Court File and Parties

DIVISIONAL COURT FILE NO.: 411/23 DATE: 2024-02-16

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: KELLY GOLDFEDER, Appellant/ Tenant AND: PAVAL KANAGATHURAI, Respondent/ Landlord

BEFORE: LEIPER, J.

COUNSEL: Self-represented Appellant/ Tenant Michael W. Ruso and Khaled Gheddai, for the Respondent/ Landlord

HEARD: In Writing

Endorsement

[1] On October 30, 2023, the respondent landlord moved successfully before O’Brien J. for an order dismissing the tenant, Ms. Goldfeder’s appeal from an order of the Landlord and Tenant Board which terminated her tenancy: Goldfeder v. Kanagathurai ONSC 6130.

[2] The issue before O’Brien J. was whether the appeal should be dismissed due to Ms. Goldfeder’s delay in filing her appeal material and failure to comply with the court’s directions.

[3] Justice O’Brien granted the motion to dismiss based on Ms. Goldfeder’s failure to attend a case conference on August 17, 2023, findings made by the Board that the tenant failed to act in good faith during the proceedings below, and non-compliance by Ms. Goldfeder with case management directions from Schabas, J. and Matheson, J.

[4] The landlord sought a case conference after Ms. Goldfeder failed to comply with Justice Schabas’s directions. Ms. Goldfeder did not attend the case conference. Justice Matheson gave Ms. Goldfeder a further opportunity to file her materials on the appeal with a deadline of October 3, 2023.

[5] Justice Matheson wrote:

Over the landlord’s objections, the tenant shall have one more opportunity to serve and file their court materials required for this appeal. If the tenant fails to comply, the landlord may request that the court lift the stay, that the eviction proceed, and that the appeal is dismissed.

[6] Ms. Goldfeder did not file her material in accordance with these directions, leading to the motion before Justice O’Brien who observed:

It has been almost a month since Ms. Goldfeder’s materials were due pursuant to Justice Matheson’s directions and she has not filed any information to contest the landlord’s affidavit. Rule 3.04(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 authorizes the court to dismiss a proceeding for failure to comply with a timetable. Rule 61.13(1)(b) permits a Registrar and, by analogy, a judge, to dismiss an appeal for delay.

I am satisfied that Ms. Goldfeder has been given sufficient opportunity to demonstrate she intends to pursue her appeal and has failed to do so. The appeal is dismissed. The landlord my provide a draft order to my attention. Ms. Goldfeder’s consent to the order is dispensed with.

[7] On December 21, 2023, I held a case conference with the parties because Ms. Goldfeder’s advising the landlord and the court that she intended to seek a review of Justice O’Brien’s order pursuant to s. 21(5) of the Courts of Justice Act. However, Ms. Goldfeder did not move in time to do so, which meant that she would require an extension of time. The landlord was not prepared to consent to any extension of time.

[8] Ms. Goldfeder attended the December 21, 2023 case conference, as did counsel to the landlord. Among other directions, I fixed a timetable for the exchange of materials for Ms. Goldfeder’s motion to extend time. Over the course of the next six weeks, Ms. Goldfeder requested accommodations and further extensions to file her material. Although initially representing that her material could be provided by December 22, 2023, Ms. Goldfeder, sought and obtained extensions to December 27, 2023, January 23, 2024, and then to February 9, 2024. She also sought other relief, not pertinent to this motion, which have been the subject of multiple directions and additional information from the court.

[9] In my directions of January 31, 2024, I included this information:

Ms. Goldfeder has also sought a further extension of time to file her materials. I must consider fairness to counsel to the landlord in providing time for a response, however I also consider that Ms. Goldfeder may be filing an accompanying motion to redact sensitive information that she may rely upon. On balance, I will provide a final extension, failing which if Ms. Goldfeder has not filed her materials for the motion, I may dismiss the motion.

[10] Ms. Goldfeder provided requests for accommodation from the court for filing and latterly, concerning converting the extension motion from an in-writing appearance to a video conference appearance. I took these requests into account and over the objections of the landlord made extensions and indicated that I was prepared to consider the request for a video conference of the motion. I provided Ms. Goldfeder with information on how to obtain a sealing order over any private medical records she sought to file. The landlord indicated that he would consent to such an order. No such motion has been provided.

[11] Ms. Goldfeder has not met any of the timelines for her material on the motion to extend time. On February 1, 2024, Ms. Goldfeder wrote to the court to advise that she was filing her material, “tomorrow.” This did not take place.

[12] On February 13, 2024, Ms. Goldfeder wrote that she would be filing her material by “1 p.m. today.” That did not happen.

[13] On February 14, 2024, counsel to the landlord wrote to advise the court that Ms. Goldfeder had not served any materials for the motion on him, that the landlord is suffering ongoing costs and prejudice from the delays and that there is no basis to schedule a hearing of the motion to extend time to review the order of Justice O’Brien. Counsel requested that I consider a dismissal of this motion for delay, as I stated in my directions to the parties of January 31, 2024.

[14] On balance, I conclude that no further extensions should be granted, and that there is no basis to schedule a hearing of the motion. There are no materials on the issue of the extension available to which the landlord need respond. More than three months have passed since Justice O’Brien’s order dismissing the appeal. Fairness demands some finality in this case. I dismiss the motion for an extension of time for delay and failure to abide by the court’s directions. The order of Justice O’Brien dismissing Ms. Goldfeder’s appeal in this matter stands.

Leiper, J.

Date: February 16, 2024