Court File and Parties

COURT FILE NO.: 242/06

DATE: 20060601

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: City Park Co-operative Apartments Inc. and Susan Becker

BEFORE: Justice Epstein

COUNSEL: Bruce D. Woodrow, for the Moving Party, City Park Susan Becker, in person, responding

HEARD: May 31, 2006

Endorsement

EPSTEIN J.

[1] The moving party, City Park Co-operative Apartments Inc. seeks to quash this appeal or lift the stay of enforcement of the writ of possession ordered by McMahon J. on February 9, 2006. The motion is based on the long history of this matter that counsel for the Co-op submits clearly indicates that the appeal is without merit. In the very least, the court, in all of the circumstances ought to exercise its discretion to lift the stay.

[2] Ms. Becker’s submissions focussed, for the most part, on the hardship that eviction would cause her in light of the challenges she faces by reason of her disabilities and economic disadvantage.

[3] I agree with Mr. Woodrow that the history is long and sad; sad for Ms. Becker and for the members of the Co-op.

[4] I do not propose to review the chronology in detail. In summary, the following has taken place with respect to Ms. Becker’s relationship as a member of the Co-op.

[5] On August 10, 2004 the Co-op board of directors decided to evict Ms. Becker because of alleged “serious and repeated threats and disturbances of other residents.” Ms. Becker appealed to a general meeting and on September 18, 2004 the board’s decision was upheld. Ms. Becker brought an application for judicial review to quash these decisions. The Divisional Court quashed that application on December 15, 2004.

[6] The Co-op then brought an application to enforce the eviction decision. Ms. Becker defended this proceeding primarily on the basis that she is disabled and that the Co-op failed to accommodate her disability. The matter was heard by McMahon J. On April 29, 2005 he delivered lengthy reasons in which he terminated Ms. Becker’s membership and occupancy rights and ordered a writ of possession, not to be enforced before July 1, 2005. McMahon J. also awarded costs in favour of the Co-op fixed in the amount of $35,000.

[7] Ms. Becker appealed McMahon J.’s decision to the Divisional Court. In an endorsement dated January 20, 2006, the appeal was dismissed. The Divisional Court held that the impact on other residents was a proper consideration and McMahon J. had applied the proper test. Costs were awarded to the Co-op in the amount of $5,000.

[8] A writ of possession was issued on February 9, 2006. On February 21 Ms. Becker made a complaint to the Human Rights Commission. She sought a stay of enforcement of the writ pending the resolution of her complaint. Cameron J. granted a temporary stay pending proper service on the Co-op. Belobaba J. heard the stay motion on May 11, 2006 at which time he dismissed the motion and lifted the stay.

[9] Ms. Becker then brought another motion for a stay. C. Campbell J. dismissed that motion on May 23, 2006.

[10] That same day Ms. Becker delivered a notice of appeal of the order of Belobaba J.

[11] Ms. Becker was represented by counsel in each of these proceedings and hearings. None of the cost awards have been paid.

[12] It is against this background that the Co-op brings this motion to quash the appeal or to lift the stay pending appeal.

[13] For the following reasons, I have decided to quash the appeal.

[14] First, I agree with Mr. Woodrow that the appeal is without merit. There is nothing before me to suggest that Belobaba J. was anything but entirely justified in concluding that, in these circumstances, a stay is not appropriate. The complaint to the Commission is based on the same grounds and advances the same arguments as have already been considered by McMahon J. as affirmed by the Divisional Court. There is no known authority in support of the proposition that a decision of the Superiour Court of Justice should be stayed to allow the same argument to be made before an Inferiour Tribunal. Furthermore, there is no reason to question Belobaba J.’s conclusion that Ms. Becker failed to meet the test to justify a stay.

[15] In addition, I see this most recent series of challenges, subsequent to the appeal to the Divisional Court of the order of McMahon J., as amounting to a collateral attack on the earlier decisions and an abuse of the process of this court.

[16] I add that in my view the order of Belobaba J. is interlocutory and Ms. Becker requires leave to appeal in any event. No leave has been sought.

[17] I return to an observation I earlier made. This matter is very sad. The decision to quash the appeal carries with it enforcement of the eviction order granted by McMahon J. over a year ago. The eviction of Ms. Becker will create a hardship on her and she may conclude she did not get the “gentle court” she requested. However, I am obliged to consider the interests of all parties and to comply with the governing law. In the circumstances here, while I have every sympathy for Ms. Becker, I see no alternative but to quash the appeal.

[18] I would add that even if I decided not to quash the appeal I would have exercised my discretion to lift the stay of the eviction order in light of the history of this matter and the length of time it is anticipated the matter will take before the Human Rights Commission.

[19] The appeal is quashed. The execution of the writ of possession will not be enforced until July 1, 2006. If the parties are unable to resolve costs, written submissions may be made within 15 days.

June 1, 2006 ________________________