r v. Brown, 2023 ONSC 335

CITATION : Tariq v. Naz, 2023 ONSC 335 DIVISIONAL COURT FILE NO.: 212/21 DATE: 20230112 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: MUHAMMAD TARIQ v. FARHAT NAZ AND SHAYAN AKHTAR BEFORE: D.L. Corbett J. All parties self-represented HEARD: September 20, 2022 REASONS FOR DECISION [ 1 ] Mr Tariq moves for an extension of time to appeal a decision of the Landlord and Tenant Board (“LTB”) awarding him compensation of $1,450 from the respondents/landlords in respect to claims arising from his tenancy in a basement apartment at the landlord’s home.

For the reasons that follow the motion is dismissed without costs. [ 2 ] The court has the discretion to extend the time to bring an appeal: Rule 2.03 and Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 , para. 34 . The test on an extension motion is: (

a) whether the moving party formed an intention to appeal within the relevant time. (

b) the length of and explanation for the delay. (

c) prejudice to the respondent. (

d) the merits of the appeal. (

e) whether the justice of the case requires granting an extension. [ 3 ] The Board’s original decision was released on March 30, 2022.

The Board subsequently denied the moving party’s request to review the original order by decision released May 18, 2022. [ 4 ] The moving party contacted the court by email on July 4, 2022, seeking to move for leave to appeal from the LTB, and asking that he not be required to send a copy of his materials to the respondents and to “update the court within 30 days.” No basis was given for his request to proceed without notice and to defer further steps for thirty days. [ 5 ] The moving party was not required to obtain leave to appeal from the LTB. He was entitled to commence an appeal as of right.

To do this, he was required to serve his notice of appeal on adverse parties within thirty days. He had not done this when he first contacted the court on July 4, 2022. His deadline to bring the appeal expired thirty days after May 18, 2022 (ie on June 17, 2022). [ 6 ] This court treated July 4 th as the effective date of commencement of proceedings by the moving party and advised him by email on July 8, 2022: (

a) of the test for a motion for an extension; and (

b) that the period of delay he would have to address was between June 17 and July 4. This approach was favourable to the moving party: July 4 th was the first indication of an intent to appeal, but from the perspective of the respondents, the first they heard about the moving party’s intentions was when they received notice of this motion to extend the time to appeal, sometime in mid-July. Analysis [ 7 ] The period of delay in this case is not long: about 2.5 weeks. There is, however, no good explanation for this delay.

The appeal is based upon essentially the same grounds as the moving party’s request for reconsideration before the LTB. During oral argument it emerged that the moving party did not do anything about bringing an appeal until a month after the reconsideration decision, and no explanation was provided for this delay. [ 8 ] The moving party argued that his failure to meet the appeal deadline to appeal was because of disabling conditions for which he should receive accommodation from the court.

The evidence he provided in respect to this claim is a letter from Ryerson University (now Toronto Metropolitan University (“TMU”)). TMU’s letter confirms that the moving party is receiving accommodation for disability at TMU. It states that evidence of disability is on file with TMU. This information does not establish an explanation for failing to meet a deadline in this court. It does not explain the nature of the disability, the accommodation measures required, or the failure to seek accommodation prior to expiry of the appeal deadline.

It does not explain why the moving party did not even begin inquiries about how to mount an appeal until a month after the reconsideration decision. No Appeal on Issues of Fact [ 9 ] Subsection 210(1) of the Residential Tenancies Act provides that any person affected by an order of the LTB may appeal the order to this court within 30 days “but only on a question of law” [ SO 2006, c. 17, s.210(1) ]. This excludes appeals to this court on questions of fact: Sterling v. Upper Lansdowne Management , 2022 ONSC 5848 ; Carr v. Brown , 2022 ONSC 4337 , para. 6 ; Maynard v. Kerr , 2022 ONSC 4259 .

[ 10 ] The moving party’s Notice of Appeal, on its face, focuses on issues of fact. An allegation is made that the LTB made “an error in remedy”, which could, conceivably, be a question of law. However, when the Notice of Appeal is considered as a whole, it is clear that the moving party is alleging that the LTB erred in its findings of fact, and as a consequence failed to award the remedies he was seeking. No error in principle is alleged. [ 11 ] The moving party is well educated. He has Masters degrees in Engineering and in Management, both obtained in Canada. He has (an)other post-secondary degree(

s) earned in Pakistan. It was clear during oral argument that the moving party is articulate, well- educated, understands the basic distinction between questions of fact and questions of law, and has had a fair opportunity to raise an arguable error of law to ground the appeal. The LTB review decision rejected the review request on the basis that the moving party disagreed with the facts, as found by the LTB, and did not identify an error in principle in the LTB decision.

In response, the moving party pleads in the Notice of Appeal that this conclusion is not correct, but rather, his “main argument was that remedies are rejected based on incorrect information.” This is another way of saying that the moving party disagrees with the facts upon which the LTB based its decision. [ 12 ] The underlying dispute concerns the moving party’s claims for damages against the respondent landlords arising from a failed landlord and tenant relationship. The moving party’s claims below – on their face – were so overblown as to be unreasonable on their face.

For example, he claimed $40,0000 as the cost of a trip to Pakistan (for the moving party and his spouse) to obtain copies of degree certificates issued in that country – certificates he says were lost as a result of the landlords’ conduct. Even if it is assumed that the moving party had such certificates and lost them, and that the loss could be attributed to conduct of the landlords, the claim that he must personally present himself to the degree-granting institution in Pakistan to obtain substitute copies is outlandish in the extreme.

This requested remedy was described below as “fantastic” – an apt description – and the LTB found that, in any event, the underlying loss had not been proved. [ 13 ] The damages claimed below substantially exceeded the LTB’s monetary jurisdiction of $35,000. The tenancy was for a single room in the landlord’s house with a monthly rent that varied between $550 and $450 per month. It is clear from the LTB’s decision that it concluded that both sides acted badly. Ultimately the landlords evicted the tenant without due process, and the tenant found new premises in which to live three days later.

Police were present when the moving party attended to recover his property a few days after the moving party was ousted from the premises. Taking everything into account, the LTB awarded $1,430 payable by the landlords to the tenant. [ 14 ] In my view the “justice of the case” militates against granting the extension. On the LTB’s findings of fact, the damages are modest. If this had been a case in the Small Claims Court, there would be no appeal, because the damages found are less than $2,500.

While this point does not preclude an appeal from the LTB, it does reflect the Legislature’s view that matters involving modest claims should not be subject to elaborate appeal processes. From the landlords’ perspective, this dispute has been outstanding for over four years (they locked the tenant out of the premises on July 31, 2018). They tendered payment of the $1430 ordered payable by the LTB shortly after the LTB’s initial decision, and they just want to put this matter behind them.

Conclusion [ 15 ] Balancing the factors considered on a motion to extend the time to appeal, I find that the delay, while short, is not properly explained. I find that no error of law is alleged on the face of the Notice of Appeal, and none was stated during oral argument. The moving party really seeks a re-hearing of his claims, something that is not available on appeal. While there would be no prejudice to the respondents in granting the extension, as “prejudice” is understood in this context, the justice of the case weighs against granting the extension.

The moving party was wronged by the landlords when he was locked out of his rented room without due process. He found alternative accommodation within three days, and his claims for significant damages were unproven and “fantastic”. The underlying dispute was not one-sided, though not such as to justify the landlords’ improper ouster of the moving party without due process, and the damages found - $1,430 – are on their face within a range of reasonable results.

Justice weighs in favour of finality rather than further process in all the circumstances. [ 16 ] The motion for an extension of time to appeal is dismissed. The respondents incurred no out-of-pocket costs to defend the motion, and so there will be no order for costs of the motion. _______________________________ D.L. Corbett J. January 12, 2023