Duncan v. Oskaldowich, 2004 CanLII 4339 (ON SCDC)

COURT FILE NO.: DC-04-005406-00

DATE: 20040720

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Duncan et al and Oskaldowich

BEFORE: John Wright J.

COUNSEL: No One Appearing for the Tenants

Mark S. Trenholme, for the Landlord

E N D O R S E M E N T

1This is a motion to transfer an appeal from a decision under the Tenant Protection Act from Brampton to the Toronto Divisional Court to be heard before the Chief Justice, The Hon. Heather Forester Smith, pursuant to S. 20 (1) of the Courts of Justice Act, and for other relief.

2I have now had several motions arising out of similar circumstances: tenants go into default of rent, they are taken before the Ontario Rental Housing Tribunal, an agreement is reached or an order for the payment of arrears made, that agreement or order is ignored, an eviction order is made, and the tenant appeals that order to the Divisional Court.

3The effect of that appeal is an automatic stay of the order under appeal. Pending the appeal the tenant not only does not pay the arrears which generated the order in the first place, but does not pay the ongoing rent, in effect getting rent-free accommodation for the time up to appeal. In this case nothing has been paid since April 2004. In addition the tribunal was satisfied that substantial damage had been occasioned to the premises by the tenant. No Sitting of the Divisional Court is scheduled for Brampton until next year.

4Has the landlord no remedy in these circumstances?

5R63.01(1) states:

(1) The delivery of a notice of appeal from an interlocutory or final order stays, until disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.

(3) The delivery of a notice of appeal from an interlocutory or final order made under the Tenant’s Protection Act, 1997 stays, until the disposition of the appeal, any provision of the order declaring a tenancy agreement terminated or evicting a person.

(5) A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by subrule (1), (3) or (4) does not apply.

6I am a judge of the court to which the appeal has been taken.

7It seems to me that whatever the merits of the order appealed from, there is no justification for the tenant not paying ongoing rent.

8An order will issue as asked.

9An order will also issue, ex proprio motu, that the tenant shall pay within 15 days of service of a copy of this order upon one of them the arrears of rent which have accrued during June and the months following and shall keep the ongoing rent payments current, failing which the landlord may file an affidavit setting out the default. Upon that affidavit being filed together with proof of service of this order the stay of the order under appeal is lifted and the landlord may enforce it in all its particulars including rent subsequently accrued.

10Since this second order is in the nature of an ex parte order as far as the tenants are concerned they may apply to a judge of this court in Brampton to set it aside upon notice notwithstanding that the appeal has been referred to the Divisional Court in Toronto.

John Wright J.