Court of Appeal for Ontario
Gillese J.A. (In Chambers)
Between
Morguard Residential Responding Party
and
David Mandel, Bruce Anelevitz, Joan Darling and Francis McGeachy Moving Parties
Counsel
Allan Rouben and Allyson Fox, for the moving parties
Robert G. Doumani and Vedran Simkic, for the responding party
Heard: February 24, 2017
Motion
Motion for a stay of the Divisional Court's order, dated February 2, 2017, with reasons provided at 2017 ONSC 387, pending disposition of the Moving Parties' application for leave to appeal from the Divisional Court's order, and, should leave be granted, pending disposition of the appeal.
Reasons for Decision
Overview
1This is a motion by David Mandel, Bruce Anelevitz, Joan Darling and Francis McGeachy (the "Moving Parties"). Morguard Residential is the responding party (the "Responding Party").
2The Moving Parties have sought leave of this court to appeal an order of the Divisional Court, dated February 2, 2017 (the "Divisional Court Order"). In the motion before the court today, the Moving Parties seek a stay of the Divisional Court Order, pending the disposition of their leave motion and, if leave is granted, pending the disposition of the appeal. Without the stay, the Responding Party is entitled to enforce the eviction orders made by the Landlord and Tenant Board (the "Board") in respect of the Moving Parties.
3For the reasons that follow, the stay motion is dismissed.
A Brief History of the Proceedings Leading to This Motion
4The Responding Party issued eviction orders against the Moving Parties dated February 24, 2014. In response, the Moving Parties sought relief against eviction from the Board.
5By order dated February 13, 2015 (the "Eviction Order"), the Board terminated the tenancies of each of the Moving Parties.
6The Moving Parties had the Eviction Order reviewed under s. 83 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Orders dated January 4, 2016 (the "s. 83 Orders") denied the Moving Parties relief from eviction.
7The Moving Parties then had the Eviction Order and the s. 83 Orders reviewed. Orders dated April 21, 2016 (the "Review Orders") denied the review.
8The Moving Parties next appealed to the Divisional Court, asking that court to set aside the various Board orders and dismiss the Responding Party's application to terminate their respective tenancies. The Divisional Court Order dismissed the Moving Parties' appeals.
9The Moving Parties have brought a motion to this court in which they seek leave to appeal the Divisional Court Order. That motion is pending.
10In the motion now before the court, the Moving Parties seek a stay of the Divisional Court Order until their leave motion to this court is decided and, if leave is granted, until the appeal is decided. The stay would have the effect of permitting them to remain in the apartments in which they currently reside.
Background Facts in Brief
11This matter arises from the demolition and redevelopment of a rental property in which the Moving Parties were tenants.
12As a condition of being granted a building permit, the Responding Party entered into an agreement with the City of Toronto (the "s. 37 Agreement") in which it agreed that once the redevelopment was completed, the Responding Party would provide the displaced tenants with replacement units in a newly constructed building at a specified rent and compensate them for moving costs. The s. 37 Agreement stipulated that the Responding Party would serve on the tenants a Ready for Occupancy Notice (the "Notice") before the replacement building was ready for occupancy. The tenant was to then fill out the Notice so that the rest of the process of returning the tenant to the replacement building could proceed.
13The Responding Party also voluntarily offered to make available to the tenants temporary relocation rental units, at a reduced rent, in other buildings that it owned. The Moving Parties each took up this offer and were relocated to units in the Colonnade in Yorkville, Toronto. They continue to occupy those units for rents below the fair market value.
14Under the tenancy agreements for the temporary relocation units, the tenants were to vacate the temporary units once the redeveloped replacement building was ready for occupancy.
15This dispute arose because the Moving Parties refused to engage in the process of vacating the temporary units and moving to the redeveloped property in accordance with the terms of the tenancy agreements. The Moving Parties maintain that the temporary relocation units were not part of the requirements imposed by the City in the s. 37 Agreement and were not temporary. They claim that the Responding Party provided them with the new units and is not entitled to terminate their tenancies or evict them.
16As the brief procedural review above indicates, the Moving Parties' claim has been rejected three times by the Board and once by the Divisional Court.
The Test for Granting a Stay
17When deciding whether to grant a stay, generally, the courts are to apply the same three-stage test as they do when deciding whether to order an interlocutory injunction: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. This test requires the court to:
make a preliminary assessment of the merits of the case to ensure that there is a serious question to be tried;
determine whether the moving party would suffer irreparable harm unless the stay were granted; and
determine which of the parties would suffer greater harm from the granting or refusal of the stay.
18Because a stay is a discretionary remedy, the court may also consider the "clean hands" doctrine when deciding whether to order the stay: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2006 CarswellOnt 9418 (C.A.), at para. 9.
Analysis
(1) The Strength of the Putative Appeal
19The Responding Party argues that the "nub" of the Moving Parties' complaint is contained in paragraph (b) of the grounds section of their leave motion. That paragraph reads as follows:
section 37(5) of the Act provides that an agreement to terminate a tenancy is void if it is entered into at the time of the tenancy agreement or as a condition of the tenancy agreement.
20I accept that is the essence of what the Moving Parties will argue, should leave be granted.
21With that in mind, my preliminary assessment of the merits of the putative appeal – which was informed by a careful review of the decisions below – is that it does not raise a serious question. As the brief procedural history set out above demonstrates, this issue has been fully and exhaustively considered – and decisively rejected – by both the Board and the Divisional Court. Their reasons are sound. Furthermore, in light of the appropriate standard of review and given the factual component to the putative appeal, those decisions are owed significant deference.
(2) No Irreparable Harm
22The Moving Parties have filed no evidence on what harm or prejudice they might suffer if the stay is not ordered. Counsel for the Moving Parties points to the fact that some of the Moving Parties are very elderly and, if the stay is not granted, that the Moving Parties will be forced to leave the apartments which have been their homes for nearly eight years. In the circumstances, he says, the harm they will suffer is obvious.
23There is nothing in the record to indicate whether the Moving Parties have attempted to obtain alternate housing or otherwise taken steps to minimize the risks or harm associated with moving from their current temporary homes.
24The Moving Parties bear the burden on the stay motion. In the absence of any evidence to support the claim of irreparable harm, I am not prepared to infer it.
25Furthermore, and in any event, if harm is suffered, as the record shows no evidence that appropriate steps were taken to ameliorate it, such harm may fairly be characterized as self-induced. In my view, self-induced harm (or the risk thereof) does not amount to irreparable harm.
(3) Balance of Convenience
26The Moving Parties have not demonstrated that they will suffer irreparable harm if the stay is not ordered. Thus, the balance of convenience cannot be in their favour.
Application of the "Clean Hands" Doctrine
27The Board found that the Moving Parties had acted in bad faith when, by refusing to vacate their residences in the Colonnade, they disregarded their obligations under the relocation plan to which each of them had agreed with the Responding Party. The Responding Party had voluntarily provided the Moving Parties with those temporary residences at a discounted rent in exchange for the Moving Parties agreeing to vacate the residences once the Responding Party's redevelopment had finished. The Divisional Court did not disturb this finding.
28As indicated above, because a stay is a discretionary remedy, the court may also consider the "clean hands" doctrine. In my view, in the circumstances of this case, the Board finding of bad faith on the part of the Moving Parties should be considered pursuant to the "clean hands" doctrine. This consideration also augurs against granting the stay.
Conclusion
29The Moving Parties have not met their burden under the three-stage test. Moreover, the Board finding of bad faith on the part of the Moving Parties militates against the exercise of the court's discretion to stay the Divisional Court Order.
Disposition
30For these reasons, the motion is dismissed with costs to the Respondent fixed at $4,860, all inclusive.
Released: March 1, 2017
"E.E. Gillese J.A."
