[17] The wording of the statutory provisions has changed since this Court’s decision in Sertic v. Mergarten. The Tenant has raised a question of law. Although I anticipate he may have an uphill challenge on appeal, his appeal is not of so little merit to be denied his right of appeal.

F. Overall Justice

[18] The overall justice of this case militates in favour of granting an extension of time to appeal the original order. The Tenant sought a review of that order, but, due to an administrative error, the LTB did not release the review order to the parties when it was first made. The Tenant is entitled to appeal the review order. In these circumstances, it is in the interests of justice for the appeal to also include the original order.

Disposition and Costs

[19] The motion is allowed. The Tenant is granted an extension of time to file his Notice of Appeal of the original order. By December 9, 2022, the Tenant shall file a Notice of Appeal seeking to appeal both the LTB’s original order and review order.

[20] The Tenant was successful and is entitled to his costs of the motion. He seeks costs on a substantial indemnity basis of approximately $7,000. The Landlord’s partial indemnity costs were $5,890.12. The Tenant advised at the hearing of the motion that he relied on an offer to settle made pursuant to r. 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Within 7 days, the Tenant shall file that offer to settle with the Court so that I may review it before releasing a decision with respect to the quantum of costs on this motion.

Date: December 7, 2022