Request to Extend Time (LTB)

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.