Exasperation and frustration barely describes the feeling that many landlord's have when a tenant exercises his or her right to file an appeal to the Divisional Court. The appeal process causes an incredible delay and takes the efficiency of the Landlord and Tenant Board and dispenses with it entirely. The strategic use of the automatic delay caused by filing an appeal is a significant problem in the Residential Landlord and Tenant Law context. In recent months we again are seeing decisions from the Divisional Court where the Judge notes that the point of the appeal was delay (which succeeded) and that the appeal was devoid of merit from the outset.
So what happens? In a typical case a landlord files an application to the Ontario Landlord and Tenant Board. That case is heard within a month or so of the application being filed. A decision is made and the tenancy is ordered terminated and the tenant is required to move out by a specified date. Within 30 days of that decision the tenant is entitled, at law, to file an appeal to the Divisional Court on a question of law alone. So, prior to the enforcement of the eviction by Sheriff, the tenant files the appeal and pursuant to the Rules of Civil Procedure, and the Statutory Powers Procedures Act, the decision of the Landlord and Tenant Board (to terminate and evict) is automatically stayed. A "stay" means that the eviction order can not be enforced until the appeal is heard.
The key to the appeal process is to understand how an appeal proceeds through the legal system/court system. Unlike the Landlord and Tenant Board process, an appeal follows the Rules set out in the Rules of Civil Procedure. There is a significant difference in procedure from the Landlord and Tenant Board to the Superior Court of Justice (Divisional Court) appeal Rules. What was rather "people" friendly in the Board process now effectively demands the involvement of lawyers with appeal experience in the Court process. I have yet to see a layperson do anything more than muddle through an Appeal and in each instance time was wasted and procedural advantages lost due to inexperience with the process.
In Eastern Ontario (Ottawa) an appeal to the Divisional Court will take a least a year if not a year and a half to be heard. There are numerous instances where the appeal will take much longer to be heard. The most important thing to understand in relation to appeals is that the time line is driven by the landlord and the tenant. The Court itself does very little to move the case along and in fact will allow an appeal to sit idle for over a year before making the slightest inquiry into the intentions of the parties.
Often, I am approached by landlords who advise that they have been waiting for the Court to send them a Notice of Hearing (like the Board process). They are surprised to learn that because the tenant has done nothing other than file a Notice of Appeal that the case is not on any trial list and that it will never be scheduled for a hearing. The Rules require a tenant to take certain steps in relation to an appeal in order to "Perfect it" and to set it down for hearing. Technically, this is supposed to be done within 30 days of filing the appeal. However, there is absolutely no penalty for not doing so and in fact an appellant can Perfect the appeal at any time prior to the appeal being dismissed for delay.
Landlords (respondents to appeals) need to force the appellant tenants to comply with the timelines in the Rules of Civil Procedure. If the timelines are not met the landlord should bring a motion to the Divisional Court to dismiss the appeal for delay. In other instances, when it is clear that the appeal is a complete fiction (no merit and just a strategic delay) it is also possible to bring a motion to dismiss the appeal as being frivolous and vexatious or alternatively for an order lifting the Stay that prevents the eviction of the tenant pursuant to the Board's order. Also, if the tenant has stopped paying rent or is behaving in a way that is inconsistent with the tenancy a respondent can bring a motion requiring payment of ongoing rent or other interlocutory relief (i.e. orders requiring the tenant to do certain things or stop doing certain things pending the hearing of the appeal).
The over-all point of this blog today is to high light the fact that Appeals to the Divisional Court are very tricky and time consuming. A non-lawyer who does not understand the process is most certainly going to make mistakes in the appeal process that will likely be harmful to their interests. Appeals require specialized knowledge and a background in Court procedures. To simply "wait" for the case to resolve itself will mean waiting for a very long time for the Court's process to eventually dismiss the appeal for delay. In the interim, if the landlord has done nothing, the entire point of the application and Order from the Landlord and Tenant Board will be subverted by the procedural delays caused by the Appeal process.
Michael K. E. Thiele
Tuesday, 2 July 2013
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