Request to Extend Time (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-06
CLNP Page ID:	1583
Page Categories:	[Hearing Process (LTB)]
Citation:	Request to Extend Time (LTB), CLNP 1583, <3F>, retrieved on 2024-05-06
Editor:	P08916
Last Updated:	2021/08/16

Landlord and Tenant Board - Rules of Procedure

16.1 Except where an extension of time is prohibited by the RTA, the LTB may consider a request to extend or shorten time for doing anything if the request is:

a) in writing;

b) provides reasons in support of the request; and

c) filed as required by these Rules.

16.2 Absent exceptional circumstances, a request to extend time to file a:

a) landlord's motion to set aside an order made under s.74(6);

b) tenant's motion to set aside an order made under s.77(4);

c) tenant's motion to set aside an order made under s.78(6) or (7);

d) landlord's application for a determination of whether grounds for refusing consent to an assignment of a site for a mobile home are reasonable;

e) landlord's request for a review of a work order;

f) request to amend an order; and

g) request to review a decision or order must be filed together with the motion, application or request.

16.3 If an extension of time is granted where the document was not filed with the request the LTB will direct that the document be filed, and any filing fee be paid, by a specific date failing which the document will be refused.

16.4 The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:

a) the length of the delay, and the reason for it;

b) any prejudice a party may experience;

c) whether any potential prejudice may be remedied;

d) whether the request is made in good faith; and

e) any other relevant factors.

16.5 A request to extend or shorten time may be decided without requesting submissions from other parties to the application.

16.6 Where a request to extend or shorten time is denied, the requesting party may not make further requests to extend or shorten the same time requirement.

16.7 If the request to extend or shorten time is granted, the document is deemed to be received on the date on which the party filed it.

TSL-06158-19-RV (Re), 2019 CanLII 134595 (ON LTB)

Determinations:

There are serious errors in the Board’s endorsement

1. BP requests a review of the Board’s endorsement, which denies her request for an extension of time to file a set aside motion. The request to review is granted because I find that the Board’s endorsement contains three serious errors.

2. First, one of the reasons the Board denied the extension of time was because it found that BP could have filed a set aside motion earlier. However, there is no reasonable basis for this finding in the materials BP filed in support of her request. In her materials, BP claims that she only became aware of the eviction order when she discovered the sheriff’s notice taped to her unit door on June 22, 2019. BP then got legal advice and filed her request to extend time two days later.

3. BP could not reasonably be expected to know about the eviction order before June 22nd, particularly since the order was based on an ex parte application to which BP was not a party (BP is not referred to anywhere in that application). There is no information in BP’s materials to suggest that BP was or could have been aware of the eviction order before June 22nd. The fact that the Landlord gave BP a letter dated March 14, 2019, notifying her that the Tenant was terminating the tenancy effective May 15, 2019 does not stand in the place of the eviction order and deprive BP of the opportunity to challenge the order by way of a set aside motion.

4. Second, the Board also denied the extension of time based on adverse credibility findings about BP without any evidence to support them. The Board finds that BP’s claim that the Landlord intercepted her mail is not plausible. The Board also finds that BP did not make the request to extend time in good faith, but rather to strengthen her hand in negotiations with the Landlord. However, there is no information in BP’s materials to reasonably support these findings.

5. In fact, the evidence at the review hearing supports BP’s claim that the Landlord did in fact intercept her mail, or at least he prevented her from receiving her mail. The Landlord did not dispute BP’s claim that he taped her mailbox shut. In addition, the Landlord did not dispute BP’s claim that she did not receive the eviction order in the mail and that BP did not become aware of the order until the Landlord taped the sheriff’s notice to her door on June 22, 2019. In other words, the evidence at the hearing, which was consistent with the information in the Tenant’s motion materials, does not reveal any bad faith or ulterior motive on behalf of BP for filing the request to extend time. There is no basis for an adverse credibility finding against her.

6. Third, the endorsement includes a determination that BP is not “tenant” as defined by Ontario Regulation 516/06 and this appears to be part of the reasons for denying BP’s request to extend time. On its face, this finding seems to be a determination that BP either does not have standing to bring the motion or that the set aside motion will inevitably fail because BP cannot be considered a tenant. However, there is no consideration of whether BP satisfies the definition of “tenant” in section 2 of the Residential Tenancies Act, 2006 as she seems to claim in her motion materials. The endorsement also precludes the possibility that BP can bring a set aside motion based on her status as an affected party only.

The request to extend time is granted

7. Having granted the review, I also find that the Board’s endorsement dated June 25, 2019 should be cancelled and BP’s request to extend time granted.

8. In arriving at my decision to grant the extension of time, I considered the factors in Rule 16.4 of the Board’s Rules of Procedure. I am satisfied that there was a reasonable justification for BP’s delay in filing the motion as she only became aware of the Board’s eviction order after she received the sheriff’s notice on June 22, 2019. After making this discovery, BP acted quickly and prudently to obtain legal advice and file her motion and request to extend time two days later. There is no prejudice to the Landlord from the delay that cannot be remedied through for example payment of rent by BP while she occupies the rental unit or an order of costs in these proceedings. I am satisfied that BP makes this request to extend time in good faith and for no other reason. Finally, I find that the prejudice to BP of being denied the opportunity to challenge the eviction order when she is directly affected by this order outweighs the prejudice to the Landlord of having the resolution of this matter postponed.

TSL-71184-16-RV-IN-AM (Re), 2017 CanLII 142724 (ON LTB)

Determinations:

1. The Tenant has indicated to the Board that he wishes to file a request for a review of order TSL-71184-16 along with a request for a stay.

2. The Tenant has filed a request to extend time to file his review request, as he requires legal assistance to prepare his request. In his request to extend time, the Tenant indicates that he is having difficulty securing legal representation. The Tenant has not indicated how much more time he requires.

3. The Board’s rules do not, in the ordinary course, provide for an opportunity for an opposing party to make submissions with respect to a request to extend time. However, in this case it is appropriate to do so, as there is potential prejudice to the Landlord in extending a stay of the enforcement of order TSL-71184-16.

4. Until the Tenant’s request to extend time is decided, order TSL-71184-16 must be stayed to preserve the Tenant’s rights.

5. The request to extend time has not been granted yet and it is possible that it will not be granted. The Tenant should continue to make efforts to secure legal advice/representation while his request to extend time is being adjudicated.

It is ordered that:

6. Order TSL-71184-16 issued on November 6, 2017 is stayed until otherwise ordered.

7. On or before November 17, 2017, the Landlord shall serve on the Tenant and file with the Board written submissions with respect to the Tenant’s request to extend time for filing his request for a review.

8. If the Landlord does not serve or file written submissions in accordance with paragraph 7, above, the Board shall decide the Tenant’s request for an extension of time in the absence of the Landlord’s submissions.

TNT-64667-14-EXT (Re), 2015 CanLII 51511 (ON LTB)

(...)

The delay in filing the request for review is about two months. While the request to extend time indicates that Mr. E has advised his client that he was not made aware of the Tenant’s application and Notice of Hearing that were sent to his office by registered mail prior to the hearing of December 9, 2014, there is no explanation offered about why a request for review was not made within 30 days of the Board sending a copy of the order to Mr. E’s office.

The only explanation offered for the delay in making the request for review relates to the merits of the matter (the Landlord’s assertion that he was not reasonably able to participate in the hearing of December 9, 2015) which the Member is not to consider when deciding whether an extension of time is warranted.

There is, in the request to extend time, no explanation whatsoever of why the request was not made within 30 days of the Board having sent the order to the Landlord’s legal representative. The address noted by the legal representative on the request to extend time to file the request to review is the same address as the one to which the Board sent the order on January 27, 2015.

The commentary to Rule 15.6 suggests that the length of the delay is very relevant, as are the reasons that the party explains as the need for the extension.

The purpose of time limitations is to give the parties a sense of finality in the matters they bring to the Board. The prejudice to the party who has obtained a Board order if a lengthy extension of time for review is granted, is that there is no finality or certainty, and with the passage of time evidence can be lost or witnesses may no longer be available. The delay in this case is considerable, and would not be easily remedied.

In view of the failure to give an adequate explanation for the delay in requesting a review, and in view of the compliance by the Board and by the applicant with the service requirements to put the Landlord, through his representative, on notice of the hearing and of the Board order, an extension of time to file a request for review is not warranted.

NOL-19839-15-RV-SA (Re), 2015 CanLII 59714 (ON LTB)

Request to Review Refusal of Extension of Time

1. The Tenant’s legal representative stated that because the Tenant had requested a review of order NOL-18353-15 issued on March 23, 2015, which review was denied, there was confusion as to the documents received from the Board. The Tenant attended at the legal clinic on June 4th but the legal representative only noted the review order and not the ex parte order.

2. Upon receiving the Sheriff’s notice on June 9th the Tenant re-attended at the legal clinic and their set aside motion was prepared.

3. The Tenant’s set aside motion was immediately filed on their behalf by the clinic on June 10th, which was five days late.

4. The member refused the request to extend time by referring to the clinic’s knowledge of the dismissal of the request to review order NOL-18353-15 issued on March 23, 2015 and that the clinic should have contacted the Board when the Tenant attended on June 4, 2015 to confirm existence of new orders.

5. The member’s reasoning is unclear as the clinic’s retainer on behalf of the Tenant was in regard to NOL-18353-15 and without specific knowledge of the existence of the ex parte order they had no reason or authority to make such enquiries of the Board.

6. I am satisfied that although the review request has resulted in a delay in the Landlord’s entitlement to terminate the tenancy under the ex parte order the decision to not extend time for the Tenant’s set aside motion was a serious error.

7. The Tenant’s request to review is granted and the Tenant’s set aside motion will be heard.