CITATION: Sniderman v. Nickoloff 2024 ONSC 3331
DIVISIONAL COURT FILE NOS.: 701/23 & 738/23
DATE: 20240426
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
BETWEEN:
ADAM SNIDERMAN AND HAVA FRIEDMAN, Landlords (Respondents in appeal/Moving Party)
AND:
STEVEN NICKOLOFF, Tenant (Appellant/Responding party on the motion)
BEFORE: Leiper J
COUNSEL: Landlords – Adam Sniderman and Hava Friedman, Self-represented Tenant – Steven Nickoloff – Self-represented Lawyer for the Landlord and Tenant Board: E. Fellman
HEARD: In writing on April 26, 2024
ENDORSEMENT
(Tenant’s motion for a further extension of time and Landlords’ motion to dismiss)
Introduction
[1] On April 14, 2024, the tenant in these appeals, Steven Nickoloff, wrote to the court seeking an extension for perfecting his appeals in two landlord and tenant appeals. This is the fourth request for an extension by the tenant. I ordered that the last extension be peremptory to the tenant and that if he failed to abide by the time limit this would mean the court would permit the landlords to move in writing for an order dismissing his appeals for delay.
[2] The landlords, Adam Sniderman and Hava Friedman, have moved in writing for an order refusing another extension of time, dismissing these appeals for delay and lifting the stay of the eviction orders. They provided a copy of their material to the tenant by email dated April 16, 2024.
[3] The landlords submit that the tenant has no intention of perfecting his appeals within the prescribed time, the length of delay is inordinate, and his ongoing explanations for the delay have become unreasonable. They submit that the appeals are meritless and they are suffering ongoing prejudice due to their exposure to the odour of cat feces from the tenant’s multiple cats which is prejudice that cannot be otherwise remedied.
[4] For the following reasons, I find that the tenant is not entitled to a further extension and the landlords should have an order dismissing the appeals for delay. The stay of eviction ordered by this court is ordered to be lifted.
The Tenant’s intention to perfect his appeals
[5] On December 6, 2023, the tenant filed a Notice of Appeal of Landlord and Tenant Board Orders LTB-L-022047-22-HR (the “L1 Order”) and LTB-L-022047-22-RV (the “L1 Review Order”), based on the Landlords’ application that was heard by the Board on July 18, 2023 (the “L1 Hearing”). On December 17, 2023, the tenant filed his Notice of Appeal of Landlord and Tenant Board Order LTB-L-041622-23-SA-AM (the “L4 Motion Order”), based on the Tenant’s Motion to Set Aside an Order heard at the Board on August 9, 2023 (the “L4 Motion Hearing”).
[6] The Tenant has stated that he intends to perfect his appeals as expeditiously as possible however his serial delays demonstrate a pattern of expressing his willingness to comply with a schedule but then failing to abide by the schedule. As each deadline has approached, he has requested extensions of time.
[7] A brief chronology follows:
- On December 12, 2023, the court scheduled a case management conference for December 22, to set a timeline for the exchange of materials for the appeal. The tenant confirmed his attendance by email to the court on December 14, 2023, and then did not attend the case management conference.
- Following the December 22 case conference, Justice Leiper directed that the Tenant file his appeal materials by January 22, 2024.
- On January 5, 2024 the recording for the hearing held on August 9, 2023 regarding LTB file LTB-L-041622-23 was sent by email to the tenant
- On January 10, 2024, the tenant requested a first extension because he had not yet received the L1 Hearing recording from the Board. The tenant requested 60 days after receiving the recordings to file his materials.
- On January 11, 2024, the tenant received the L1 Hearing recording from the Board. This information was provided by Mr. Fellman, counsel to the Board.
- On January 18, 2024, I directed the tenant to file his appeal materials within 60 days of receiving both hearing recordings.
- On January 18, 2024, I directed that the tenant order transcripts within seven days of receiving the Board hearing recordings.
- On January 24 – one day the deadline – the tenant asked the Court for a second extension and have until February 12, 2024 to order transcripts.
- The tenant failed to order his transcripts until late March of 2024.
- On January 29, 2024, I directed the tenant to file his appeal materials by March 11, 2024. This date was 60 days following the tenant’s receipt of both recordings and this was a date that the tenant had said he could meet.
- On March 8 – the business day before the deadline –the tenant made a third request for an extension of the time to perfect his appeal. He sought an eight-week extension based on mental health issues, recovery from surgery and grieving over the death of one of his cats.
- On March 26, 2024, I granted the tenant a peremptory five-week extension to April 15. The tenant explicitly agreed to the new deadline on March 27, saying, “All materials will be filed and perfected by the date set by Justice Leiper on April 15, 2024.” I cautioned the tenant that the landlords could bring a motion to dismiss the appeals for delay if he failed to meet the April 15 deadline.
- Following his email on March 27, 2024, the tenant did not communicate with the Court or the Respondents regarding his progress in preparing his appeal materials until late in the evening on April 14 –the eve of his deadline – when, he asked for fourth extension of 60 days to perfect his appeal.
- In this request, the tenant states that he has found “someone” to help him prepare his case, but that she needs 60 days to draft his factum and his material. He cites the fact that the shelter system is overwhelmed and he had nowhere to go with his cats. The tenant also states that he has addressed the smell of his cats by blocking the vents to their unit, he cleans the cat litter daily, and no longer uses the common laundry.
- The tenant states that he has paid his monthly rent and has payment plan for his arrears.
- The tenant describes his cats as his support animals for his mental health reasons.
[8] The tenant has had the benefit of multiple extensions and has not filed his material for the appeal. He has mentioned attempts to obtain legal assistance in the past from legal aid clinics, but none of these attempts have led to representation. On this fourth request for an extension, he has asserted he has found someone to help him but has not identified the person or explained why he has apparently in the intervening months done nothing on his own to prepare any appeal material.
[9] Given the prior extensions and the pattern of vague, undocumented reasons for needing multiple extensions, I find that it has become obvious that the tenant has no intention of meeting deadlines or in perfecting his appeals. He prefers to pay rent, maintain occupancy and unfortunately, inflict the smell associated with his cats on the landlords and the basement tenant, although he denies this problem because of various measures he describes taking, including blocking the ducts and no longer using the shared laundry facilities.
The delay is unreasonable
[10] The standard timeline for an appellant to perfect an appeal is 60 days after the evidence has been transcribed: Rule 61.09(1)(b) of the Rules of Civil Procedure.
[11] The Consolidated Practice Direction for Divisional Court Proceedings requires the timely pursuit of appeals from the Landlord and Tenant Board, noting that “any party with a stay pending appeal is responsible to move forward with their appeal even more promptly” (CPD: s. II.F.14). This tenant has been granted significant indulgences and leeway in abiding by these expectations. However given the length of the three extensions, the request for a further 60 days and the dates of filing these appeals, I find that the delay is unreasonable.
The Tenant has not provided reasonable explanations for the delays
[12] The tenant has requested delays in perfecting his appeals based on a combination of medical issues, financial issues, and lack of legal aid. These circumstances have been considered during the earlier phases of the proceedings, but after three extensions, the tenant was required to move on his own to perfect his appeals. The case management directions confirm this. His repeated rationales for more time have become less compelling and can only be seen now as excuses for failing to meet deadlines.
[13] The landlords point out that the most recent request for an extension does not add any new reason in support of the tenant’s request for an extension on March 8. In their submissions, the tenants write:
a. The Tenant fails to explain how his anxiety changed in the four months since issuing his Notices of Appeal, and has never produced documentation supporting his claim of having an anxiety disorder or suggesting that he suffered an acute anxiety incident that prevented him from perfecting his appeals immediately before each deadline.
b. The Tenant fails to explain how the recovery from his surgery changed his ability to perfect his appeal, and has never rationalized why a surgery that was already planned when he agreed to the initial court-ordered timelines had such an unexpected impact as to require upwards of three extra months to perfect his appeals.
c. The Tenant fails to explain how his legal aid situation changed in the months between his initial extension request and now, and has never justified his decision to wait until late March to seek other counsel after the first lawyer turned him down on January 26.
[14] I agree. I do not accept that these remain ongoing and valid reasons to grant a fourth extension that will delay the argument of these appeals once again.
The Tenant’s appeals have little merit
[15] The tenant’s grounds of appeal are weak, given that appeals from the Board are limited to questions of law. The tenant claims that the Board erred in not joining the Landlords’ L1 application with the tenant’s T2 applications. The Members gave reasons for their decisions declining to join the L1 and T2 applications. Having had full hearings on both sets of issues, it is unclear how this raises a question of law.
[16] The tenant alleges that the Board erred in evicting him for rent arrears while he had a rent abatement application pending. The Residential Tenancies Act includes no provision allowing for arrears to be offset against potential future abatements, as Member Kovats found in the L1 Review Order.
[17] The tenant’s notice of appeal alleges that the Board erred in ignoring his personal circumstances when determining whether to grant relief from eviction in the L1 Order. However, Member Brar listed the circumstances raised by the tenant and cited those circumstances in her reasoning considering whether to postpone the eviction.
[18] The tenant alleges several errors of fact in the L4 Motion Order. However, alleged errors of fact cannot be appealed.
[19] The tenant claims that the Board ought to have found that the Landlords brought the application preceding the L4 Motion Order in reprisal against him. This is a question of fact and not of law.
[20] The tenant claims that the Board ignored his “continuous video” showing the state of his unit. Yet Member Delorenzi watched the video submitted by the tenant discussed the videos in his reasons. It is unclear how this ground of appeal raises a question of law.
[21] The tenant claims that the Board ought to have given his testimony greater weight and ought not to have accepted the evidence given by the other tenant in the house at the L4 Motion Hearing. Credibility assessments are accorded deference and are questions of fact, not law.
The prejudice to the landlords
[22] The landlords state that they continue to be bothered by the tenant’s cats, and that both they and the other tenant in the house complain of the smell. They participated in full hearings before the Board and received orders. They have been placed in a holding pattern for an appeal that I have found the tenant is not truly interested in pursuing and which has attracted multiple delays to date with no reasonable end in sight.
[23] The tenant’s notice of appeal describes the personal prejudice he will suffer if the stay is lifted. He is a longstanding tenant and inherited the cats from his father on the father’s death. When the landlords purchased the house, they were aware of the lease that permitted the tenant to reside there with his six cats. He also has disabilities that will make his search for replacement housing challenging. I accept all of this as evidence of prejudice to the tenant.
[24] The personal circumstances of the tenant have been respected and addressed by three prior extensions of time for him to perfect these appeals. I am not satisfied that the ongoing prejudice to the landlords can be justified given all the circumstances. I will however consider these factors in the timing of the order.
Conclusion
[25] I find that a further extension would be highly unfair to the respondent landlords. I have described the tenant’s pattern of seeking last-minute extensions, citing similar reasons each time and based on that pattern, I have no confidence that the tenant will perfect these appeals. The grounds of appeal do not suggest that these appeals have significant merit.
[26] I dismiss the tenant’s request for a fourth extension. I grant the relief sought by the landlords.
[27] Given the evidence from the tenant about his connection to the apartment and the needs of his cats, I will make the order lifting the stay effective 45 business days from today, that is effective June 28, 2024. I further order that the tenant’s appeals be dismissed for delay as of June 28, 2024 and I dispense with the tenant’s consent to the form of the order.
Leiper, J.
Date: April 26, 2024