New Issues Raised on Appeal (LTB)
|Caselaw.Ninja, Riverview Group Publishing 2021 ©|
|CLNP Page ID:||1899|
|Citation:||New Issues Raised on Appeal (LTB), CLNP 1899, <>, retrieved on 2022-10-07|
Gent v. IMH Pool III LP, 2017 ONSC 7230 (CanLII)
 This Court has jurisdiction to quash an appeal under subsection 134(3) of the Courts of Justice Act. Such relief should be granted where it is demonstrated that the appeal is devoid of merit, has no reasonable prospect of success and/or where the appeal can be said to be an abuse of process: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(3) (“CJA”); Lesyork Holdings Ltd. v. Munden Acres Ltd., 1976 CarswellOnt 300 (C.A.) at para. 2; Hornstein v. Royal Bank, 2007 CarswellOnt 2413 (Div. Ct.) at paras. 2-3, 6-7.
 I agree with the Landlord that the Tenant is attempting to raise issues in this appeal that were not the subject of the hearing before the Board, including allegations of outstanding maintenance issues and property damage. The additional relief requested and grounds for that relief ought to be struck from the Amended Notice of Appeal pursuant to r. 25.11 of the Rules. I agree with the Landlord’s position that the relief requested and grounds raised that cover matters that were not before the Board at first instance may prejudice, or delay a fair appeal of this matter, and are frankly, frivolous or vexatious and constitute an abuse of the court.
 Moreover, the general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at first instance if it had been known that the matter would be an issue on appeal: Kaiman v. Graham, 2009 ONCA 77 (C.A.) at para 18.
 In Kaiman, the Court of Appeal identified five reasons why it would be contrary to the interests of justice to entertain new arguments on an appeal before it. At least three of those five reasons are present in this case.
 First, appeals cannot be conducted without any regard for the pleadings and positions advanced at trial, or in this case, before the Board. However, in this case, only the Landlord's application concerning the non-payment of rent was before the Board; there were no materials submitted by the Tenant and, in fact, the hearing was resolved on an uncontested basis. Second, the Tenant in this appeal is alleging a breach by the Landlord of its statutory obligations under the RTA but there is no evidentiary record whatsoever to permit those allegations to be considered.
 Further, Ms. Gent has put forward no explanation why this argument was not raised at the Board. She made statements before me that she was somehow mislead in the proceedings before the Board, or by the Landlord's representative and while acknowledging she consented, says she did not consent to being evicted if she failed to pay the rental arrears. However, the evidence before me shows that the parties made a joint submission to the Board Member of the terms upon which they agreed to resolve the application.
 Moreover, the Board Member specifically inquired into Ms. Gent’s understanding of the terms of the settlement arrangement and the Order he would issue on consent. He asked if both parties had agreed to those terms and Ms. Gent confirmed that they had. He asked if Ms. Gent understood the terms of the consent order and if she understood the consequences if she did not comply. Again, Ms. Gent confirmed that she did and that she was agreeing to those terms of her own free will. On that basis, and having made that inquiry, Board Member Randhawa advised Mr. Anderson and Ms. Gent that he would issue the order in accordance with those terms.