CITATION: Rosen v. Reed, 2024 ONSC 5224
DIVISIONAL COURT FILE NO.: 254/24
DATE: 20241007
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
DAVID ROSEN
David Rosen, self-represented Moving Party
Moving Party / Appellant
– and –
WENDY REED
Timothy M. Duggan, for the Responding Party
Responding Party / Respondent
HEARD in writing: October 2, 2024
ENDORSEMENT
D.L. Corbett J.
[1] These are my reasons for dismissing an urgent motion for a stay and for granting an extension to bring a motion to review a judge’s order.
[2] Mr Rosen seeks a stay of an eviction order of the Landlord and Tenant Board (“LTB”) pending proceedings seeking to review the order of Shore J., dismissing Mr Rosen’s appeal for delay, and lifting the stay of the underlying LTB eviction order.
[3] The test for a stay is as follows (RJR MacDonald v. Canada (AG), 1994 117 (SCC), [1994] 1 SCR 311:
Is there a serious issue to be tried (in this context, is there an arguable ground for the intended review motion)?
Will Mr Rosen suffer irreparable harm if the stay is not granted?
Does the balance of convenience favour granting the stay?
[4] I conclude that Mr Rosen has not satisfied the first and third branches of the test for a stay. I agree, to a point, with the respondent that the “irreparable harm” is a consequence of Mr Rosen’s own conduct, but it has been exacerbated by an error made by court staff: if Mr Rosen had satisfied the first and third branches of the test, I would have been inclined to grant a stay pending review proceedings.
No Serious Issue to be Tried
[5] Shore J. dismissed Mr Rosen’s appeal for delay in the context that he was in breach of case management scheduling orders to perfect his appeal by July 15, 2024. Shore J. found that Mr Rosen had “no plausible explanation” for his failure to meet the court-directed deadline, and that this failure was part of a pattern of trying to delay the appeal.
[6] On a review motion pursuant to s. 21(5) of the Courts of Justice Act, the panel will not intervene to vary or set aside the order of a single judge absent an error of law or a palpable and overriding error of fact (Marsden v. Ontario (Chief Coroner), 2012 ONSC 6118; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518 (Div. Ct.), para. 7). Where the motion judge exercises discretion, a review panel will not interfere unless the moving party demonstrates that the decision is so clearly wrong that it amounts to an injustice or the motion judge gave no or insufficient weight to relevant considerations (Franchetti v. Huggins, 2022 ONCA 111, para. 5).
[7] For the purposes of this stay motion, the inquiry is focused. Shore J. dismissed the appeal and lifted the stay of the LTB eviction order. I conclude that there is no reviewable basis to interfere with the motion judge’s conclusion that Mr Rosen breached a court-ordered schedule, that the purpose and effect of this breach was to delay the appeal, and that one consequence of this conduct should be an order lifting the stay of the LTB’s eviction order. That is a sufficient basis to conclude that there is no serious issue to be tried that would entitle Mr Rosen to a stay pending further proceedings in this court.
[8] Mr Rosen argues that he was denied procedural fairness because (a) he requested an extension in the deadline for his materials prospectively, but his request was not denied until after the deadline had expired, thus denying him the ability to meet the deadline if his request was denied; (b) he was misdirected by court staff to the Court of Appeal for appellate review of the order of Shore J.; and (c) he was entitled to more support and guidance from the court once he became self-represented as of July 9, 2024.
[9] These arguments do not avail Mr Rosen.
[10] Court orders are mandatory requirements, not “suggestions” or topics for further discussion. Parties are expected to raise all their issues respecting scheduling and then to abide by the schedule established by the court.
[11] The appeal was actively case managed in the Divisional Court. The deadline of July 15, 2024 was established on May 30, 2024 and took account of Mr Rosen’s request for additional time because of his counsel’s unavailability during part of June 2024. The case management judge directed an early hearing date for the appeal, but not before August 26, 2024, to afford sufficient time for responding materials and court preparation.
[12] On June 28, 2024, the Registrar informed the parties that the appeal would be heard on September 4, 2024. In response, Mr Rosen requested that the appeal be heard by a panel of three judges rather than the usual single judge hearing for LTB appeals. Rescheduling before a panel would have entailed significant delay (ordinary course panel hearings would have been scheduled in the late fall and early winter of 2024-25); Shore J. denied the request.
[13] Six days before his filing deadline, Mr Rosen emailed the court requesting an extension in his deadline of 45-60 days, a request he later refined to a requested extension from July 15th to August 26th.
[14] In his motion materials on this stay motion, Mr Rosen states that he was not seeking an adjournment of the hearing date of September 4th.
[15] I do not accept that argument.
[16] Shore J. established a schedule that accommodated Mr Rosen’s scheduling to defer his deadline to mid-July, with a month for responding materials and two weeks for the court to prepare for the hearing – the usual minimum time periods for these steps for an appeal before a single judge of the Divisional Court. Mr Rosen’s request for an extension for his own materials to August 26th would have left eight days for delivery of responding materials and for preparation by the court. Given this, it was certainly open to Shore J. to conclude that the requested extension necessarily entailed adjournment of an appeal she had directed be scheduled promptly.
[17] There was no unfairness in Mr Rosen’s extension request not being disposed of until after his deadline had expired. Mr Rosen’s argument to the contrary rests on an erroneous presumption: that he was relieved of the court-ordered deadline because he wrote in asking for an extension.
[18] Court orders are binding and effective when they are made. They are not suspended because a party brings an appeal, a review motion, seeks reconsideration, or otherwise challenges the order, unless there is either (a) a statutory stay, or (b) the court grants an order for a stay. There was no stay applicable to the court directed scheduling orders.
[19] Once Mr Rosen received the court’s decision denying his extension, the respondent moved to dismiss the appeal because Mr Rosen had not met his deadline to perfect his appeal. Mr Rosen’s response was to ask Shore J. to reconsider her decision to deny the extension. Case management is not a debate between litigants and the court – the option available to Mr Rosen, having missed his deadline, was to remedy his non-compliance as swiftly as possible. He did not do that. As of August 2, 2024, when Shore J. dismissed the appeal, Mr Rosen had still not delivered his appeal materials.
[20] The decision of the motions judge discloses no error in principle and no palpable and overriding error of fact: it is beyond dispute that Mr Rosen missed the deadline for perfecting his appeal, had no plausible explanation for that default, had not cured that default, and that the consequence the default would delay the appeal, all in the context of a case that was actively case managed.
[21] The motions judge could have exercised her remedial discretion in a less draconian manner. She could have lifted the stay of the LTB eviction order but allowed the underlying appeal to proceed. However, when placed in the overall context of this case – which involves an eviction order dating back to March 2023, serious historic default by Mr Rosen in his fundamental obligation to pay rent monthly, and the history of case management of this appeal, I see no basis upon which a review panel could conclude that the motions judge’s exercise of discretion to lift the stay “is so clearly wrong that it amounts to an injustice or the motion judge gave no or insufficient weight to relevant considerations”. This conclusion is a sufficient basis to conclude that Mr Rosen has not met the test on the merits to obtain a stay pending proceedings to review the order of Shore J.
No Irreparable Harm
[22] An eviction, by itself, is not “irreparable harm” within the meaning of the test for a stay of an eviction order. The totality of the circumstances must be assessed to determine whether the harm is “irreparable” in a particular case.
[23] I accept the respondent’s argument that here, where the monthly rent is about $10,000 per month, there is no basis to suppose that Mr Rosen will be unable to arrange or afford new accommodations.
[24] I accept Mr Rosen’s argument that an eviction on very short notice will entail additional costs and stress for him that could be substantial. I also accept his argument that he was delayed in seeking recourse from the order of Shore J., in part, by misdirection by Divisional Court office staff. I also accept his argument that, as a self-represented litigant, he is entitled to support from the court in accessing the justice system. Favreau JA described the timing as “unfortunate”, which is certainly so. I accept that this “unfortunate” timing will result in additional material expense and stress for Mr Rosen.
[25] Mr Rosen was not entitled to plan his life on the basis of the order of Shore J. being suspect until his stay motion was decided: the order was effective on August 2, 2024, and it was ill-advised of Mr Rosen to await notice of eviction from the Sheriff before treating his appeal proceedings and stay motion as matters requiring his urgent attention. I have no reasonable explanation in the materials before me for the delay in getting appeal proceedings and a stay motion underway in the Court of Appeal that saw that motion heard in that court on September 25th – I do accept that the delay in obtaining a decision between September 25th and October 2nd was a result of an error by court staff – and the additional expense and costs caused by this error are apparently attributable to Mr Rosen’s incorrect view that he need not make contingency plans until he received the court’s stay decision.
[26] Nonetheless, if Mr Rosen had satisfied me that there was an arguable basis to restore the stay pending a review motion of Shore J.’s decision, and if the balance of convenience favoured granting a stay, the impact of court staff’s error on the harm to Mr Rosen of eviction on short notice would have been sufficient to tip the balance to find that the harm was irreparable: it is obviously unjust to have harms visited upon a litigant as a result of an error by the court, and the court would strive to remedy those harms if the merits and the balance of convenience weighed in favour of a stay.
Balance of Convenience Does Not Favour Granting a Stay
[27] Shore J. case managed Mr Rosen’s appeal to have it briefed and heard on the merits promptly. A party enjoying the benefit of a stay pending appeal has an obligation to proceed promptly, with diligence, to minimize the prejudice to the responding party of the stay being in place. Shore J.’s finding that there was a pattern of Mr Rosen seeking to delay the hearing of the appeal is justified on the record before Shore J. and weighs decisively in the balance of convenience.
[28] I sympathize with Mr Rosen’s argument that he has been disadvantaged and will be caused expense and stress as a result of an error by court staff. That circumstance – alone – could have led me to grant a brief stay of the eviction order – alternative relief requested by Mr Rosen. However, the court must also consider the position of the respondent, and the overall history of the case.
[29] Eviction by the Court Enforcement Office (“CEO”) is not an event that can be casually postponed for a few days. Counsel for the landlord filed the eviction order with the CEO on August 6th and was the eviction was originally scheduled for September 30th and then deferred to October 3rd by the CEO – a schedule reflecting the demands on and resources of the CEO. If I ordered delay of the October 3rd eviction, it is probable that it would be delayed for at least several weeks. An order from this court directing an earlier rescheduling of the eviction would predictably delay and disrupt other scheduled business of the CEO.
[30] The LTB eviction order, itself, is now about 1.5 years old. The proceedings have been protracted and have included long periods during which rent was not paid. In the materials filed on this motion, the landlord puts evidence before the court that Mr Rosen ceased paying monthly rent for the months of August and September 2024. Mr Rosen has acknowledged that he has not paid a final costs order of a panel of this court (of $10,000) that has now been outstanding since November 2023. I make no firm finding about these points, given the truncated schedule for this motion (which did not include an opportunity for Mr Rosen to file reply materials), but I do conclude that – from the landlord’s perspective – further delay will prolong a bitterly conflicted landlord and tenant relationship, and may lead to further financial losses for the landlord.
[31] I am also mindful of the nature of the decision under appeal. A panel of this court upheld an LTB eviction order, and Mr Rosen thereafter sought to void the order by payment of what was owing pursuant to that order. The LTB concluded that Mr Rosen had not paid what was owing and declined to void the eviction order. An appeal from that decision should be a straightforward matter and would be based on the record before the LTB – reviewing the LTB’s findings about what was owed under its prior order, and what had been paid by Mr Rosen. Transcripts from the LTB proceedings were available as of June 2, 2024.
[32] The balance of convenience in this situation requires assessment of Mr Rosen’s interests in having his tenancy continue pending review proceedings, and the respondent’s interests in having this matter adjudicated promptly, as had been directed by the case management judge. A stay is an equitable remedy, and Mr Rosen’s delay in perfecting his appeal, to the point that the scheduled appeal date would be lost, is a sufficient basis on which to conclude that the balance here weighs in favour of the respondent.
Conclusion on the Stay Issue
[33] I am not satisfied that the first and third branches of the test for a stay have been satisfied, and therefore decline to grant the requested stay order.
[34] I considered exercising my discretion to grant a brief stay to afford Mr Rosen some further time to make moving arrangements but concluded that this would be unfair to the Respondent: it would probably entail a delay in the eviction process of weeks and would serve to prolong and amplify conflict unnecessarily. Mr Rosen’s choice not to make contingent moving plans pending decision on his stay motion is not a proper basis to delay the scheduled eviction in all the circumstances.
Extension Granted to seek Review of the Order of Shore J.
[35] As I indicated above, it would have been open to Shore J. to have lifted the stay of the eviction order but permitted the appeal to proceed. I conclude that Mr Rosen’s proposed motion to review the order of Shore J. in respect to this remedial point is a “serious issue” – that is, it is an arguable basis for review.
[36] I decline to review all the circumstances contributing to the delay in commencing a review motion in this court. They include misdirection by court staff. The court is obliged to do what it can to correct the consequences of that error. Given that Mr Rosen is self-represented, routes and deadlines for appeals and review are complicated, and the need for dispatch in hearing the review motion is abated by lifting the stay, I consider it fair to permit Mr Rosen an extension of time to pursue the review motion, if he wishes to do that after eviction.
[37] I appreciate that granting the extension while denying the stay may be a hollow remedy in this case. It will be for Mr Rosen to decide whether there is any point, for him, in pursuing the review motion, with a view to having the appeal heard on the merits after he has been evicted.
[38] In all of these circumstances, I extend the time for Mr Rosen to seek review of the order of Shore J. to October 25, 2024, by which time Mr Rosen shall serve and provide to this court a fresh Notice of Motion if he wishes to proceed. I have accorded Mr Rosen more time than would be usual to complete this step, in light of the disruption resulting from the eviction.
[39] In my case management directions respecting this motion, I indicated that I would only deal with the stay motion now and would leave the extension motion to be addressed later. I appreciate that I have not heard from the landlord in detail about the extension motion. However, now being immersed in the history of this matter, it is clear, on the record, that Divisional Court staff erred in advising Mr Rosen to take his case “to a higher court”, and that this error took place early enough in the process that a review motion and stay motion pending review could have proceeded in this court on an earlier schedule. I appreciate that Mr Rosen missed his deadline for a review motion in this court as of the time he first sought to pursue a challenge, but the deadline for a review motion – four days – is often relieved from in respect to a review from a final order of a motions judge. I think it is evident from the record that if court staff had provided correct information, Mr Rosen would have been permitted to proceed with his review motion, and I wish to spare the parties the expense and delay of another preliminary motion.
[40] Although it should be clear from my reasons on the stay motion, the error by court staff would not have affected the result of an earlier stay motion in this court.
[41] I would make a final observation about the error by court staff. Most LTB appeals in this court are now heard by a single judge of the Divisional Judge, by direction of the Associate Chief Justice. Some LTB appeals are disposed of pursuant to r. 2.1, and those decisions have also been assigned to single judges of the Divisional Court by direction of the Associate Chief Justice. Those appeals and r. 2.1 decisions are not subject to review by a panel of this court – recourse is to the Court of Appeal, with leave from that court. Motions decisions of a single judge of the Divisional Court are reviewable before a panel of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act.
[42] Court staff are not supposed to provide legal advice: they are not trained lawyers, and it is not the function of the court to give legal advice in any event. On the other hand, court staff do try to help litigants navigate the court process, particularly with self-represented litigants. Sometimes court staff get it wrong: they are not trained lawyers, and some process issues are quite complicated. When there is a mistake, the court will strive to correct the error and to limit any resulting prejudice (for example, Ledsham v. Air Canada Pilots Association, 2022 ONSC 1877 (Div. Ct.)), as has been done in this case: the highly expedited and case managed process for this motion resulted in the court deciding the stay issue before the scheduled eviction was carried to be carried out, albeit with no time to spare.
Costs
[43] The Respondent has prevailed on this motion and is entitled to her costs, which I fix in the amount of $1,700, inclusive, payable within thirty days (the requested partial indemnity costs, which are very reasonable). The Respondent requested substantial indemnity costs because of litigation misconduct, notably, excessive allegations of impropriety made against the Respondent and her counsel. I decline to engage in an analysis of this issue over a costs differential of about $800 – the alleged misconduct directly relevant to this motion caused no prejudice to the Respondent and an analysis of the other alleged misconduct would have required the court to inquire into matters that are not necessary to address to dispose of this motion.
Order
[44] This court reviewed this motion and rendered a decision, without reasons, midday on October 2, 2024, in light of the eviction scheduled for the following day. The court’s decision was as follows:
The court is aware that Mr Rosen requires a decision on his stay motion as soon as possible. Ordinarily, the decision would be delivered in the court's reasons for decision. However, the court does not wish to delay providing its decision for the time required to deliver reasons. Thus, the court delivers its decision now, with reasons to follow.
The motion for an extension is granted. The motion for a stay is denied. The eviction may proceed on or after October 3, 2024.
Reasons shall follow as soon as reasonably practicable. The parties are directed not to communicate further with the court prior to release of the court's reasons.
[45] As reflected in these reasons and my order of October 2, 2024, this motion is disposed of as follows:
The motion is granted for an extension of time to move to review the order of Shore J. made August 2, 2024. The deadline for an extension motion is extended to October 25, 2024, by which time Mr Rosen shall deliver a fresh Notice of Motion to review the order of Shore J. if he wishes to proceed with that motion.
The motion for a stay of the order of Shore J. is dismissed.
Mr Rosen shall pay the Respondent costs of this motion fixed at $1,700, inclusive, payable within thirty days.
D.L. Corbett J.
Released: October 7, 2024
CITATION: Rosen v. Reed, 2024 ONSC 5224
DIVISIONAL COURT FILE NO.: 254/24
DATE: 20241007
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
DAVID ROSEN
Appellant / Moving Party
– and –
WENDY REED
Respondent / Responding Party
ENDORSEMENT
D.L. Corbett J.
Date: October 7, 2024