Fiala v. Hamilton, 2008 ONCA 784
COURT OF APPEAL FOR ONTARIO
DOHERTY J.A.
BETWEEN
Olga Fiala, In Her Capacity As Executrix To The Estate Of Julius Fiala
Respondents (Plaintiffs)
and
Andrew Louis Hamilton, also known as Louis Hamilton, also known as Andre Hamilton, Lola Hamilton also known as Lola Hami, Kenneth James and James & Associates
Appellants (Defendants)
Granville Cadogan for the appellants
Marlon M. Roefe for the respondents
Heard: November 19, 2008
ENDORSEMENT
1At the conclusion of oral argument, I dismissed the motion with reasons to follow. These are those reasons.
2The history of the litigation can be summarized as follows. In February 2008, the plaintiffs (respondents) obtained a default judgment granting them possession of the property in dispute. The plaintiffs alleged that the property, a residence, was owned by the estate and the defendants (appellants) were unlawfully living there free of charge. They had apparently taken up residence there while Mr. Fiala was alive and would not leave when asked to do so by his daughter after his death. The plaintiffs obtained a writ of possession on March 31, 2008.
3The defendants moved to set aside the default judgment and the writ of possession. On July 23, 2008, Langdon J. adjourned the motion on terms. These terms required the defendants to make certain monthly payments and to pay certain expenses referable to the property. In the ensuing months, the defendants did not comply with this order, although they did make the required payment in August.
4For some unexplained reason, the defendants moved ex parte in August 2008 before Murray J. for a stay of the writ of possession. He granted that order.
5On September 11, 2008, the plaintiffs moved for a fresh writ of possession based on non-payment of the monies ordered by Langdon J. Corkey J. adjourned the motion to September 18, 2008 at the defendants’ request. He ordered that the defendants pay costs fixed at $2,400. Those costs have not been paid.
6On September 18, 2008, Bellegham J. made an order dismissing the defendants’ motion for a variation of the terms of the order made by Langdon J. and an order granting the plaintiffs’ motion for a fresh writ of possession.
7None of the above orders are under appeal.
8On October 8, 2008, the defendants moved ex parte for a stay of the writ of possession or alternatively for an order restoring possession of the property to them. When Quigley J. heard the motion, the defendants were no longer in possession of the property. On this motion, the defendants argued for the first time that they were in a landlord/tenant relationship with the defendants. Throughout the prior proceedings, the defendants had claimed that they were the owners of the property which had been held in trust for them first by Mr. Fiala and subsequently by his estate. Quigley J. found no merit to the claim that a landlord/tenant relationship existed and dismissed the defendants’ motion to stay enforcement of the writ of possession. This order is under appeal.
9The plaintiffs subsequently moved ex parte for an order directing the defendants to remove their personal possessions from the property. Quigley J. adjourned this motion on terms. One of the terms required the defendants to vacate the property by November 8, 2008. This order is under appeal.
10On November 13, 2008, the plaintiffs brought the motion initially heard by Quigley J. back on with notice to the defendants. The defendants had not removed their personal property from the residence. O’Connor J. ordered that the contents of the residence were declared abandoned and that the plaintiffs could seize and dispose of those contents. He stayed the order until November 20, 2008, presumably to give the defendants one more opportunity to remove their personal property. The order of O’Connor J. is not under appeal. In the course of oral argument, it became clear that the defendants are in fact seeking a stay of that order as well. Although this court has no jurisdiction to stay an order that is not under appeal, I will proceed on the basis that, if necessary, the defendants would file a further notice of appeal from the order of O’Connor J.
11On this motion, the defendants seek:
an order that possession of the premises be immediately returned to them; and
an order staying any further action by the plaintiffs in respect of the property.
12The relief sought goes far beyond a stay of the orders under appeal. The defendants seek a mandatory injunction restoring possession of the property to them. They have been out of the residence since October 8, 2008, before the orders under appeal were made. I question whether I have the jurisdiction to make the order requested by the defendants. I need not decide the jurisdictional question, however, as I am satisfied that the motion fails on its merits even if I do have the requisite jurisdiction.
13In their notice of a motion, the defendants suggest that the orders under appeal are automatically stayed by virtue of rule 63.01(3). I disagree. The orders under appeal were not made under the Tenant Protection Act 1997 and were not orders “declaring a tenancy agreement terminated or evicting a person”. The orders were made in the context of the enforcement of a judgment granting the plaintiffs possession of the property.
14The defendants also ask the court to exercise its discretion and stay the orders under appeal (and the order of O’Connor J.) pursuant to rule 63.02(1). The three-pronged test used in exercising the discretion to stay an order pending appeal is well known. The defendants must satisfy me that there is a serious issue to be decided on the appeal, that immediate compliance with the order under appeal would cause irreparable harm to the defendants and that the balance of convenience favours a stay.
15The defendants have not convinced me that they has a serious issue to be addressed on the appeal. In my view, in the context of an appeal, a “serious issue” is a ground of appeal that has a reasonable prospect of success. Certainly, the defendants need not convince me they will win the appeal, or even that they will probably win the appeal. They must, however, satisfy me that they have some reasonable prospect of success.
16The only argument made by counsel before me is based on the contention that the defendants were in a landlord/tenant relationship with the plaintiffs and that consequently the Superior Court had no jurisdiction to make the orders it did. Counsel also submits that the plaintiffs have not complied with any of the requirements of the Residential Tenancies Act relating to the eviction of residential tenants. The appellants rely on a notice of eviction apparently served on them in August 2008 by Ms. Fiala as proof of the landlord/tenant relationship.
17Quigley J. rejected, in strong terms, the assertion that the appellants were in a landlord/tenant relationship with the respondents. He observed that until October 2008, the appellants had insisted that they were owners of the property. The material before Quigley J. offers no explanation for this radical change in position. Indeed, the claim that a landlord/tenant relationship exists is based entirely on a single sentence in the affidavit of Andrew Louis Hamilton. Quigley J. was satisfied that the defendants’ attempt to assert a landlord/tenant relationship was a last ditch effort to avoid enforcement of the writ of possession. In his view, it had no air of reality.
18Despite counsel’s submissions, I can see no reasonable possibility that counsel could convince this court that Quigley J. erred in rejecting the defendants’ attempt to recast the nature of the relationship to avoid enforcement of the writ of possession.
19The defendants did not clear the first of the three hurdles standing between them and the relief they seek on this motion. Consequently, I dismissed the motion. As indicated in the endorsement, the plaintiffs are entitled to their costs fixed at $1,500, inclusive of disbursements and GST.
“Doherty J.A.”
