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Appeals - Time - Extension to Commence (4). Ontario (Attorney General) v. $38,570 in Canadian Currency (In Rem)
In Ontario (Attorney General) v. $38,570 in Canadian Currency (In Rem) (Ont CA, 2024) the Ontario Court of Appeal considered the test for extending time to commence an appeal under the Civil Remedies Act". Here, the court considers the 'merits' element of this test:[5] Importantly, there is no apparent merit to Mr. Mohamed’s proposed appeal. Lack of merit alone can be a sufficient basis on which to deny an extension of time: Enbridge, at para. 16; Nguyen v. Economical Mutual Insurance Co., 2015 ONCA 828, at para. 13; Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 7; and Philbert v. Graham, 2022 ONCA 122, at para. 16. I come to this conclusion having recognized that the bar is relatively low, and my role on this motion is not to determine the merits of the appeal but to assess the strength of the grounds of appeal for the purpose of determining whether the appeal has so little merit that Mr. Mohamed should, in all the circumstances of this case, be deprived of his important right of appeal: Duca Community Credit Union Ltd. v. Giovannoli (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 14; and Nguyen, at para. 13. As I shall explain, this is such a case. . Ieraci v Parsons
In Ieraci v Parsons (Div Court, 2024) the Divisional Court dismissed a landlord's motion to extend time to commence an RTA s.210 appeal of an LTB "finding that ... [the LL] illegally evicted Ms. Parsons". The history of the dispute was that of a flooded basement apartment that the tenant left and the LL treated as abandoned, a legal conclusion that the LTB disagreed with.
Here the court considered (and denies) the motion to extend time to commence an appeal - unusually under the case conference RCP 50.13(6) authority - and primarily on the basis that the LL's appeal was not grounded on a question of law [which is required under RTA s.210]:[27] This is a case in which it is fair and appropriate to exercise the court’s authority under Rule 50.13 (6)(d) [SS: 'Case Conference - Powers'] of the Rules of Civil Procedure, RRO 1990, Reg 194, to decide the extension issue summarily without imposing on the parties the cost and delay of formal motion practice. The directions convening the case conference gave notice of the issues and topics to be covered. Changing the form of Mr. Ieraci’s written submissions to an affidavit and factum will not change the substance. I am prepared to treat the submissions as if they were sworn.
[28] Taking Mr. Ieraci’s submissions at their highest, and without cross-examination of Mr. Ieraci, he is unable to satisfy the requirements to obtain an extension of time to appeal the board’s decision.
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(ii) The Appeal does not raise a Question of Law
[33] As was the case with Mr. Ieraci’s request for reconsideration, his proposed appeal has no merit. Under s. 210 of the Residential Tenancies Act, 2006, this court has jurisdiction to hear only appeals on questions of law. While he has tried to pose his grounds of appeal in terms of legal issues, all his arguments contest the board’s finding of fact or mixed fact and law that Ms. Parsons did not abandon the tenancy and therefore her eviction was unlawful.
[34] The board heard Mr. Ieraci’s evidence and found that it was his renovation and not the flood that made the unit uninhabitable. He turned a repair into a three-year gutting and renovation.
[35] Even if the tenant was in arrears of rent at the time of the flood, the landlord did not act on it. Mr. Ieraci says he served a notice to terminate for non-payment of rent but he did not file it with the board to seek an order terminating the lease. Once again, he says that was due to the tenant’s abandonment. But the landlord was not free to decide that the tenant’s arrears allowed him to terminate the lease or refuse her alternative accommodation without an order of the board.
[36] Mr. Ieraci submits that Ms. Parsons abandoned the premises before he gutted them. He refers to text messages and her involvement of the police to help ensure that she had access to all of her goods to put into storage. This evidence was before the board.
[37] Mr. Ieraci submits that the scheduling of the hearing left him unable to call a witness – a Mr. Nunes.
[38] Mr. Nunes was the person hired by Mr. Ieraci to help Ms. Parsons move her goods into storage. Mr. Ieraci says that Mr. Nunes came to an earlier hearing but the hearing adjourned that day. Mr. Nunes then moved to Vancouver and Mr. Ieraci lost track of him. Mr. Ieraci has found him Mr. Nunes and proposes that Mr. Nunes give evidence to support his submission that Ms. Parsons abandoned the unit. For example, he says, Mr. Nunes helped Ms. Parsons move her bed into storage. She could not have intended to live in the unit while it was being repaired without a bed.
[39] The hearing adjourned twice at Mr. Ieraci’s request. Both adjournments were peremptory to him. There is no indication that his legal representative sought an adjournment of the second peremptory hearing to try to locate Mr. Nunes.
[40] All hearings of the board are held virtually by videoconference. The location of a witness does not affect his ability to testify as long as he has access to the internet.
[41] There is no realistic likelihood that Mr. Ieraci will obtain leave to deliver Mr. Nunes’ evidence as fresh evidence on the appeal. Fresh evidence cannot be submitted if it was available to a party at the time of the original hearing by the exercise of reasonable diligence. Neither leave to file fresh evidence nor a new hearing is available because Mr. Ieraci did not protect a witness’s evidence while facing a peremptory hearing date.
[42] In any event, the evidence proposed for Mr. Nunes is just confirmatory of Mr. Ieraci’s side of the story. The board understood Mr. Ieraci’s professed belief that Ms. Parsons abandoned the premises. It understood the timeline as the quoted paragraphs above demonstrate.
[43] Mr. Ieraci raises issues about the definition of “uninhabitable”; the fact that Ms. Parsons gained access to the premises after July 5, 2021 and therefore was not locked out; that Ms. Parsons brought the police to obtain access to her goods; and that he offered Ms. Parsons reasonable alternative accommodation.
[44] Mr. Ieraci believes that the board was wrong in finding that the unit became uninhabitable only after he gutted it and in failing to find that Ms. Parsons abandoned before that date.
[45] But there is no appeal available to this court on the issue of whether Ms. Parsons abandoned the premises. The Legislature of Ontario has told the court in s. 210 of the statute that the board has the last word on questions of fact and mixed fact and law.
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Outcome
[49] With Mr. Ieraci unable to show that he made any real effort to appeal in a timely way, with the appeal lacking merit, and an extension of time risking prejudice to Ms. Parsons, the justice of the case leads me to deny the extension sought.
[50] As is usually the case, in my view, the most important factor is the assessment of the merits of the proposed appeal. It is perfectly clear from Mr. Ieraci’s notice of appeal, his written submissions, and his oral submissions that he is dissatisfied with the board’s findings of fact and he wants a chance to re-do the hearing on better evidence. An appeal restricted to issues of law is simply not available to do that.
[51] It follows that Mr. Ieraci’s request for an extension of time to bring this appeal must be dismissed. The appeal is therefore dismissed.
[52] If she seeks costs, Ms. Parsons may deliver up to two pages of submissions and a Costs Outline by April 12, 2024. Mr. Ieraci may deliver up to two pages of submission in response by April 19, 2024. Submissions are to be copied to my Judicial Assistant by email to therese.navrotski@ontairo.ca.
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