Court File and Parties

CITATION: Ieraci v Parsons, 2024 ONSC 2013

DIVISIONAL COURT FILE NO.: 206/24

DATE: 20240405

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: FRANK IERACI, Appellant

-and –

MISTY PARSONS, Respondent

BEFORE: FL Myers J.

COUNSEL: Frank Ieraci, Applicant (Self-represented)

Nan Padmanathan for the Respondent

HEARD at Toronto: April 4, 2024

ENDORSEMENT

Background

[1] Mr. Ieraci is the landlord of a basement apartment formerly occupied by Ms. Parsons as a residential tenant.

[2] On January 2, 2024, the Landlord and Tenant Board released a decision finding that on July 5, 2021 Mr. Ieraci illegally evicted Ms. Parsons.

[3] The eviction occurred due to a flood in the apartment that was caused by work being performed outside the building by the City.

The Board’s Hearing and Decision

[4] At the hearing before the board, Mr. Ieraci gave evidence, and his paralegal representative made submissions, that Ms. Parsons had abandoned the tenancy because the apartment had become uninhabitable due to the flood.

[5] As a result of the abandonment by the tenant, the landlord took no steps to terminate the tenancy otherwise. Rather, he said he gutted the premises to make repairs. The repairs are not yet done, almost three years later, due to the nature of the damage to the building’s foundations and ongoing issues between Mr. Ieraci, the City, and insurer(s).

[6] The board did not accept the landlord’s evidence or submission that Ms. Parsons abandoned the tenancy. The board did not accept that the flood itself was an unforeseeable event that frustrated the lease. There was insurance in place for just such an eventuality. Repairs would normally be expected in short order.

[7] Rather, the board found that it was the gutting of the unit by the landlord and his failure to repair that led to the illegal exclusion of Ms. Parsons. Mr. Ieraci did not bring an application to terminate the tenancy for renovations using the board’s “N13” process that exists for landlords who wish to do so. Mr. Ieraci says he did not bring either an N13 application or an N4 for arrears of rent because, in his view, the tenant abandoned.

[8] The board made the following findings of fact about the landlord’s renovation of the premises:

12. The Tenant submits that she had agreed with the Landlord, that she would still live at the unit while these repairs were being performed. At no point did the Landlord object to this arrangement, prior to unilaterally emptying her unit, and gutting it, making it impossible for her to continue to stay there.

13. On cross-examination, the Tenant confirmed that she did not rent a hotel room for the period she was locked out, rather, she stayed at a friend’s place because she did not have the money to do so.

14. The Tenant clarified that on July 5, 2021, the rental unit still had its walls, kitchen, bathroom and the Landlord removed the door as well as these structures afterwards. Photographs were submitted into evidence showing the structures present on July 5, 2021 and the unit gutted three days later.

30 …in this case, as of the hearing date in February 2023, the Landlord’s evidence was, he was still under the process of renovating since July 2021, since it was financially difficult for him to do so, all at once. I find that the delay in the repair work has more to do with the Landlord’s choice of performing it himself, than the actual nature of the repair work that is required to be completed.

[9] The landlord’s evidence to the board, repeated to me in his submissions, is that after the flood Ms. Parsons said she could no longer live in the unit. It was just common sense that she was abandoning. But that is not abandonment. The unit was under two inches of water and needed repair. The landlord offered to put Ms. Parson’s goods in storage and he offered her other units while hers was under repair. It was only after she left that the landlord gutted the unit.

[10] The parties were not able to agree on terms for the alternative units offered by the landlord. The tenant kept a dog and two cats in her apartment apparently despite a “no pets” clause in her lease. She was not willing to accept an alternative unit with no pets allowed. Neither was she willing to share a unit with a male stranger as offered.

[11] Mr. Ieraci says that he also insisted that the tenant bring her arrears of rent up to date to take on a new unit as well.

[12] The board ultimately held:

33. In the absence of an order issued by the Board terminating the tenancy and evicting the Tenant or evidence that she either abandoned or vacated the rental unit, I find that the Landlord was in breach of section 24 of the Act on July 5, 2021 when they unlawfully evicted the Tenant…

[13] The landlord says that the tenant pretended to live in a hotel and asked him to pay for it when, in fact, she was living with a friend. The board recited this evidence. But, even if she was untruthful as to her expenses, the tenant’s ongoing request for the landlord to find her accommodation at his cost is inconsistent with the theory that she abandoned the lease. She continued to rely on the landlord having obligations to her.

[14] On finding that Mr. Ieraci had illegally evicted Ms. Parsons, the board held that it was only fair that he gives back what he took away. It ordered:

1. The Landlord shall forthwith complete the repairs to the rental unit.

2. The Landlord shall return vacant possession to the Tenant as soon as the unit is habitable and continue the tenancy at the same monthly rent charged had the tenancy not been interrupted.

3. On or before January 3, 2024, and until the repairs to the rental unit are completed, the Landlord shall ensure that the Tenant is provided with a hotel room or another rental unit that is pet-friendly at no expense to the Tenant.

4. If the Landlord fails to comply with paragraph 2 of this order, the Tenant may file this order with the Court Enforcement Office (Sheriff) so that the order directing the Landlord to return possession to the Tenant may be enforced. The Tenant is entitled to deduct from the rent any fee charged by the Court Enforcement Office (Sheriff) for this service.

5. Upon receipt of this order the Court Enforcement Office (Sheriff) is directed to give possession of the rental unit to the Tenant on an expedited basis.

6. If the Landlord fails to comply with paragraph 3 of this order, the Board may consider levying a $1,000.00 fine per day, up to $35,000.00 maximum (LTB jurisdiction), or until the Landlord complies.

7. The hearing of the balance of the Tenant’s T2 application is adjourned to a date to be scheduled by the LTB. This application shall be scheduled with the Tenant’s T6 application LTB-T-036939-22.

8. Should the Tenant wish to amend their applications, they must do so on or before January 31, 2024 and ensure a copy of the amended application is served to the Landlord and the Board in compliance with Rule 15 of the LTB’s Rules of Procedure.

9. As soon as possible and no later than TEN days prior to the hearing, the Tenant and the Landlord shall give to the other and file with the Board a copy of any undisclosed document, photograph, receipt, recording or like thing upon which they intend to rely at the hearing. Filing with the Board may be done by uploading onto the Board’s TOP portal or by e-mail to LTB.evidence@ontario.ca.

10. Pursuant to Rule 19.7 of the Board’s Rules, a party who does not comply with an order for disclosure may not be permitted to rely on any evidence not properly disclosed.

The Timing of Events

(a) The Next Hearing

[15] It is apparent that the application is not yet completed before the board. A further hearing is required to consider monetary compensation issues. The board determined that this hearing should be held with the tenant’s other applications seeking relief against the landlord.

[16] Counsel for the board advises that the hearing is now scheduled for April 30, 2024.

[17] Counsel for the Ms. Parsons and for the board accept that the order finding that the landlord had unlawfully evicted the tenant, based on a finding that the tenant had not abandoned the premises, was a final order that is appealable to this court despite the hearing before the board continuing on other issues.

(b) This Appeal

[18] The board released its decision on January 2, 2024. Mr. Ieraci says he received it on his return from vacation on January 17, 2024. He applied for reconsideration within the thirty-day time limit set out in the statute.

[19] On February 2, 2024, without holding a hearing, the board refused to reconsider the January 2, 2024 order. It held that the landlord was simply re-arguing his case and contesting facts found by the board. There was no error of law or other basis to call the decision into question.

[20] The landlord delivered a notice of motion in this court dated March 28, 2024 seeking both an extension of time to appeal and a stay of the January 2, 2024 decision.

[21] By triage directions made April 2, 2024, I convened an urgent case conference on April 4, 2024, The directions advised the parties:

There shall be an urgent case conference by videoconference on this application on THURSDAY APRIL 4, 2024 at 9:30 A.M. with Justice Myers. At that case conference, the following topics will be discussed:

• the requested extension of time and interim stay
• the schedule for this appeal if it proceeds.

The Landlord is to send to the tenant and to the court a copy of his Notice of Appeal and a statement summarizing the evidence that he intends to give if a hearing is held on his motions for an extension and a stay. The Notice of Motion that he has delivered is insufficient to tell a judge whether the time to appeal should be extended or a stay should be granted.

At the case conference, the judge will consider whether to schedule a hearing for an extension and a stay or any other scheduling issues as may arise.

The Landlord is reminded that the order of the Landlord and Tenant Board dated January 2, 2024 remains in effect and is enforceable unless or until the court stays (suspends) the operation of the order. The Landlord should be complying fully with the order while it remains in force.

In addition, to obtain an extension or a stay the Landlord will have to show that (a) he has good grounds of appeal available to him; and (b) the [sic] he is proceeding diligently to prepare for an appeal hearing. The Landlord should order the oral recordings and transcripts of the board hearings right away.

[22] On April 3, 2024, Mr. Ieraci delivered for the case conference a five-page outline of his factual and legal submissions in support of an extension of time, a stay, and the merits of the appeal itself.

[23] Mr. Ieraci delivered a notice of appeal before the case conference on April 4, 2024.

The Board’s Decision is Stayed on the Delivery of the Notice of Appeal

[24] An appeal from the board under s. 210 of the Residential Tenancies Act, 2006, SO 2006 c 17, attracts the application of the automatic stay of proceedings in s. 25 of the Statutory Powers Procedure Act, RSO 1980 c S.22. Now that he has delivered a notice of appeal, Mr. Ieraci does not need a motion to stay the board’s decision pending the appeal, therefore. It is stayed by the commencement of this appeal.

[25] But Mr. Ieraci does need an extension of the 30-day time to appeal.

The Request for an Extension of Time to Appeal

[26] At the case conference, oral submissions proceeded for an hour in total.

[27] This is a case in which it is fair and appropriate to exercise the court’s authority under Rule 50.13 (6)(d) of the Rules of Civil Procedure, RRO 1990, Reg 194, to decide the extension issue summarily without imposing on the parties the cost and delay of formal motion practice. The directions convening the case conference gave notice of the issues and topics to be covered. Changing the form of Mr. Ieraci’s written submissions to an affidavit and factum will not change the substance. I am prepared to treat the submissions as if they were sworn.

[28] Taking Mr. Ieraci’s submissions at their highest, and without cross-examination of Mr. Ieraci, he is unable to satisfy the requirements to obtain an extension of time to appeal the board’s decision.

(i) The Timing of Mr. Ieraci’s Intention to Appeal

[29] Mr. Ieraci offered no reason for taking two months to bring this appeal apart from relying on his self-represented status. He had legal representation before the board. Although his paralegal was apparently not willing to continue to act after the board’s January 2, 2024 decision, Mr. Ieraci quickly learned of his right to seek reconsideration of the board’s decision and he delivered his request in proper form well within time.

[30] Mr. Ieraci says that he did not know that he had a right to appeal to the court. He therefore cannot show that he formed an intention to appeal within the appeal period.

[31] Just as he did when he sought reconsideration, when I called for written submissions for this case conference, Mr. Ieraci prepared them quickly and thoroughly. It is difficult to accept that he would not have learned of his appeal right and filed his material on a timely basis had he intended to appeal and looked into how to do it.

[32] But I would not refuse an extension based on the time factor alone.

(ii) The Appeal does not raise a Question of Law

[33] As was the case with Mr. Ieraci’s request for reconsideration, his proposed appeal has no merit. Under s. 210 of the Residential Tenancies Act, 2006, this court has jurisdiction to hear only appeals on questions of law. While he has tried to pose his grounds of appeal in terms of legal issues, all his arguments contest the board’s finding of fact or mixed fact and law that Ms. Parsons did not abandon the tenancy and therefore her eviction was unlawful.

[34] The board heard Mr. Ieraci’s evidence and found that it was his renovation and not the flood that made the unit uninhabitable. He turned a repair into a three-year gutting and renovation.

[35] Even if the tenant was in arrears of rent at the time of the flood, the landlord did not act on it. Mr. Ieraci says he served a notice to terminate for non-payment of rent but he did not file it with the board to seek an order terminating the lease. Once again, he says that was due to the tenant’s abandonment. But the landlord was not free to decide that the tenant’s arrears allowed him to terminate the lease or refuse her alternative accommodation without an order of the board.

[36] Mr. Ieraci submits that Ms. Parsons abandoned the premises before he gutted them. He refers to text messages and her involvement of the police to help ensure that she had access to all of her goods to put into storage. This evidence was before the board.

[37] Mr. Ieraci submits that the scheduling of the hearing left him unable to call a witness – a Mr. Nunes.

[38] Mr. Nunes was the person hired by Mr. Ieraci to help Ms. Parsons move her goods into storage. Mr. Ieraci says that Mr. Nunes came to an earlier hearing but the hearing adjourned that day. Mr. Nunes then moved to Vancouver and Mr. Ieraci lost track of him. Mr. Ieraci has found him Mr. Nunes and proposes that Mr. Nunes give evidence to support his submission that Ms. Parsons abandoned the unit. For example, he says, Mr. Nunes helped Ms. Parsons move her bed into storage. She could not have intended to live in the unit while it was being repaired without a bed.

[39] The hearing adjourned twice at Mr. Ieraci’s request. Both adjournments were peremptory to him. There is no indication that his legal representative sought an adjournment of the second peremptory hearing to try to locate Mr. Nunes.

[40] All hearings of the board are held virtually by videoconference. The location of a witness does not affect his ability to testify as long as he has access to the internet.

[41] There is no realistic likelihood that Mr. Ieraci will obtain leave to deliver Mr. Nunes’ evidence as fresh evidence on the appeal. Fresh evidence cannot be submitted if it was available to a party at the time of the original hearing by the exercise of reasonable diligence. Neither leave to file fresh evidence nor a new hearing is available because Mr. Ieraci did not protect a witness’s evidence while facing a peremptory hearing date.

[42] In any event, the evidence proposed for Mr. Nunes is just confirmatory of Mr. Ieraci’s side of the story. The board understood Mr. Ieraci’s professed belief that Ms. Parsons abandoned the premises. It understood the timeline as the quoted paragraphs above demonstrate.

[43] Mr. Ieraci raises issues about the definition of “uninhabitable”; the fact that Ms. Parsons gained access to the premises after July 5, 2021 and therefore was not locked out; that Ms. Parsons brought the police to obtain access to her goods; and that he offered Ms. Parsons reasonable alternative accommodation.

[44] Mr. Ieraci believes that the board was wrong in finding that the unit became uninhabitable only after he gutted it and in failing to find that Ms. Parsons abandoned before that date.

[45] But there is no appeal available to this court on the issue of whether Ms. Parsons abandoned the premises. The Legislature of Ontario has told the court in s. 210 of the statute that the board has the last word on questions of fact and mixed fact and law.

(iii) Prejudice

[46] Mr. Ieraci is very concerned that he is at risk of significant monetary penalties in circumstance in which Ms. Parsons is not being truthful about her living arrangements. If she is being truthful, she is in extremis and has been for some time due to Ms. Ieraci’s unlawful eviction. But the time to determine the extent of loss suffered by Ms. Parsons, if any, and whether Mr. Ieraci ought to be held liable for the amounts she claims is at the renewed hearing on April 30, 2024.

[47] It follows that I am also concerned about the risk of prejudice to Ms. Parsons by the granting of an extension. Mr. Ieraci accepts that his unit is quite small and is therefore within a price range that makes it almost uniquely available to Ms. Parsons given her financial limitations. Her situation needs to be resolved. Mr. Ieraci will be entitled to submit his evidence that Ms. Parsons is trying to obtain money from him by misrepresenting her situation. She, similarly, should be heard on her living arrangements since July, 2021 to try to establish her entitlement to compensation, if any.

[48] This matter has gone on for far too long with Ms. Parsons saying her situation remains unresolved and tenuous. The hearing should continue unaffected by any stay of proceedings that would be imposed by this appeal.[^1]

Outcome

[49] With Mr. Ieraci unable to show that he made any real effort to appeal in a timely way, with the appeal lacking merit, and an extension of time risking prejudice to Ms. Parsons, the justice of the case leads me to deny the extension sought.

[50] As is usually the case, in my view, the most important factor is the assessment of the merits of the proposed appeal. It is perfectly clear from Mr. Ieraci’s notice of appeal, his written submissions, and his oral submissions that he is dissatisfied with the board’s findings of fact and he wants a chance to re-do the hearing on better evidence. An appeal restricted to issues of law is simply not available to do that.

[51] It follows that Mr. Ieraci’s request for an extension of time to bring this appeal must be dismissed. The appeal is therefore dismissed.

[52] If she seeks costs, Ms. Parsons may deliver up to two pages of submissions and a Costs Outline by April 12, 2024. Mr. Ieraci may deliver up to two pages of submission in response by April 19, 2024. Submissions are to be copied to my Judicial Assistant by email to therese.navrotski@ontairo.ca.

FL Myers J.

Date: April 5, 2024

[^1]: In light of the decision that I make, I do not need to consider whether this appeal ought to be stayed to await the outcome of the next hearing in any event. Although the board made a final decision on liability, multiple appeals on bifurcated issues are not to be encouraged.