CITATION: Brown v. Toronto Community Housing Corporation, 2024 ONSC 1216

DIVISIONAL COURT FILE NO.: 102/23

DATE: 20240228

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Anthony Brown Appellant

AND:

Toronto Community Housing Corporation Respondent

BEFORE: Justice O’Brien

COUNSEL: A. Brown, Self-Represented

K. Douglas, for the Respondent

HEARD: via videoconference on February 23, 2024

ENDORSEMENT

Overview

[1] Over a year ago, Mr. Brown filed a notice of appeal from a decision of the Landlord and Tenant Board that ordered his eviction effective January 23, 2023. His eviction was automatically stayed pending appeal. The appeal was scheduled to be heard on February 23, 2023. Mr. Brown did not perfect his appeal and e-mailed the court in advance of the February 23 attendance to state that he was requesting an adjournment. After hearing the parties’ submissions, I advised the parties that I was denying the adjournment and dismissing the appeal with reasons to follow. These are my reasons.

Multiple Extensions to Perfect Appeal

[2] Mr. Brown has been given multiple extensions and opportunities to file materials on the appeal. The following sets out the background of the extensions and other attempts by the court to ensure he had a full opportunity to present his case, while also taking into account his obligation to move his appeal forward in a timely way, as set out in the Divisional Court Consolidated Practice Direction.

[3] Mr. Brown’s notice of appeal was dated February 16, 2023. Mr. Brown requested delays at the outset of his case, after which a schedule was set for the exchange of materials on the appeal in September 2023. Pursuant to that schedule, Mr. Brown’s appeal materials were due on October 23.

[4] On October 3, Mr. Brown indicated that he had made a complaint to the Canadian Judicial Council (CJC). In response, he was notified that the complaint did not result in the court proceeding being on hold and that the existing schedule remained in place.

[5] Mr. Brown did not meet the October 23 deadline for his materials. On December 27, he emailed the court requesting that his appeal be put on hold until a decision was received from the CJC. Matheson J. denied that request in January 16, 2024 directions. In her directions, Matheson J. also stated that Mr. Brown had already been given an extended schedule with an October due date and had since had three more months. She considered the lengthy delay was “unacceptable” but stated he would have “one last opportunity” to serve and file his court materials, failing which the respondent could bring a motion to quash the appeal. She gave Mr. Brown until February 2 to file his appeal materials for the February 23 hearing date. He did not do so.

[6] On February 9, the court received an e-mail from counsel who said she had met with Mr. Brown but would require an adjournment of the appeal. She stated she was only available the weeks of April 10 and May 15, 2024.

[7] By directions dated February 12, Matheson J. noted that Mr. Brown had already had extensions of time, had “still failed to take steps to move his appeal forward,” and had “repeatedly failed to comply with the directions of this court.” She advised that the court would consider the adjournment on certain terms. Specifically, she directed:

Despite the history of this matter, the Court will consider the adjournment request provided the appellant’s counsel provides the court with a proposed schedule for the delivery of the appeal materials within one week from today. The proposed schedule will reflect the length of time counsel requests for preparation. The respondent may give any changed position. The adjournment request will be addressed in the context of the proposed schedule.

[8] On February 13, Mr. Brown wrote to the court reiterating the request for an adjournment and saying that his lawyer was unavailable until February 20. On February 15, Matheson J. granted an extension until February 21 for Mr. Brown’s counsel to email the court with a proposed schedule.

[9] On February 16, Mr. Brown’s counsel wrote to the court stating that the lack of clarity about whether there was an adjournment was creating “too much uncertainty” for her and that she had even less availability than previously indicated. She stated that she would not go on the record for Mr. Brown.

[10] On February 21, Matheson J. issued directions stating that because of the history of the matter, she was not prepared to grant an adjournment based on the emails provided by the parties. She stated that Mr. Brown could request an adjournment at the outset of the February 23 hearing and the judge would decide whether to grant an adjournment. She noted that if the adjournment was not granted, the respondent could request that the matter be dismissed for delay or for failure to comply with the court’s directions.

[11] On February 22, Mr. Brown wrote to the court stating that he was submitting a complaint to the Human Rights Tribunal and that the Human Rights Tribunal was required to address his complaint first such that his appeal should be adjourned.

Response to Mr. Brown’s Submissions

[12] At the hearing, Mr. Brown made two main submissions in support of his adjournment request:

1. This appeal should be adjourned until his application to the Human Rights Tribunal is determined since human rights have “primacy.”
2. He has been making extensive efforts to retain a lawyer and has been unable to do so.

[13] I was not persuaded to grant an adjournment by either submission.

(a) Human rights application

[14] In response to the first submission, although Mr. Brown did not provide the court with any particulars, he broadly alleged the respondent landlord had violated his human rights. He advised the court that he filed his application with the Human Rights Tribunal on January 23, 2024, which is a full year after the Board ordered his eviction to be effective.

[15] There were two orders of the Board leading to Mr. Brown’s eventual eviction. Neither order suggests that any human rights issue was raised before the Board, although the Board has jurisdiction to consider human rights violations in the context of the landlord and tenant relationship. The first order, dated July 20, 2022, was on consent and responded to the landlord’s application for an order to terminate the tenancy. The parties agreed to an order requiring Mr. Brown to comply with multiple terms, including not to seriously impair the safety of others and specifically to clear his balcony from all combustible and hazardous items. He was also required to cooperate with the landlord regarding unit inspections, repairs, renovations and treatment and could not deny entry with lawful notice. There is no reference to any arguments related to Mr. Brown’s human rights.

[16] In the subsequent order dated January 12, 2023, the Board found that Mr. Brown had “deliberately and willfully violated the conditions” of the consent order. In considering relief from eviction, the Board noted that Mr. Brown had flooded the unit on multiple occasions and had a history of screaming, shouting, and being aggressive and abusive toward other tenants and the respondent’s staff. Again, there is no suggestion that Mr. Brown raised any human rights violations.

[17] In short, Mr. Brown had the opportunity to but did not raise human rights issues before the Board. Having failed to do so, he cannot rely on his recently filed application before the Human Rights Tribunal as a basis for adjourning this appeal.

(b) Inability to find a lawyer

[18] Although Mr. Brown’s inability to find a lawyer is concerning, there is no reasonable prospect Mr. Brown will retain a lawyer, even if an adjournment is granted. The court offered Mr. Brown’s previous counsel an opportunity to propose a schedule for the exchange of materials. She was not only unavailable for the scheduled appeal, but she was not even prepared to provide a proposed schedule. In these circumstances, there was no comfort that the appeal would move forward at any acceptable pace. In any event, by the date of the hearing, she had withdrawn her representation.

[19] Mr. Brown was assisted at the hearing by a case manager and a family member, both of whom he asked to make statements to assist him in communicating and clarifying his position, which the court permitted. Although Mr. Brown had a legal aid certificate, his case manager acknowledged there did not seem to be any reasonable prospect of retaining a lawyer if an adjournment were to be granted.

Merits of the Appeal

[20] Mr. Brown’s notice of appeal, which, again, was filed over a year ago, does not list any ground of appeal that raises a recognizable error of law. The notice of appeal identifies the grounds of appeal as follows:

Both Hearings and subsequent Orders on July 20, 2022 in (File TSL-14454-20) and on January 12, 2023 in (LTB-L-052939-22) are “Contrary” to the “Standing Order” in (File TSL-14454-20) from Dec 7 2020 until July 20 2022 that Ordered a “Merits Hearing” before any “Punitive action Hearing” and both aforementioned Hearings by TCHC legal “Failed to comply” or alternately “Seek Leave” to conduct either of the “Eviction” Hearings on both June 28, 2022 [that led to the consent order] and January 4, 2023 [leading to the eviction order].

[21] Reading these grounds as generously as possible, I cannot find any arguable error of law. The December 7, 2020 order was an interim order of the Board arising from a case management hearing. The order stated that a “Merits Hearing” would be scheduled because there was “no possibility to resolve the issues in dispute.” The order included terms for the exchange of evidence before the merits hearing. The order did not refer to a “punitive action” hearing. There is no usual practice at the Board for a subsequent hearing after a hearing on the merits to determine remedy, nor is it necessary to obtain leave for a hearing in which an eviction is sought.

[22] The consent order stated the terms of the order were subject to s. 78 of the Residential Tenancies Act, 2006. Section 78 permits a landlord to move without notice to the tenant to apply to the Board for an order terminating a tenancy after a settlement in certain situations. However, in this case, the terms of the consent order required the landlord to provide notice to Mr. Brown by email to his case worker before any such application was brought. There is no suggestion in the material that Mr. Brown did not receive notice of the hearing leading to the eviction order. The order indicates that he attended the hearing.

[23] Therefore, I cannot extricate any arguable allegation of a breach of procedural fairness or other error of law in the notice of appeal.

Conclusion

[24] 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.

[25] Despite the delay in the schedule and the many extensions granted to Mr. Brown, as detailed above, counsel for the respondent advised that Mr. Brown has taken no steps to pursue the appeal. For example, to her knowledge, no recording had been requested from the Board and she has not received any transcript of the hearing. Mr. Brown has repeatedly failed to comply with the schedules established by the court and has asserted unmeritorious grounds, such as the complaint to the CJC and filing a human rights application, apparently in an attempt to delay this matter. Most importantly, there is no realistic chance that an adjournment will improve the situation, as there is no reasonable prospect Mr. Brown will retain a lawyer. The appeal is dismissed both for delay and for failure to comply with the directions of the court.

[26] Mr. Brown has continued to pay rent and there is therefore no accumulating prejudice to the landlord if his eviction does not occur immediately. The respondent suggested I provide Mr. Brown with 60 days to move out of the rental unit whereas Mr. Brown requested 90 days. I accept that Mr. Brown will have difficulty finding new housing and therefore have decided to continue the stay of the Board’s eviction order until 90 days from the date this decision is released. After that time, the Board’s order may be enforced.

[27] No costs were requested of the attendance before me and none are ordered.

O’Brien J

Date: February 28, 2024