) ) YUMA MUNGENI Applicant – v. –, 2017 ONSC 1517

CITATION : Mungeni v. Housing Connections and Toronto Community Housing Corporation, 2017 ONSC 1517 DIVISIONAL COURT FILE NO.: 600/15 DATE: 20170302 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) YUMA MUNGENI Applicant – and – HOUSING CONNECTIONS AND TORONTO COMMUNITY HOUSING CORPORATION Respondent ) ) ) ) ) ) ) ) ) ) ) Erica Richler , for the Applicant David Tortell , for the Respondent ) ) HEARD at Toronto: March 2, 2017 KITELEY J. ( Orally ) [ 1 ] This is a motion by the applicant to set aside the Registrar’s order of dismissal dated December 9, 2016. [ 2 ] Mr.

Mungeni had been in receipt of a rent subsidy for several years.

In 2013, he was represented by West Scarborough Community Legal Services when he had launched an application for judicial review in connection with a decision by the Housing Connections Review Panel to cancel his subsidy and he had launched an appeal to the Divisional Court seeking to set aside the order for his eviction. [ 3 ] In the consent that he signed in 2014 to settle the judicial review application, he acknowledged that Housing Connections intended to issue a new “decision letter” so he was well aware that his eligibility for rent subsidy would continue to be an issue. [ 4 ] In a letter dated September 22, 2014, Housing Connections confirmed that on August 21, 2014 the Review Panel had deferred the decision on loss of subsidy for failure to obtain income in order to provide more time to him to submit the information necessary to calculate the household portion of the rent.

In that September 22, 2014 letter, he was told what documents were required immediately and what would be required on the 15 th of each month. [ 5 ] Mr. Mungeni did provide affidavits dated October 10, 2014, November 10, 2014 and November 26, 2014 attached to which were bank statements and pay stubs and correspondence as to his immigration status. There is no evidence before me that he provided such information and evidence after November 26, 2014. [ 6 ] Housing Connections made a decision that, effective March 31, 2015 his subsidy terminated. That meant that he became a “market rent” tenant.

He fell into arrears and the landlord initiated proceedings before the Landlord Tenant Board. An order for his eviction for arrears of rent was issued and he was evicted in mid-December 2015. [ 7 ] On November 17, 2015, Mr. Mungeni launched this Notice of Application in which he sought an order setting aside the March 31, 2015 decision and the September 2, 2014 decision (which is a reference to the August 2014 deferral decision). [ 8 ] The Registrar of the Divisional Court issued a notice dated November 22, 2016 that Mr. Mungeni had to perfect his Notice of Application by December 9. [ 9 ] On December 8, Mr.

Mungeni contacted counsel for the City and indicated he intended to

schedule a date for a motion to set

aside the dismissal order. He took no steps to perfect his Application but did take steps to set aside the inevitable dismissal order which was made on December 9. [ 10 ] In his contact with counsel for the City, he indicated he intended to bring this motion on January 17. The date was changed, he says because the Divisional Court changed it but why it was changed is of no moment. The point is that he did take steps on December 8 in order to obtain the date for the motion. [ 11 ] On February 21, 2017, he served a notice of motion and other materials.

Counsel made submissions on the factors identified in Paulsson v. The University of Illinois 2010 ONCA 21 . [ 12 ] There is no time limit for launching a Notice of Application in this situation. Based on the circumstances, I infer that Mr. Mungeni launched it seven months after the subsidy termination decision was made at a time when he knew he was about to be evicted. I will, however, accept that he formed the intention to start the Notice of Application within a reasonable time. [ 13 ] Mr. Tortell did serve and file the Record of Proceedings but for 12 months, Mr. Mungeni did nothing.

There were no transcripts and so Mr. Mungeni was required to prefect within 30 days of November 17, 2015. [ 14 ] The next event was the dismissal notice by the Registrar in November 2016. Even then, he did not attempt to perfect his Application; he took steps to set aside the dismissal order. [ 15 ] Mr. Mungeni has three explanations for the delay. First, he could not retain a lawyer.

Second, he was without fixed address and could not focus on this Notice of Application and third, he has mental health issues arising from the termination of his rent subsidy. [ 16 ] The evidence is sparse about his attempts to obtain a lawyer. He did manage to file a reasonable Notice of Application without legal help. This Notice of Application is at least his second experience in Divisional Court; the earlier one having been in 2013 which, as indicated earlier, was settled in 2014. Mr. Mungeni did manage to access duty counsel services for today’s motion.

I do not accept that his failure to retain a lawyer is reasonable in the circumstances of this case. [ 17 ] Mr. Mungeni also says that he was without fixed address and could not focus. He has provided no corroboration that he has not had a fixed address. Indeed, the Registrar’s notice to dismiss reached him but there is no corroboration that he has uncertain housing circumstances or that if that existed, that impacted his ability to perfect his application. [ 18 ] The third explanation is that he has mental health issues caused by the termination of his rent subsidy. The rent subsidy decision was March 31, 2015.

Copies of two prescriptions for medication have been provided dated in June and July 2014 which predated the subsidy termination decision so those prescriptions are not evidence that he has had such mental health issues that were caused by the subsidy termination decision that they afford to him an explanation for delay. [ 19 ] I am not satisfied with any of his explanations for the delay. [ 20 ] Counsel for the respondent takes the position that the respondent will suffer prejudice if the motion to set aside the dismissal order is granted. The Record of Proceedings is intact and has been filed.

I do not agree that the passage of time has resulted in prejudice on the part of the respondent. [ 21 ] I turn to the justice of the case and the merits. [ 22 ] Mr. Mungeni has not occupied a rent subsidy unit since April 2015 and not occupied a unit in that building since December 2015. If his Notice of Application is pursued, the most that could be accomplished is that the decision effective March 31, 2015 by the Review Board would be set aside.

With the extraordinary lapse of time since that termination decision was made, now almost two years, it is unlikely that the Divisional Court would issue an order of mandamus directing Housing Connections to reinstate his subsidy. The most that would be accomplished is that he would start from scratch in applying for a rent subsidy. That does not warrant the continuation of this Application. [ 23 ] I am not satisfied with Mr. Mungeni’s explanation for the delay. I am not satisfied that the merits of the Notice of Application and the justice of the case warrant the continuation of the proceeding.

The applicant has not met the burden to set aside the order by the Registrar for dismissal for delay and the motion to set aside the order for dismissal for delay is dismissed. [ 24 ] I have endorsed the back of Mr. Mungeni’s Notice of Motion record as follows: “For oral reasons given, the motion to set aside the dismissal order is dismissed. No costs.” [ 25 ] The Court is grateful for the assistance of duty counsel provided by Pro Bono Ontario, Erica Richler. ___________________________ KITELEY J. Date of Reasons for Judgment: March 2, 2017

Date of Release: March 9, 2017 CITATION : Mungeni v. Housing Connections and Toronto Community Housing Corporation, 2017 ONSC 1517 DIVISIONAL COURT FILE NO.: 600/15 DATE: 20170302 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: YUMA MUNGENI Applicant – and – HOUSING CONNECTIONS AND TORONTO COMMUNITY HOUSING CORPORATION Respondent ORAL REASONS FOR JUDGMENT KITELEY J . Date of Reasons for Judgment: March 2, 2017 Date of Release: March 9, 2017