CITATION: Bananga v. RPMS Property Management Services Inc. 2024 ONSC 3591

DIVISIONAL COURT FILE NOS.: 219/24

DATE: 20240624

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN:

BIENVENU BANANGA (Tenant, Moving Party)

AND:

RPMS PROPERTY MANAGEMENT SERVICES INC. (Landlord/Responding Party on the motion)

BEFORE: Leiper J.

COUNSEL: Tenant – self-represented

RPMS Property Management Services Inc., Kristin Ley

Landlord and Tenant Board, Nicola Mulima

HEARD: Heard in writing, June 24, 2024

ENDORSEMENT (Motion by the Tenant for an extension of time)

Introduction

[1] The Moving Party and Tenant, Bienvenu Bananga, is the residential tenant of a rental unit located at PH07, 111 Davisville Avenue, Toronto, Ontario M4S IG5. On April 26, 2024, the Tenant moved for an extension of time to file an appeal from a decision of the Landlord and Tenant Board dated March 1, 2024. His Notice of Appeal had not been filed within thirty days of the date of that decision.

[2] The background to the Board’s order follows. The Tenant received notice for non-payment of rent on August 12, 2022. By order dated June 16, 2023, he agreed to terms that included making regular payments towards the arrears of rent owing.

[3] The Tenant failed to comply with the terms of the consent order. The Board terminated his tenancy. The Tenant filed a motion to set aside the termination order, which was heard on December 5, 2023. On December 15, 2023 the Board denied the Tenant’s set aside motion.

[4] The Tenant then moved for a review of the set aside order. On February 15, 2024, the Tenant’s request to review was granted and the set aside order was cancelled, based on Mr. Bananga’s inability to participate in the set aside motion.

[5] On October 18, 2023, the Board heard the Tenant’s motion to set aside the order. The Tenant was able and did participate in the motion. The Board denied the motion to set aside the order on March 1, 2024.

[6] The Tenant began proceedings before this court, seeking to appeal. Because he was out of time to deliver his notice of appeal, he served a notice of motion for an extension of time in which to appeal the decision of the Board. At a case conference of this court held on April 9, 2024, O’Brien J. granted an interim stay of the eviction order pending the consideration of the Tenant’s motion for an extension of time to appeal.

[7] O’Brien J. imposed the following terms:

1. Mr. Bananga shall pay the monthly rent on time;

2. If Mr. Bananga does not pay the rent, the landlord may email an affidavit to the court to advise of this. Mr. Bananga will be given an opportunity to respond to the affidavit. If the court concludes the rent was not paid, it may consider lifting the stay.

3. If the landlord seeks additional terms of the stay, it may write to the court with a specific proposal. Mr. Bananga will then be given an opportunity to respond to the proposal in writing.

4. Mr. Bananga shall serve and file his additional material supporting his motion for an extension of time by April 26, 2024. This should include at minimum an affidavit and a draft notice of appeal. I can advise Mr. Bananga that the court will often consider the following factors in determining whether to grant an extension of time:

a. Whether the moving party formed a bona fide intention to appeal within the appeal period;

b. The length of, and explanation for the delay in filing;

c. Any prejudice to the responding party caused, perpetuated or exacerbated

by the delay; and

d. The merits of the proposed appeal.

e. The overarching principle is whether the interests of justice require that an

extension be given.

See: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15.

The Material Filed on the Motion

[8] The Tenant has filed a Notice of Appeal which sets out the following grounds for appeal:

1. Issues on Appeal: The Review Order failed to address key issues raised by the Tenant, including the fairness of the hearing process, the interpretation of the repayment plan order, and the Tenant's mitigating circumstances regarding employment status and financial hardship.

2. Failure to Reasonably Participate: The Review Request asserts that the Tenant was not reasonably able to participate in the December 5, 2023 hearing due to technical issues with internet connectivity, which prevented participation via videoconference and telephone. The Board granted the request for review and directed the matter to be heard de novo (anew). However, the decision failed to adequately address the Tenant's right to a fair hearing.

3. Unfairness in Decision: Despite acknowledging the Tenant's reasonable explanation for the initial breach of the repayment order, the Board denied the motion to set aside the prior order and lift the stay. The decision overlooks the Tenant's return to full-time employment and prioritization of other debts over rent payments, which are legitimate mitigating circumstances. The Board's decision does not align with principles of fairness and natural justice.

The decision of the Board has substantial implications for the rights and interests of the Tenant, and I believe that errors in law and procedure have affected the outcome. Therefore, we respectfully request a review of the Review Order LTB-L-076510-23-SA-RV.

4. Question of Law: The decision raises questions of law regarding the interpretation and application of the Residential Tenancies Act, particularly concerning the rights of tenants in arrears repayment plans and the principles of fairness and natural justice.

5. Ignoring or Excluding Evidence: The Board failed to fully consider the evidence presented by the Tenant regarding technical issues with internet connectivity, which prevented participation in the December 5, 2023 hearing. This failure to consider relevant evidence undermined the fairness of the proceedings.

6. Probing Examination: The Board did not conduct a probing examination into the circumstances surrounding the Tenant's inability to comply with the repayment plan order, including the loss of employment and prioritization of other debts and expenses.

7. Procedural Requirement and Fairness: The Board's decision did not comply with procedural requirements for a fair hearing, including the Tenant's right to participate fully and effectively in the proceedings. The denial of the motion to set aside the ex-parte order without adequate consideration of the Tenant's circumstances was procedurally unfair.

8. Bad Faith: There is no evidence to suggest that the Tenant acted in bad faith or intentionally disregarded the repayment plan order. The decision to deny the motion based on the Tenant's alleged lack of good-faith payments is unfounded and unjust.

[9] The Tenant filed an affidavit which describes two significant personal losses in 2021 that he states led to his difficulties in paying his rent. His Notice of Appeal summarizes the his argument as to his intention to appeal within the prescribed time and the reasons for the delay as follows:

Extension of Time:

9. Bona Fide Intention: I confirm my bona fide intention to appeal within the appeal period. Unfortunately, due to unforeseen circumstances, including difficulty obtaining legal counsel and guidance and personal health issues, I was unable to file within the appeal period.

10. Length and Explanation for Delay: The delay in filing was primarily due to the complexity of the case, difficulty in obtaining legal representation, difficulty obtaining legal counsel and guidance, and personal health issues, which rendered me incapable of attending to legal matters promptly.

11. Prejudice to Responding Party: The delay has not perpetuated or exacerbated prejudice to the Landlord, as the stay of the order remains in effect pending the outcome of the appeal. Additionally, the extension of time does not unduly prejudice the Landlord.

12. Merits of Proposed Appeal: The proposed appeal raises substantial legal and factual issues deserving review by the Divisional Court.

The Landlord’s Position on the Motion

[10] The Landlord opposes an order granting the requested extension. In the affidavit filed in response to the Tenant’s motion to extend time, the Landlord attaches a ledger which shows that as of May 31, 2024, the Tenant owed rent arrears of $17,090.78. His last payment towards those arrears was made on May 6, 2024, in the amount of $1,905.00. The ledger shows that he did not pay rent for three months prior to the order staying the eviction order, and only after O’Brien J. imposed the requirement that he pay his monthly rent as a term of maintaining the stay.

[11] The Landlord submits that the Tenant has not met the test to receive an extension of time to appeal the order of the Board. Those submissions can be summarized as follows:

a. Intention to appeal: The Landlord submits that although the Tenant asserts in his material that he intended to appeal within the allotted time, he took no steps until the moment that eviction was to happen.

b. Length and Explanation for the delay: The Landlord acknowledges that the delay is not significant, however the explanation is not compelling. The reasons for delay in the Notice of Appeal are generally assertions of complexity, difficulty in finding legal representation and “personal health issues” unsupported by any sworn evidence or detail.

c. Prejudice to the Respondent: The Landlord points out that the Tenant has failed to abide by prior orders of the Board to keep his rent in good standing, and after a hearing found that this was because the Tenant chose to prioritize other debts over rent payments. The Landlord submits that there will be ongoing financial prejudice if the extension of time is granted. The current arrears are $17,090.78.

d. Merits of the Appeal: The Landlord submits that the grounds of appeal are devoid of merit. There is no issue of law, although the grounds are framed that way. The facts of non payment were unchallenged. The Tenant has not been able or willing to meet the terms of the consent order.

e. Justice of the Case: The Landlord submits that the justice of the case is wholly in favour of refusing the motion to extend time. This is not a bona fide appeal, but an attempt to continue to delay eviction to the prejudice of the Landlord, and to use the court’s processes to delay eviction.

Analysis

[12] I accept that the Tenant may have formed the intention to appeal within the 30-day period given the short period of delay, the fact that he is self-represented and his advocacy on his own behalf before the Board with respect to the eviction proceedings. The Landlord is right to concede that this is not a lengthy period of delay. These two factors weigh in favour of granting the extension of time.

[13] However, moving to the merits, prejudice and justice of the case factors, I find that these factors weigh in favour of the Landlord. The underlying order that the Board enforced was a consent order to pay rent and arrears in the amount of $700, over and above the monthly base rent of $1753.03 and the cost of the Tenant’s parking space of $150. In that affidavit filed on this appeal, the Tenant refers to financial challenges, yet his affidavit provides sparse information about his finances other than two events in 2021 (a theft of a significant amount of cash and valuables, and the violent death of a family member requiring his contribution to funeral expenses). The Tenant asserts he has proposed other payment arrangements, to the Landlord but supplies no detail. Notably, the Tenant did not pay his base rent for the months of January-April 2024, according to the Landlord’s ledger. The Tenant could have demonstrated his ability and willingness to pay his rent and any amount of arrears by making those payments as well as some part payment toward arrears but he did not.

[14] The affidavit and Notice of Appeal do not disclose any question of law relative to the denial of the motion to set aside. As reproduced above, the grounds either refer to the hearing of December 5, 2023, which were corrected by providing the Tenant with a second hearing of his motion or contain generalized assertions of questions of law without any foundation in the record or specifics of how the Board erred in law as connected to his case. Requiring the Landlord to respond to unmeritorious grounds of appeal adds to the Landlord’s costs.

[15] I find that the grounds of appeal do not raise questions of law, and that the appeal is unlikely to succeed. This factor favours refusing the motion for an extension of time.

[16] While the Tenant alleges that these proceedings are being brought so that Landlord can raise the rent and earn more income from the unit, I do not draw that inference. I say that because the Landlord agreed to terms before the Board which would have allowed this tenant to remain so long as he kept his rent current and made what the parties agreed at the time would be a reasonable amount toward payment of the arrears. Instead, the Tenant has not paid his rent consistently nor taken steps to address the arrears.

[17] I find that the history of non-payment, size of the arrears, related prejudice to the Landlord, the record of proceedings below and the lack of apparent merit in the grounds of appeal, all weigh in favour of refusing an extension of time, despite the relatively short period of delay and my finding that the Tenant likely formed the intention to appeal within the 30-day period. I decline to grant the extension of time sought.

Conclusion

[18] The motion for an extension of time in which to bring this appeal is dismissed. The parties may deliver costs submissions in writing, maximum 3 pages in length by July 4, 2024.

Leiper, J.

Date: June 24, 2024