2023 ONSC 5801, 2023 ONSC 5801

CITATION : Lindsay v. Ecuhome Corporation, 2023 ONSC 5801 DIVISIONAL COURT FILE NO.: 434/23 DATE: 20231020 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: MARK ANTHONY LINDSAY , Moving Party/Proposed Appellant AND: ECUHOME corporation , Respondent BEFORE: Matheson J. COUNSEL: Self-Represented Moving Party/ Proposed Appellant Douglas H. Levitt and Spencer F.

Toole , for the Respondent HEARD at Toronto: October 18, 2023, by Video-conference ENDORSEMENT [ 1 ] The moving party tenant seeks extensions of time to challenge three orders of the Landlord and Tenant Board (“LTB”), as follows: LTB orders dated April 7, 2022 and May 18, 2022 (the “2022 LTB orders”) and LTB order dated May 18, 2023 (the “LTB eviction order’). The moving party also seeks interim stays of those orders. [ 2 ] The rental unit is in a rental complex providing affordable housing.

The moving party tenant has had a rent-geared-to- income (“RGI”) subsidy, which is part of the context to this dispute. [ 3 ] By way of brief background, in late 2020, the moving party tenant’s RGI subsidy was decreased. In turn, his payment with respect to rent increased. Shortly after that change, the tenant brought an application at the LTB making allegations of harassment against the respondent landlord. The application was unsuccessful, as was a subsequent request to review as set out in the 2022 LTB orders. [ 4 ] As of January 2023, the tenant stopped paying rent.

The respondent landlord commenced eviction proceedings, resulting in the LTB eviction order terminating the tenancy. [ 5 ] In the LTB eviction order reasons for decision, the LTB recognized that it did not have jurisdiction over the tenant’s concerns about the calculation of his RGI rent subsidy. The LTB also noted that the tenant had not filed the reviews of the RGI calculations that were available to him under the separate regime that did address RGI calculations. [ 6 ] The LTB found, based upon the rent of $470/month, that there were rental arrears of $8,293 as of April 30, 2023.

The tenant was given an opportunity to pay the arrears and remain in the rental premises, failing which the tenancy was terminated and the tenant had to move out. The tenant did not pay the arrears, did not vacate, and did not commence an appeal within the required 30-day time period. [ 7 ] The tenant served a notice of appeal and a notice of application for judicial review challenging the LTB eviction order on July 21, 2023, just before the date the Sheriff was scheduled to attend and enforce the eviction.

The tenant later clarified that he intended to include the 2022 LTB orders in his appeal/application as well. [ 8 ] The challenge to the LTB eviction order was therefore about a month late, and the challenge to the 2022 LTB orders was more than a year late. The tenant therefore brought this motion for an extension of time. [ 9 ] The tenant did not deliver his motion materials in a timely way. Ultimately, he did not deliver a motion record or factum at all but uploaded over one hundred individual documents to CaseLines.

Those documents did not include an affidavit or a transcript from any of the LTB hearings that give rise to this motion. [ 10 ] This motion was scheduled to be heard on October 11 th but was adjourned until October 18, 2023, to give the self-represented tenant more time to prepare. [ 11 ] The relevant considerations on a motion to extend time are not disputed.

For the motion to extend time to appeal, the Court will consider whether there was a bona fide intention to appeal within the appeal period, the length of, and explanation for the delay, any prejudice to the responding party caused by or exacerbated by the delay and the merits of the proposed appeal. [ 12 ] For the motion to extend time to apply for judicial review, under s. 5(2) of the Judicial Review Procedure Act , an extension

may be granted if there are apparent grounds for relief and no substantial prejudice or hardship to the respondent: Unifor and its Local 303 v Scepter Canada Inc. , 2022 ONSC 5683 .

The Court may also consider the length of the delay and the explanation for the delay. [ 13 ] The tenant did not put forward an affidavit with evidence about any of these matters. [ 14 ] With respect to delay, the tenant submits that he intended to appeal the 2022 LTB orders but did not do so because, when the eviction application was commenced, he thought he could bring up his harassment complaints in response to the eviction application.

Since the eviction proceedings commenced about six months after the 2022 LTB orders, well after the 30-day time period, this explanation does not amount to an intention to appeal within 30 days or an explanation for the lengthy delay. The moving party/tenant also submits that he was waiting for a decision from the Human Rights Tribunal of Ontario (“HRTO”) that he believed would resolve his issues.

Yet the HRTO decision was still pending when the moving party did attempt to commence his appeal/application proceedings in July 2023. [ 15 ] With respect to the merits of the proposed appeal of the 2022 LTB orders, they were based upon findings of fact, which cannot be challenged on an appeal, and the moving party has not shown a potential error of law other than submissions about procedural fairness discussed below. [ 16 ] With respect to the merits of an appeal of the LTB eviction order, the moving party submits that the LTB was deciding his RGI rent subsidy, which was outside the LTB’s jurisdiction as set out in s. 203 of the Residential Tenancies Act .

There is another administrative regime through which the moving party could challenge the annual decision about his RGI subsidy, not through the LTB. [ 17 ] However, the adjudicator in the LTB eviction decision expressly and correctly noted that the LTB does not decide eligibility for a RGI subsidy. However, the LTB does have jurisdiction to give eviction orders based upon non-payment of rent and it did so in the eviction order.

Further, the LTB findings regarding unpaid rent are findings of fact and not the proper subject matter of an appeal, which is limited to questions of law. [ 18 ] The tenant also refers to breaches of procedural fairness. In his submissions he recounted that at the hearing of the eviction application, he was unable to access the documents that he had filed through the LTB portal and that the adjudicator had the same problem. He therefore submits that the hearing was unfair. The landlord’s evidence is that its representative assisted with access. There is no transcript.

Although the tenant’s submissions were focused on the eviction hearing he said that this complaint also applied to the 2022 hearing. [ 19 ] On the question of prejudice to the respondent landlord, the landlord has submitted that there is prejudice not only because of the substantial arrears but this is preventing it from fulfilling its mandate to provide affordable housing to other people who would benefit from the premises. [ 20 ] The above problems with the proposed appeal are not improved by considering the request for an extension of time to bring an application for judicial review.

The tenant seems to be under the impression that a judicial review would permit him to more broadly challenge issues about his RGI rent subsidy, yet a judicial review is still focused on the LTB decisions, not matters outside the LTB’s jurisdiction. Further, the Court should only exercise its discretion to hear and decide an application for judicial review (even if timely) in rare cases if there is also a statutory right of appeal: Yatar v. TD Insurance Meloche Monnex , 2022 ONCA 446 , at para. 42 .

It is not a mechanism to obtain an extension of time when the time period for a statutory appeal has passed. [ 21 ] Taking all relevant factors into account, I am not persuaded to give an extension of time for the over one-year period since the 2022 LTB orders, nor do I grant an extension of time to bring an application for judicial review from any of the LTB orders.

However, the delay in commencing the appeal from the LTB eviction order was short and, having regard for all factors, I grant an extension for that appeal. [ 22 ] Since I have granted an extension of time to appeal the LTB eviction order, there shall be an automatic stay of that order subject to further order of the Court. Further, as I noted at the hearing, the tenant must move forward with the appeal promptly and with terms, as set out below. Further, this appeal is not an opportunity for the tenant to bring forward new grievances against the landlord.

If there are issues that are appropriate for relief within the landlord tenant regime, the tenant may seek relief at the LTB. [ 23 ] The motion is therefore granted in part, with respect to the appeal of the LTB eviction order only, on the following terms: (

a) the current notice of appeal is sufficient but shall be limited to an appeal from the LTB eviction order; (

b) the tenant must promptly request the audio transcript of the LTB eviction hearing from the LTB and have a transcript prepared, provide a copy to the landlord, and upload that transcript to CaseLines as part of his appeal documents; (

c) the tenant must confirm to the respondent and the Court that he has submitted the request to the LTB for the audio recording within two weeks from today; (

d) the tenant shall pay at least $145/month toward rent both going forward and for all months that he had not already paid at least that amount, pending the determination of his appeal or further order of the Court; (

e) the parties shall submit their agreed or proposed

schedule for the exchange of the court materials for this appeal within two weeks from today, following which the Court will set the schedule; and, (

f) the respondent landlord may request that the stay of the LTB eviction order be lifted if the tenant fails to comply with these terms or any further directions of this Court. [ 24 ] Due to divided success, there shall be no order as to costs.

___________________________ Matheson J. Date: October 20, 2023