CITATION: Gonyea v. Whing, 2024 ONSC 450

DIVISIONAL COURT FILE NO.: 597/23

DATE: 20240122

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CRAIG GONYEA, Moving Party/Tenant AND: LLOYD WHING, Respondent/Landlord

BEFORE: Matheson J.

COUNSEL: Self-Represented Moving Party Timothy M. Duggan, for the Respondent

HEARD in Toronto: In-Writing.

ENDORSEMENT

[1] The moving party/tenant seeks an extension of time to appeal the decision of the Landlord and Tenant Board (“LTB”) dated Sept. 5, 2023, terminating the tenancy on the basis that the landlord in good faith requires the premises for his son. The moving party’s notice of appeal was about three weeks late.

[2] At a case conference on December 13, 2023, Justice Schabas directed that there be an in-writing motion for an extension of time, he set a schedule for the motion, and he directed that a stay of the eviction remain in effect pending the motion. This is that motion.

[3] There is another LTB matter involving the same tenancy that is now the subject of proceedings in this Court, File No. 051/24, regarding another LTB eviction order based upon non-payment of rent. The landlord’s evidence on this motion refers to a substantial arrears of rent.

[4] The test for an extension of time is well-settled. On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. The court should take into account all relevant considerations, which include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[5] The tenant’s unsworn affidavit includes an account of his issues with the landlord, indicates that he is a person with disabilities, and disputes receiving copies of some documents in the LTB proceedings. He also appears to challenge LTB orders that are not under appeal. The moving party’s assertion that he has always paid his rent on time is disputed. A second affidavit has been put forward, which is also unsworn. I agree with the respondent that much of the second affidavit is inadmissible, even if sworn.

[6] Although the moving party does not specifically recount an intention to appeal within the time period, he does give some surrounding circumstances, and the delay is short. I am not persuaded that this particular delay gives rise to actual prejudice to the landlord. Further, the issue of arrears of rent can be addressed in interim terms.

[7] The landlord also submits that the appeal has no merit. Leave may be denied where the lack of merit of an appeal is so clear-cut that on its own, or in combination with other factors, the motion judge determines that leave should not be granted: Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21. However, “[e]ven where it is difficult to see the merits of a proposed appeal, a party should not be deprived of the right to appeal where there is no real prejudice to the other side”: Sabatino, at para. 20.

[8] Moving to the overall justice of this case, I have considered all the materials and exercise my discretion to grant an extension of time in the particular circumstances of this case, on the following terms:

(i) the appeal shall be expedited;

(ii) there shall be a case conference at which the court may impose terms regarding the schedule, payment of rent, payment of arrears while the appeal is ongoing and the consequences of any failure to comply with this Court’s directions; and,

(iii) at least a week in advance of that case conference, the parties shall email the court with their position on (1) the amount of the monthly rent; (2) the amount of the arrears; and (3) their proposed schedule for the exchange of court documents for the appeal.

[9] Because the extension of time has been granted, there is an automatic stay of the eviction order. However, a judge may impose terms permitting the lifting of that stay including at the above case conference.

Matheson J.

Date: January 22, 2024