No appeal for tenant who continues to live rent-free: Ontario Court of Appeal

The Ontario Court of Appeal has refused to allow a tenant to file an appeal, after he withheld rent and refused to leave the premises despite an order to end the tenancy agreement.

In Faraone v. Hitti, 2023 ONCA 512, Ronald Hitti is a tenant under a residential lease in a property owned by Raymond Faraone and Julie Faraone. Hitti leased the premises for $8,400 monthly and later raised it to $8,500. His mother, brother, and a corporation under Hitti's control were also named tenants on the lease, but only Hitti resided in the leased premises.

Hitti began withholding rent in April 2021 and has paid no rent since February 2022. The lessors brought an application to end the tenancy agreement and obtain rent arrears. The court ordered to set aside the tenancy agreement and directed the tenants to give up possession of the leased premises.

Hitti attempted to appeal the order to the divisional court, to the superior court, and finally to the court of appeal, where Hitti brought a motion for an extension of time to file a notice of appeal. The court of appeal listed the factors to consider when determining whether to grant an extension of time:

1. whether the moving party formed an intention to appeal within the relevant period;
2. the length of, and explanation for, the delay;
3. whether the responding party would suffer prejudice as a result of the delay; and
4. the merits of the proposed appeal.

The appeal court stressed that the overarching principle is whether the case's justice requires the extension to be granted.

The court was satisfied that Hitti had the requisite intention to appeal and maintained it throughout. The court was also convinced by Hitti's explanation for the delay in filing a notice of appeal. However, the court found that "the justice of the case weighs against granting the extension of time."

The court considered Hitti's conduct, particularly his late filed materials, which the application judge found to be a "blatant delay tactic to enable him to continue living rent-free in the property." The application judge also found that Hitti had advanced no reasonable basis to reside in the property or resist the responding parties' lawful termination notices.

The court noted that Hitti remained in possession of the leased premises without paying any rent despite the court's order to set aside the tenancy agreement. The court emphasized that his conduct is also a factor for consideration in the justice of the case, and the court found that it weighed strongly against granting him an extension of time to appeal.