CITATION: Rosen v. Reed, 2024 ONSC 4337
DIVISIONAL COURT FILE NO.: 254/24
DATE: 20240802
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
BETWEEN:
David Rosen
Tenant/Appellant
– and –
Wendy Reed
Landlord/Respondent
David Rosen, for himself
Douglas H. Levitt and Timothy M. Duggan, for the Landlord/Respondent
HEARD at Toronto: In Writing
SHORE J.
REASONS FOR DECISION
[1] The Landlord has brought a motion dismissing the Tenant’s appeal due to delay in perfecting the appeal and for costs of the appeal.
[2] The Landlord owns the residential property municipally known as Suite 1206, 29 Queens Quay East, Toronto, Ontario M5E 0A4 (the “Rental Unit”).
[3] The Tenant (Appellant), David Rosen (the “Tenant”), is the tenant of the Rental Unit.
[4] On or about March 9, 2023, the Landlord and Tenant Board (the “Board” or “LTB”) issued an order terminating the Tenant’s tenancy for non-payment of rent (the “Eviction Order”). What has ensued is the Tenant’s attempt to delay enforcement of the Eviction Order.
[5] The Tenant appealed the Eviction Order to this court. On November 17, 2023, the Tenant’s appeal was dismissed, with costs of $10,000.00 awarded to the Landlord. The cost award remains unpaid.
[6] The Tenant received notice that the Sheriff’s Office would be enforcing the Eviction Order on January 29, 2024.
[7] On January 19, 2024, the Tenant brought a motion pursuant to subsection 74(11) of the Residential Tenancies Act, 2006 (the “RTA”) to void the Eviction Order on the basis that he had paid a sufficient amount to void the Eviction Order prior to same being enforced by the Sheriff. His motion was dismissed on March 28, 2024 (the “Voiding Order”).
[8] On April 1, 2024, the Tenant requested a review of the Voiding Order. On April 3, 2024, the Board rendered an order denying the Tenant’s request to review (the “Review Order”).
[9] On April 25, 2024, the Tenant commenced the within appeal in respect of the Voiding Order and the Review Order (collectively the “Appealed Orders”). As a result, the Appealed Orders were automatically stayed.
[10] On May 30, 2024, the parties attended a case management conference. Counsel for the Tenant requested additional time to perfect the appeal because counsel was away for part of June. A direction was issued providing, among other things, that the Tenant was required to perfect his appeal by no later than July 15, 2024, and directed the Court Registrar to set the matter down for a half day hearing before a single judge no earlier than the week of August 26, 2024.
[11] On June 28, 2024, the court advised the parties that the appeal had been scheduled to be heard on September 4, 2024.
[12] In response, the Tenant wrote to the court to request that the appeal be heard by a panel of the court instead of a single judge. The request was opposed by the Landlord, expressing concern that this was a further attempt by the Tenant to delay the appeal. After receiving and considering the parties’ submissions, I issued an endorsement on July 10, 2024, confirming that the appeal would proceed as scheduled before a single judge on September 4, 2024.
[13] Further, on July 9, 2024, just days before the Tenant’s material was due, the Tenant wrote to the Court, requesting an extension of time to perfect his appeal. The request was opposed by the Landlord, again concerned that the Tenant was trying to delay hearing of the appeal. On July 17, 2024, I denied the request for an extension of time, reconfirming the deadlines set out in the May 30th direction. Extending the deadline for the Tenant to file his materials would have meant that there would be no time for the Landlord and the LTB to file their materials on a timely basis and would necessitate an adjournment of the appeal. The Appellant had ample notice of the deadline to serve his materials, which deadline had already been extended at the request of his counsel.
[14] Although the appeal is of an order made on March 28, 2024, it really relates to the Eviction Order made on March 9, 2023. It has been almost a year and half since that order was made. The Landlord’s concern about delay is justified.
[15] The Tenant has not offered any plausible reasons to justify his failure to perfect his appeal on time. In considering the history of this file, I find this is a further attempt to delay the appeal.
[16] The Tenant failed to perfect his appeal on time and as such, in the circumstances of this case, it is just and reasonable that the appeal is dismissed.
[17] The appeal date of September 4, 2024, is vacated.
[18] Although the Respondent asked for an order for costs, they failed to request an amount for costs and did not file a bill of costs, as required by the Court. I am therefore not making an order for costs.
Shore J. Released: August 2, 2024
CITATION: Rosen v. Reed, 2024 ONSC 4337
DIVISIONAL COURT FILE NO.: 254/24
DATE: 20240802
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
David Rosen
Tenant /Appellant
AND:
Wendy Reed
Landlord/Respondent
REASONS FOR decision
Shore J.
Date: 20240802