Citation and Court Information
CITATION: Yusheng Cheng v. Toronto Community Housing Corporation, 2024 ONSC 2306
DIVISIONAL COURT FILE NO.: 183/24
DATE: 20240419
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Yusheng Cheng, Appellant
-and-
Toronto Community Housing Corporation, Respondent
BEFORE: FL Myers J
COUNSEL: Yusheng Cheng, self-represented appellant Spencer Toole, for the respondent Nicola Mulima, for the Landlord and Tenant Board
HEARD: April 18, 2024
AMENDED ENDORSEMENT[^1]
[1] Ms. Cheng has been evicted from her rental unit.
[2] She was ordered evicted last fall because she violated her agreement to maintain the cleanliness of her unit. On finding that she violated the terms of her prior agreement, the Landlord and Tenant Board made an order evicting Ms. Cheng without notice to her.
[3] Mr. Cheng moved to set aside that order but she was unsuccessful.
[4] Ms. Cheng waited over two months to apply for a reconsideration of the order dismissing her request to set aside the eviction order. Before she applied for the reconsideration, the sheriff evicted her. She may not have known because she has been living in a shelter for over a year due to the conditions in her unit.
[5] Ms. Cheng is many months late in her appeal of her eviction order. She filed her appeal on the 30^th^ day after she says she received the dismissal of her reconsideration request. I have not seen the proof of service of that order to see when it was sent to Ms. Cheng.
[6] The landlord understands that extensions of time are very often granted in appeals from eviction orders. But this case is different it submits. The unit has been re-let. It is no longer open to Ms. Cheng to live in the unit. As the eviction was not based on rent arrears, the board di not order Ms. Cheng to pay any money.
[7] The only basis for Ms. Cheng to proceed with her appeal is that she wants to be heard with her many years of complaints against the landlord regarding the lack of maintenance of the building and for singling her out. If Ms Cheng wants to seek compensation for alleged illegal treatment by the landlord, she likely must successfully set aside the eviction order. That order confirms the lawfulness of the eviction and stands in the way of Ms. Cheng claiming that she was unlawfully treated.
[8] But I must explain some procedural issues to Ms. Cheng so she understands how this proceeding will move forward.
[9] First, this appeal is not a new hearing before the Landlord and Tenant Board. I understand Ms. Cheng’s desire to get on a witness stand and to be heard. But the place for that is before the Landlord and Tenant Board.
[10] The board’s process is already finished. For Ms. Cheng to have another chance give her evidence, she needs to convince the court to set aside the decision that the board has already made.
[11] This court cannot hold a trial into Ms. Cheng’s complaints about her former landlord. This proceeding is an appeal. Under the law (section 210 of the Residential Tenancies Act, 2006, SO 2006, c 17) the court can only intervene if Ms. Cheng establishes that the board made an error of law in how it decided the eviction proceeding.
[12] An error of law involves the identification of the legal principles that applied to the board’s decision to evict Ms. Cheng. The court can only al set aside the board’s order if it applied the wrong legal principles to decide the case.
[13] Ms. Cheng may disagree with the board saying that she violated her agreement about keeping garbage in her unit. She may disagree with how the board decided that it was fair to evict her despite her evidence of the landlord’s failings. But as long as the board understood the correct legal principles, it is the law of the Province of Ontario that only the Landlord and Tenant Board hears and decides issues about the facts of the case and how the law applies to the facts.
[14] This means that Ms. Cheng has to identify errors of law that she says were made by the board if she hopes to have the court set aside the order of the board.
[15] Before doing that, Ms. Chang has to obtain an order to extend the time for her to appeal.
[16] I understand that Ms. Cheng has limited facility in English. She also has limits with use of technology. I will therefore give her generous time limits to allow her to get help with translating, typing, and scanning. I can see from material that she has already filed that she has been able to obtain some help with use of the court’s forms.
[17] To obtain an extension of time to appeal, Ms. Cheng needs to bring a motion. That means she needs to serve on the lawyers for the landlord and the LTB a Notice of Motion and an Affidavit. The Notice of Motion will explain why Ms. Cheng says she is entitled to an extension of time to appeal. But the reasons in the Notice of Motion must be proven by sworn evidence. That is what the Affidavit does. In the Affidavit, Ms. Cheng gives the court her evidence under oath about all the facts on which she relies to justify the extension of time.
[18] To obtain an extension of time, Ms. Cheng needs to explain in her Affidavit:
a. that she decided to appeal the board’s decision within the 30-day period available to her or, if not, why not;
b. that she acted quickly once she decided to appeal;
c. that no one was hurt by her delay; and
d. that she has a good basis for appeal – that the board made one or more errors of law.
[19] Ms. Cheng says that she has already written down most of her evidence including back-up proof. Any documents, pictures, emails, or other evidence that she wants to use can be attached as “exhibits” to her Affidavit.
[20] The motion for an extension of time will be heard by me in writing. Ms. Cheng is to serve on Mr. Toole and Ms. Mulima and file with the court her Notice of Motion and supporting Affidavit (with all documents attached) by June 30, 2024. If the landlord wishes to respond, it may do so by July 22, 2024. I will read the motion during the week of July 29, 2024.
[21] If an extension of time is granted, then Ms. Cheng must perfect the appeal by October 1, 2024. To perfect the appeal, she must obtain, serve, and file with the court the typed transcript of the recording from the board’s hearings. She must also prepare, serve and file an appeal book, and a factum.
[22] The landlord will be entitled to respond by October 30, 2024. The board may deliver a factum if so advised by November 15, 2024.
[23] The Registrar is directed to schedule a one-hour hearing of the appeal on any day in December 2024.
[24] I attach as Appendix “A:” additional directions that apply to the hearing of the appeal if the time is extended.
Date: April 19, 2024
Appendix “A”
The parties will receive an invitation to upload their materials to CaseLines.
The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
The parties are reminded of the following:
• To hyperlink the indexes to all documents uploaded to CaseLines;
• To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
• During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf
[^1]: On July 18, 2024, in preparing for the motion to be read during the week of July 29, 2024, I discovered two typographical errors in this endorsement – the first in the Citation above and the second in para. 20 below. I have underlined the corrected language.