Citation and Court Information
CITATION: 2515 Eglinton West Residency Corp. v. Modeste, 2025 ONSC 1078
DIVISIONAL COURT FILE NO.: 196/24 DATE: 20240731
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MYERS, J.
BETWEEN:
2515 EGLINTON WEST RESIDENCY CORP. Appellant (Landlord)
Douglas H. Levitt and Timothy M. Duggan, for the Appellant (Landlord)
– and –
THEOLINA MODESTE Respondent (Tenant)
Joseph Kary, for the Respondent (Tenant)
HEARD at Toronto: July 31, 2024
REASONS FOR DECISION
FL Myers J. (Orally):
[1] This is a motion to extend the time for appeal by a landlord. The Landlord and Tenant Board held a hearing in the landlord’s absence. On review, the board considered that service on four addresses for the landlord was sufficient and found it highly unlikely that none of the landlord’s employees received the notice.
[2] Mr Duggan submits that it was in evidence that two of those employees were no longer employed at the date of service and a third was not employed at the address of service. The board’s emphasis then, on the likelihood of a notice being received, raises an issue of law he submits, as to whether the board misapprehended the evidence or made an irrational finding. That might be a different way of saying it made a palpable and overriding error, but I don’t think anything turns on the difference.
[3] The point that Mr Duggan does not emphasize is that the fourth notice went to the proper corporate representative at the proper address. The board reviewed the decision of this court in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541, and held that service of the landlord at the correct address without a return to sender by the post office was prima facie proof of good service. The tenant only needed to serve the corporation or its proper representative. The other three were gilding the lily.
[4] As discussed by the Divisional Court in the Q Res IV Operating GP Inc. v. Berezovs’ka decision, the issue of the validity of notice and whether the landlord or a party exercised due diligence upon receiving notice is not a question of law and is therefore not a matter that can be appealed under s. 210 of the Residential Tenancies Act, 2006.
[5] With some evidence of service on the corporation without a return to sender, the applicant cannot say that there was no evidence or that the board’s decision was irrational. That is, despite the landlord’s intention to appeal and the slovenly steps that it took, I would not grant an extension of time because there is no error of law on which to base an appeal. Said in a different way, even if the appeal had been brought on time, I would quash the appeal on the basis that it does not raise a question of law.
[6] Accordingly, the motion to extend the time is dismissed.
[7] The presumptive or normative approach in Ontario is for a successful party to receive partial indemnification for the legal costs that they incurred in the proceeding. In this case, the entire proceeding has come to an end as a result of this dispositive motion.
[8] Mr Duggan is quite right that Rule 57 mandates the filing of a costs outline in every case. Unfortunately, the rule is often honoured in the breach. I would exercise my discretion not to rely on the rule strictly in a case where a landlord is found to have behaved abominably towards its tenants and then repeatedly violated the rules of procedure related to the appeal, while at the same time hounding the tenant with threats of eviction.
[9] In my view, the tenant and her colleagues have done yeoman’s service in bringing the matters to light and in advancing their rights. They ought to be partially indemnified for the costs of doing so. Accordingly, I fix the costs of the motion in the amount that seems to be reasonable in my experience but also bearing in mind the costs that the unsuccessful party ought to have reasonably expected to incur. Costs are based on the discretion of the court under s. 131 of the Courts of Justice Act guided by the factors set out in Rule 57.01 of the Rules of Civil Procedure.
[10] In my view, taking all things considered, it is fair and reasonable for the landlord to indemnify the tenant’s costs of the proceeding in the amount of $3,500, inclusive of taxes and disbursements.
FL Myers J.
Oral Reasons Released: July 31, 2024
Written Endorsement Released: February 18, 2025
CITATION: 2515 Eglinton West Residency Corp. v. Modeste, 2025 ONSC 1078
DIVISIONAL COURT FILE NO.: 196/24 DATE: 20240731
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
2515 EGLINTON WEST RESIDENCY CORP. Appellant (Landlord)
– and –
THEOLINA MODESTE Respondent (Tenant)
ORAL REASONS FOR DECISION
MYERS J.
Oral Reasons Released: July 31, 2024 Written Endorsement Released: February 18, 2025