Court File and Parties

CITATION: Elsimali v. Pinedale Properties, 2024 ONSC 5730 DIVISIONAL COURT FILE NO.: 492/24 DATE: 2024-10-22

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: AHMED ELSIMALI and NURIYE ELMUHAMMED, Appellants/Tenants AND: PINEDALE PROPERTIES LTD., Respondent/Landlord

BEFORE: Matheson J.

COUNSEL: Elizabeth Tinker, for the Appellants Kevin A. Kok, counsel to Pinedale Properties Ltd.

HEARD at Toronto: October 21, 2024, in writing

Endorsement

[1] By notice from the Registrar dated September 3, 2024, the appellants were given notice that the Court is considering making an order staying or dismissing this proceeding under r. 2.1.01 of the Rules of Civil Procedure.

[2] The appellants had filed a notice of appeal from a decision of the Landlord and Tenant Board (LTB) dated July 5, 2024. In that decision, the LTB granted the respondent’s review request and sent the matter back for a new LTB hearing of the appellants’ rent abatement application. The reviewing Member found that the underlying LTB decision failed to “distinguish or address” this Court’s decision in Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650.

[3] There is no issue that the LTB review order in question is interlocutory. It remains to be seen whether the appellants will prevail at the new LTB hearing or, if unsuccessful, on what grounds. The respondent asked that this Court invoke the process under r. 2.1.

[4] In response, I gave the following directions:

The Tenants have commenced an appeal from the Landlord and Tenant Board (LTB) order dated July 5, 2024, which granted a review request by the Landlord and sent the matter back for a new hearing. As set out in the Landlord’s letter to this Court dated August 30, 2024, there is therefore an issue of jurisdiction because the proceedings at the LTB are not completed. The Landlord’s letter lists Divisional Court decisions in support of a request that the Court invoke the process under r. 2.1 of the [Rules of Civil Procedure].

Subject to receiving and considering submissions from the Tenants, it appears that this Court does not have jurisdiction to hear the appeal. However, this LTB decision could be challenged in a later appeal from a final LTB decision, if a timely appeal is brought at that time.

The Registrar is therefore directed to give notice that the Court is considering making an order under r. 2.1, dismissing this motion. Rule 2.1 is quoted below. The Tenants are encouraged to get legal advice.

[5] The appellants have made submissions in response to the notice under r. 2.1. They submit that the same policy reasons that support no appeals from interlocutory decisions support this appeal in the particular circumstances of this case. This does not assist the appellants. It is often the case that one side or the other submits that an interlocutory appeal would efficiently end the matter. The issue is jurisdiction.

[6] Further, the appellants assume that there will be a problem arising from the interpretation of Hassan. That remains to be seen. The reviewing Member did not purport to definitively interpret that case, quite the contrary. The Member found there “may” be a conflict with that case and that the hearing decision failed to “distinguish or address” that case. It is insufficient to say that there might be a problem with the final LTB decision, before it is rendered.

[7] The appellants also rely on decisions of this Court that permitted some discretion in the context of proposed interlocutory appeals from the Licence Appeal Tribunal, specifically The Personal Insurance Company v. Jia, 2020 ONSC 6361 and Security National Insurance Company v. Kumar, 2018 ONSC 3556. However, those decisions have been expressly not followed in what is now the leading case on the issue, finding no right of appeal from an interlocutory order: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874. There is no right of appeal from an interlocutory order of the LTB: Ainsley v. Proulx, 2023 ONSC 6308. There is no jurisdiction to hear this proposed appeal.

[8] Subrule 2.1.01(1) authorizes the Court to dismiss a proceeding as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is such a case.

[9] In the alternative, appellants ask that this proceedings be changed into an application for judicial review. This proposal raises the issue of prematurity – the application would be premature and the appellants would have to show exceptional circumstances before the Court would exercise its discretion to hear the application. I am not persuaded to convert this appeal in this r. 2.1 process, in which the respondent has not been given a right to make submissions.

[10] This proceeding is therefore dismissed under r. 2.1 of the Rules of Civil Procedure.

Matheson J.

Date: October 22, 2024