) ) HILLIAN JAMES LILLIAN JAMES GILLIAN CUNNINGHAM Tenants/Respondents in Appeal – v. –, 2017 ONSC 1206

CITATION : James v. Hafeez, 2017 ONSC 1206 DIVISIONAL COURT FILE NO.: 010/16 LTB No: 64718-15 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) HILLIAN JAMES LILLIAN JAMES GILLIAN CUNNINGHAM Tenants/Respondents in Appeal – and – FAZL HAFEEZ Landlord/Appellant in Appeal ) ) ) ) ) ) ) ) ) ) ) Moira Daly , for the Respondents Fazl Hafeez acting in person for the Appellant ) ) HEARD at Toronto: February 17, 2017 kiteley J. ( Orally ) [ 1 ] This is a matter in which Hillian James, Lillian James, and Gillian Cunningham are tenants and Fazl Hafeez is landlord.

This is an appeal by the landlord pursuant to s. 210(1) of the Residential Tenancies Act . [ 2 ] The tenants took possession June 1, 2015. They say they vacated before the end of June, 2015 on account of gas problems on the premises. The landlord says there were no gas problems and they didn’t remove all their belongings until September 2015. The difference need not be resolved today. [ 3 ] There were many proceedings before the Tribunal that gave rise to seven orders:

(1) Hearing August 6, 2015. Order August 7, 2015.

(2) Hearing September 1, 2015. Order September 2, 2015.

(3) Hearing also dated September 1, 2015 and a second order September 8, 2015.

(4) Hearing October 30, 2015. Order November 2, 2015.

(5) Hearing November 20, 2015. Order November 23, 2015.

(6) Hearing January 21, 2016. Order January 29, 2016.

(7) Order February 2, 2016. [ 4 ] On September 2, 2015, the Tribunal made an order that the landlord owed to the tenants $11,084.16 plus interest. A writ of execution was issued September 15, 2015. That order and the writ of execution are driving these proceedings. [ 5 ] On December 23, 2015, the landlord served a notice of appeal from the orders dated September 2, 2015, November 2, 2015 and November 23, 2015.

The landlord filed the notice of appeal on January 6, 2016 and the staff in the Divisional Court accepted the notice of appeal even though the appeal from the orders made September 2, 2015 and November 2, 2015 were out of time. [ 6 ] The appellant delivered a certificate respecting evidence indicating that the transcript of the hearing dated November 20,

2015 was relevant. [ 7 ] On January 7, 2016, the Acting Assistant Registrar issued a certificate of stay of the orders dated September 2, 2015, November 2, 2015 and November 23, 2015 without apparently noticing that only the appeal with respect to the order dated November 23, 2015 had been filed on time. [ 8 ] As a result of that certificate of stay, the writ of execution filed with the sheriff’s office in the amount of the judgment for $11,084.16 plus interest has been stayed. [ 9 ] On March 2, 2016, the landlord served a fresh as amended notice of appeal in which he listed the following orders as the subject of this appeal:

(1) August 7, 2015

(2) September 2, 2015

(3) September 8, 2016 (which should have been 2015)

(4) November 2, 2015

(5) November 23, 2015

(6) January 29, 2016

(7) February 2, 2016. [ 10 ] In other words, he added four additional orders to his original notice of appeal. [ 11 ] On March 5, 2016, he filed his fresh as amended notice of appeal and Divisional Court staff allowed him to file without noticing the he needed to have obtained leave for late filing of the notice of appeal with respect to all of them except November 23, 2015 which had properly been the subject of the notice of appeal filed January 6, 2016. [ 12 ] On March 5, 2016, the landlord also filed a fresh as amended certificate respecting evidence, in which he listed the transcripts of the hearings on all of the dates above including two from November, 2015. [ 13 ] On March 2, 2016, the tenants served a certificate respecting evidence in which counsel for the tenants disagreed about the need for the transcripts. [ 14 ] Counsel for the tenants brought a motion returnable April 22, 2016 for an order for dismissal of the appeal for failure to file transcripts.

That motion was resolved on the morning of the motion because the landlord filed a certificate of the transcriptionist that the transcripts for November 20, 2015 and January 21, 2016 had been ordered. Only the transcript of November 20, 2015 was properly within the notice of appeal. The transcript of January 21, 2016 was with respect to the fresh as amended notice of appeal which was late. [ 15 ] As of February 17, 2017, neither of those transcripts have been prepared. The landlord tells me that he obtained the certificate of the transcriptionist for those two dates but he never had the transcripts prepared.

The landlord has still not provided a certificate with respect to all of the other transcripts that his fresh as amended notice of appeal listed. I recognize that counsel for the tenants takes the position that not all of them are necessary but to the extent he listed them in his certificate of evidence he had a responsibility to produce them.

He has not done so. [ 16 ] From April 22, 2016 when the tenants’ motion to dismiss was not pursued to the middle of January, 2017, the landlord did nothing. [ 17 ] Pursuant to Rule 61.13(2), the Assistant Registrar issued a notice dated January 6, 2017 dismissing the appeal which notified the landlord that he had not perfected the appeal within one year after filing the notice of appeal or he had not filed a transcript of evidence within 60 days after the Registrar received notice that the evidence had been transcribed. [ 18 ] On January 27, 2017, the Assistant Registrar issued the order dismissing the appeal pursuant to Rule 61.13. [ 19 ] The landlord has brought this motion to set aside the dismissal.

Based on his materials, he has concentrated on the issue of transcripts. He filed an email from the transcriptionist who appears to confirm that she has an order for preparation of transcripts on three dates in 2011 which he says is relevant but which are not listed in any certificate with respect to appeal. [ 20 ] While the landlord is focusing on transcripts, the real issue is that he has not perfected the appeal within one year from the filing of his appeal filed January 6, 2016. [ 21 ] The fresh as amended notice of appeal dated and filed March 5, 2016, was filed improperly.

One year had not elapsed on the fresh as amended notice of appeal but it should never have been received by the court without leave for late filing. [ 22 ] The landlord’s position is that I should set aside the dismissal order so that he can proceed with his appeal. [ 23 ] The tenants’ position is that the dismissal order ought not to be set aside. [ 24 ] It is important that the court have control over its resources and the processes. This court cannot permit cases to not proceed in accordance with the Rules.

[ 25 ] The motion record that the landlord has filed is inadequate. It concentrates on the transcribing of transcripts which is Rule 31.13(2)(b). It says not a word about having failed to perfect the appeal. When I raised that with him, the landlord says he had not been told about subparagraph (

a) or that he was responsible to perfect within 12 months of January 6, 2016. He cannot blame others.

It is his responsibility to ensure that he pursues his appeal within the requirements of the Rules of Civil Procedure . [ 26 ] As I mentioned to this date, there is a certificate with respect to the transcription of two dates but not a single transcript. [ 27 ] The landlord insists that his case has never been heard on the merits and the tenants will get away with what he insists is “fraud” if the appeal is dismissed on a technicality. [ 28 ] The fact is that the landlord has not on his own initiative pursued his appeal.

He reacted in April 2016 when the tenants brought a motion to dismiss and he reacted again in January 2017 when the Assistant Registrar served the notice of dismissal. [ 29 ] In the meantime, the landlord has had the benefit of the stay of the order of September 2, 2015 on the basis of a certificate of stay which arguably should never have been issued. [ 30 ] On the inside of the motion record, I have made the following orders: “Motion by the landlord to set aside dismissal order dated January 27, 2017. For oral reasons given, motion to set aside dismissal order is dismissed.

The appeals contained in the landlord’s notice of appeal filed January 6, 2016 and March 5, 2016 are dismissed. The certificates of stay dated January 7, 2016 and March 21, 2016 are set aside. The tenants may take out this order without approval as to form and content. No costs of this motion.” addendum [ 31 ] The motion before me is with respect to the dismissal of the notice of appeal filed January 6, 2016. It does not deal with the fresh as amended notice of appeal that was wrongly filed March 5, 2016.

There is no point in leaving the fresh as amended notice of appeal outstanding because it will also be dismissed. ___________________________ KITELEY J. Date of Reasons for Judgment: February 17, 2017 Date of Release: February 24, 2017 CITATION : James v. Hafeez, 2017 ONSC 1206 DIVISIONAL COURT FILE NO.: 010/16 LTB No: 64718-15 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN:

HILLIAN JAMES LILLIAN JAMES GILLIAN CUNNINGHAM Tenants/Respondents in Appeal – and – FAZL HAFEEZ Landlord/Appellant in Appeal ORAL REASONS FOR JUDGMENT KITELEY J . Date of Reasons for Judgment: February 17, 2017 Date of Release: February 24, 2017