Court File and Parties

Court File No.: DC-19-34-00 Date: 2019-04-15 Superior Court of Justice - Ontario

Re: Lisa Adele Naomi Munroe, Appellant And: Kulbir Gill and Tersam Gill, Respondents

Before: Barnes J.

Counsel: Lisa Adele Naomi Munroe – Self Represented Kulbir Gill and Tersam Gill – Self Represented

Heard: April 11, 2019

Endorsement

[1] The Appellant’s motion for leave for an extension of time to file a Notice of Appeal is dismissed.

[2] The order of the Landlord and Tenant Board dated February 23, 2019 remains unchanged, except for paragraph 7 only, which is varied to read as follows:

Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlords, on or after April 30, 2019.

[3] The date of March 12, 2019 is varied to April 30, 2019. All other paragraphs of the Order remain the same and are not modified by this change.

[4] The Appellant submits that she was not notified of the date of the hearing. An error in the endorsement date misled her as to when the 30 day limitation period began to run and the Sheriff has failed to comply with the terms of the order and her appeal has merit because she has paid the rent arrears.

[5] The Respondents submit that the Appellant was notified of the hearing date before the Landlord and Tenant Board, but decided not to attend and her appeal has no merit. Therefore, leave should not be granted.

[6] Section 210(1) of the Residential Tenancies Act, 2006, permits “a person affected by an Order of the Board to appeal to the Divisional Court within 30 days after being given the order, but only on a question of law. [Emphasis added].

[7] The issues raised by both parties are not determinative or relevant to the test under s. 210(1) of the Residential Tenancies Act, however, both parties are unrepresented and therefore, I will address the issues they have raised.

[8] I am satisfied, based on material produced by the Respondents and reviewed by the Appellant, that the Appellant was aware of the date of the hearing but chose to ignore it. The cheque the Appellant claims to represent payment of the arrears has been found by the Board not to constitute payment of the arrears because the account upon which it was drawn did not have sufficient funds. Any issues with the Sheriff’s compliance with the order has nothing to do with the correctness of the order or whether an extension of time to file a Notice of Appeal should be granted.

[9] The Board’s decision was based on a finding of fact. The fact found was that the Appellant was in rent arrears. From this factual finding flows the eviction order. Therefore, the Appellant seeks to appeal a finding of fact, a route of appeal not available under s. 210(1) of the Residential Tenancies Act. Such a circumstance is succinctly summarized by Myers J in DiNunzio v. Lobo, 2018 ONSC 670, at paragraph 7 as follows:

This court does not sit just to review the correctness of decisions of the Landlord and Tenant Tribunal. We are specifically limited by the statute [s. 210(1)] to hearing cases only where the tribunal has made an error of law. In this case, I have reviewed the tribunal member’s decision as well as the reconsideration decision and there is no palpable error of law; there is no prima facie case to an error of law; there is no case pleaded that is an error of law; and this court does not have jurisdiction to review the errors of fact relied on by Mr. Lobo.

[10] The Appellant’s appeal is an appeal of a question of fact, not law. Upon reading the material filed there is no palpable error of law warranting reconsideration. Therefore, the application is dismissed. I note also that there is no merit to the appeal.

[11] The Appellant has been aware of the decision of the Board at least since March 5, 2019. Action by the Sheriff is delayed until April 30, 2019 to provide her with additional time to take steps to vacate the premises.

Barnes J. Date: April 15, 2019