COURT FILE NO.: 395/07
DATE: 20090908
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
D. FRANCIS
Appellant
- and -
TORONTO COMMUNITY HOUSING CORPORATION AND EGYA SANGMUAH, ALAN MERVIN, MEMBERS, LANDLORD AND TENANT BOARD
Respondents
Joseph Kary, for the Appellant
Orna Raubfogel, for the Respondent, Toronto Community Housing Corporation
HEARD at Toronto: September 8, 2009
JANET WILSON J.:
[1] The request for a stay of the eviction of the applicant, D. Francis, is dismissed. The landlord may proceed with any steps for eviction.
[2] This matter came before the court three weeks ago. I conclude that there is no change in circumstances since the matter was dealt with by Bellamy J. on August 11, 2009. Hence, as a single judge, I do not have jurisdiction to deal with this matter. In the alternative, the application is dismissed on its merits.
[3] Bellamy J. had previously granted a stay in 2008 of the eviction order pending an appeal from an order refusing to set aside the dismissal of the registrar for delay, on the condition that the appellant would pay the ongoing rent on time. The tenant failed to do so and on August 11, 2009, Bellamy J. lifted the stay. Her findings with respect to the conduct of the appellant are cogent:
Ms. Francis has demonstrated that she is not prepared to consider herself bound by court orders. All she needed to do to comply with my order was to pay her rent and to pay it on time. Right from the beginning, she did not pay it on time. Once she was seven days late. The next time she was twenty-seven days late. On both these occasions, the landlord was within its rights to bring the motion it now brings. It didn’t. This was an act of kindness on the landlord’s part which, in my view, Ms. Francis has now abused by not paying any rent at all for five full months. Only when faced with the confirmed reality of today’s motion did she pay any money towards her rent.
[4] Bellamy J. notes that the landlord now has accrued arrears in excess of $30,000.00.
[5] The appellant suggests that there is a material change in circumstances from the date of Bellamy J.’s order to today’s date. I disagree for the following reasons:
The fact that the appellant has paid September rent does not create “a history of payment” as suggested by counsel, constituting a material change in the circumstances.
Bellamy J. was aware that the appellant had qualified for disability payments. This fact is not new.
Bellamy J. was also aware that the motion material seeking an extension of time to appeal from the decision of Swinton J. rendered November 4, 2008, had been served. The fact that the parties now have a specific court date for the appeal from the dismissal of the request for the extension of time is not a material change in circumstances.
[7] In my view, I do not have jurisdiction to deal with a further request for a stay as the matter was dealt with by this Court three weeks ago and there has been no material change in circumstances. The appellant has not appealed from the order of Bellamy, J. and counsel concedes that the order when made was correct.
[8] In the alternative, even if I have jurisdiction to grant a stay, in my view, a stay would not be appropriate on the merits.
[9] I agree with the findings of Bellamy J. It appears clear that the appellant will do whatever is necessary to avoid eviction by paying minimal amounts of rent only at strategic moments when threatened with court proceedings.
[10] The applicant has failed to meet the test warranting a stay of proceedings. There is significant prejudice to the respondent to allow yet another court proceeding in this long outstanding matter. The balance of convenience clearly favours the respondent. There appears to be no merit to the appeal for the extension of time from the dismissal of the appeal for delay.
[11] For these reasons, the application for a stay is dismissed. The landlord, although entitled to costs, is not seeking costs.
JANET WILSON J.
Released: September 15, 2009
COURT FILE NO.: 395/07
DATE: 20090908
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
D. FRANCIS
Appellant
- and -
TORONTO COMMUNITY HOUSING CORPORATION AND EGYA SANGMUAH, ALAN MERVIN, MEMBERS, LANDLORD AND TENANT BOARD
Respondents
REASONS FOR JUDGMENT
JANET WILSON J.
Released: September 15, 2009