CITATION: McPherson v. Toronto Community Housing Corporation, 2023 ONSC 2344
DIVISIONAL COURT FILE NO.: 489/20
DATE: 20230417
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DAHLIA MCPHERSON
Appellant/Responding Party
– and –
TORONTO COMMUNITY HOUSING CORPORATION
Respondent/Moving Party
No one Appearing, for the Appellant /Responding Party
K. Douglas, for the Respondent/Moving Party
HEARD at Toronto: April 17, 2023
O’Brien J. (Orally)
ENDORSEMENT
[1] The Respondent on the appeal, Toronto Community Housing Corporation (“TCHC”), brings this motion seeking to dismiss this appeal for delay.
[2] The Appellant, Ms. McPherson, is a residential tenant of TCHC. In October 2020, TCHC obtained an order from the Landlord and Tenant Board (“Board” or “LTB”) requiring Ms. McPherson to pay significant rental arrears and terminating the lease. Ms. McPherson filed this appeal from the Board’s order. Ms. McPherson’s underlying concern was that the TCHC had terminated her eligibility for rent-geared-to-income (“RGI”), which had previously meant her rent was reduced. She received notice of her loss of eligibility for RGI in March 2019. She did not seek a review of the decision by the City of Toronto until over two years later, in August 2021. The City’s Review Body denied the request for review on the basis that she was well beyond the deadline to make such a request and had not provided an adequate justification for the delay.
[3] Ms. McPherson then brought a judicial review of the Review Body’s decision to this court. The court held this appeal in abeyance pending the disposition of that judicial review. By Reasons for Decision dated April 19, 2022 (McPherson v. City of Toronto, 2022 ONSC 2109), the court dismissed the application for judicial review.
[4] TCHC states that Ms. McPherson has failed to consistently pay full rent since the loss of her RGI status, with current arrears totaling over $60,000. In its submission, the appeal should be dismissed for delay given that Ms. McPherson filed the appeal over two and a half years ago and has not yet confirmed that she has ordered a transcript of the LTB hearing, as required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It also submits her appeal is bound to fail given that she was unsuccessful on the underlying basis in the judicial review.
[5] This motion was scheduled at a case conference on January 23, 2023. Ms. McPherson’s counsel attended the case conference, although indicated he had not been able to obtain instructions from his client. Leiper J. directed that he was no longer counsel of record. Leiper J. also directed that Ms. McPherson was to file any additional materials for the motion by March 16, 2023. I am advised that TCHC staff was in touch with Ms. McPherson directly after the case conference and confirmed her availability for today’s date. Ms. McPherson did not file any materials other than an affidavit dated October 24, 2021, which had been filed previously. She also did not attend today’s motion. Given the history of delay and that Ms. McPherson had notice of today’s motion and counsel throughout (until January 23, 2023), after waiting 15 minutes, the motion proceeded in her absence.
[6] Pursuant to r. 61.05(5), an appellant is required to order any transcripts listed in the respondent’s certificate respecting evidence within 30 days of filing the notice of appeal. If the appellant fails to do so, the respondent may move before the Registrar under r. 61.13(1) for an order dismissing the appeal for delay. Under r. 61.13(3), the Registrar is required to dismiss the appeal for delay if the appellant has not cured the default before the hearing of the motion.
[7] Although the Rules do not specifically provide for the court to dismiss an appeal for delay, it may do so in appropriate circumstances, applying the above rules by analogy pursuant to r. 1.04(2). Here, although the appellant was in default of the Rules after filing her notice of appeal, her matter was held in abeyance pending the resolution of the application for judicial review. Still, it has been almost a year since the decision on the judicial review was released and the appellant has taken no steps to cure her default. She filed an affidavit dated October 24, 2021, which is almost 18 months ago, in which she explained that she was unemployed and asked for two months to raise money to pay for the transcripts.
[8] Given the passage of time, there is no reasonable explanation for Ms. McPherson’s failure to pursue this appeal. The appeal was started almost two and a half years ago. Although it was held in abeyance, the Divisional Court decision on the judicial review was released almost a year ago. There is no evidence that Ms. McPherson has obtained the LTB transcripts or taken other steps to perfect her appeal and she did not participate in this motion. In these circumstances, her appeal is dismissed for delay.
[9] I will sign the order in the form provided by TCHC. There are no costs ordered with respect to the motion or the appeal.
___________________________ O’brien J.
Date of Endorsement: April 17, 2023
Date of Release: April 17, 2023
CITATION: McPherson v. Toronto Community Housing Corporation, 2023 ONSC 2344
DIVISIONAL COURT FILE NO.: 489/20
DATE: 20230417
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DAHLIA MCPHERSON
Appellant/Responding Party
– and –
TORONTO COMMUNITY HOUSING CORPORATION
Respondent/Moving Party
ENDORSEMENT
o’brien J.
Date of Endorsement: April 17, 2023
Date of Release: April 17, 2023