COURT FILE NO.: 59/08

DATE: 20080307

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JAMES FALCONER

Tenant (Appellant)

• and -

THE MANUFACTURERS LIFE INSURANCE COMPANY

Landlord (Respondent)

Robert G. Doumani, for the Landlord

HEARD at Toronto: March 4 and 7, 2008

reasons for decision

CUMMING J.:

The Motion

1The Respondent Landlord moves under s. 134 (3) of the Courts of Justice Act to quash the Tenant’s appeal of Orders TSL-07860 and TSL -07860VO of the Landlord and Tenant Board (the “Board”) and lift the certificate of stay to evict him from his residential premises.

Background to the timing of the hearing

2The Respondent Landlord’s motion to quash the appeal of the Tenant, James Falconer, and to lift the certificate of stay, was initially scheduled for 9:00 am Monday, March 3, 2008. The Tenant advised the Court staff the morning of February 29, 2008 that on the advice of his doctor it would be best for medical reasons to attend at an afternoon hearing. A note dated February 28, 2008 from Dr. Heikki Ylanko recommended that any hearing be in the afternoon. The Court staff then advised Mr. Falconer that the hearing would be rescheduled for Monday, March 3, 2008 at 3:00pm to convenience him.

3The Tenant then advised he had to attend at the hospital that afternoon at 3:00pm. The hearing was then rescheduled for Tuesday, March 4, 2008 at 2:30 pm. to convenience Mr. Falconer.

4Counsel for the Landlord faxed a letter March 3, 2008 at 3:15 pm. objecting to an adjournment and reviewing the history of non-appearances and claimed medical problems on the part of Mr. Falconer.

5Mr. Falconer then advised the Court staff he could not be available until Friday, March 7, 2008 in the afternoon.

6A brief note faxed by Dr. Lawrence Klotz of Sunnybrook Hospital on March 3 concluded with his opinion “…that Mr. Falconer must not engage in any meeting or matters of a business or legal nature at this time, until I have reviewed the findings of his condition next week.”

7Mr. Falconer did not appear for the hearing scheduled for 2:30 pm March 4, 2008. Affidavits of Patrick Harrington dated February 29 and March 4, 2008 questioned the truthfulness of the claimed inability to attend for medical reasons. An Order was signed dated March 4, 2008 adjourning the hearing to Friday March 7, 2008 at 2:30 pm on a peremptory basis to Mr. Falconer and allowing Dr. Klotz to be examined as a witness in the interim.

8Upon being advised of the Order, Dr. Klotz responded by letter to counsel for the Landlord dated March 5, 2008:

“Please be advised that Mr. James Falconer is medically capable of appearing in court on Friday March 7, 2008. There are no tests or other procedures scheduled which would interfere with this.”

9Mr. Falconer has sent a memo to the Trial Coordinator by fax dated March 6, 2008 at 12:49 pm. stating that given Dr. Klotz’s letter of March 3, 2008 (now superceded by Dr. Klotz’s letter of March 5, 2008) he would not be attending the hearing March 7, but could make himself available Thursday, March 13, 2008. Mr. Falconer made no reference to Dr. Klotz’s letter of March 5, 2008.

10It is to be noted that none of Mr. Falconer’s faxes in this matter contain a sender’s fax number.

11The hearing of today, March 7, 2008 is on a peremptory basis. Mr. Falconer has been advised by the Trial Coordinator as to the meaning of “peremptory” and that it is mandatory that he appear. He is not present.

12The Landlord files today an affidavit of Emilio Hernandez which establishes that he attended at Mr. Falconer’s residence March 5, 2008, and receiving no response to his knock, left under the door inter alia my Order dated March 4, 2008, and the letter from Aird & Berlis dated March 5, 2008 which had attached to it the March 5, 2008 letter of Dr. Klotz.

13Given the history of this matter, I find there is no good reason for Mr. Falconer not attending today’s hearing and accordingly, the hearing has proceeded, notwithstanding he is not present.

The matter of service of the motion record

14The affidavits of Emilio Hernandez and Dylan Kesper set forth their several abortive attempts to personally serve the Tenant, James Falconer, with the Landlord’s motion record. On the basis of this evidence, I find that the Tenant was trying to avoid personal service. The Landlord was justified in serving the Tenant by placing a copy under the Tenant’s door February 28, 2008 in accordance with Rule 5(1)(c) of the Board’s Rules of Practice. It is apparent that Mr. Falconer was well aware of the motion record by February 27, 2008 as he faxed a request for hearing recording February 27 at 12:39 pm.

15I find that notwithstanding he was attempting to avoid service he was in fact served.

Analysis

16The Landlord’s affiant, Patrick J. Harrington, sets forth the history of this matter in his affidavit in the Motion Record of the Landlord. The Tenant is a month to month tenant, residing in the rental unit, being unit 1519, 44 Charles Street West, Toronto, since December 1, 2006. Apart from the first month’s rent he has paid rent only in response to Court orders. He now owes arrears of $11,472.67 for the period from October 1, 2007 to February 29, 2008.

17The Board had denied (TSL-06996-RV) a request by Mr. Falconer to review Eviction Order TSL-06996 dated November 29, 2007. The Landlord was granted its motion for the Eviction Order on the basis of persistent late payment of rent.

18A further Eviction Order, No. TSL-07860, was obtained by the Landlord dated December 10, 2007 for non-payment of rent for the period from October 1 to December 31, 2007. This Order allowed the Tenant to void the eviction by a payment of the rent arrears of $6,927.87. The Tenant delivered a cheque but it was dishonoured as being drawn upon a closed account.

19The Tenant brought a motion to void Eviction Order TSL-07860 which was dismissed by Order TSL-07860-VO of the Board dated February 13, 2008. The Board found that the Tenant had not complied with the terms of the Eviction Order and that no further discretion should be exercised in the Tenant’s favour.

20The Tenant appealed both Orders TSL-07860 and TSL-07860-VO by a handwritten notice of appeal the same day, February 13, 2008.

Disposition

21The Landlord moves under s. 134 (3) of the Courts of Justice Act to quash the appeal and lift the certificate of stay.

22There are no materials filed by the respondent Tenant which suggest any good reason to deny granting the motion of the Landlord. The Tenant has provided no written materials to support any basis for a dismissal of the Landlord’s motion at hand to quash his appeal. His only challenge in the communications with the Court relates to the questioned validity of service upon him of the Landlord’s motion record. That challenge has no merit.

23An appeal from a decision of the Board is only sustainable on a question of an error in law. The record before the Board sets forth that the Tenant’s only asserted defence was that he was not informed there was a problem with his cheque. The Board found that “It is the Tenant’s responsibility to ensure that payment is made.” Moreover, the Board was “not persuaded that the Tenant did not know that the one bank account that he used to pay the Landlord the rent owing was closed.” No question of law is raised on the appeal.

24The entire evidentiary record and history of this matter establishes that the Board acted reasonably and, indeed, correctly, in issuing the Eviction Order and Void Order. The saga seen in this matter evidences a Tenant, Mr. Falconer, who refuses to pay his rent and was accordingly properly made the subject of an Eviction Order. The purported appeal is manifestly devoid of any merit. The evidentiary record establishes that the Tenant’s appeal of the Orders of the Board is frivolous and that his actions amount to an abuse of process.

25For the reasons given, the Landlord’s motion is granted. The appeal is quashed and the certificate of stay is lifted. In my view, given the history and circumstances of this matter, it is proper to exercise the authority conferred under s. 210 (5) of the Residential Tenancies Act to direct the Sherriff’s Office to forthwith give possession of the premises in question.

26A submission as to costs has been made by the Landlord. A detailed bill of costs for $17,242.76 has been filed. In my view, exercising my discretion under Rule 57, costs on a substantial indemnity basis is appropriate. I fix costs, inclusive of G.S.T. and all disbursements at $15,000.00, payable by the Tenant forthwith.

27I have signed the Order attached as Annex “A” to these reasons for decision. This Order is to be issued forthwith.