COURT FILE NO.: DC-08-0058-00
DATE: 20090217
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dragan MILENKOVIC and Slobodanka MILENKOVIC
(Respondents in Appeal)
- and -
Madad KENYI, Steve MAPHANGO and Faustino SSERWADDA
(Appellants)
BEFORE: Daley J.
COUNSEL: David S. Strashin, for the Respondents
The Appellants are self-represented
HEARD: January 30, 2009
E N D O R S E M E N T
[1] The landlord in this appeal moves to quash the tenants’ appeal and vacate the stay order issued by the Landlord and Tenant Board. The landlord also seeks to have the tenants evicted.
[2] The Landlord and Tenant Board granted the landlords’ application in July of 2008. The tenants have appealed from that order.
[3] On October 10, 2008, the landlords moved to quash the tenants’ appeal. van Rensburg J. granted an order requiring the tenants to pay the outstanding rent which had been directed to be paid in accordance with the order of Dunn J. for the months of September and October 2008.
[4] It was also ordered that the tenants continue to pay rent owing at the rate of $950 per month due on the first day of each and every month. This order also provided that, in the event any term or condition of the order was not complied with by the tenants, the landlords were at liberty to move for an order quashing the tenants’ appeal on notice to the tenants.
[5] In support of the landlords’ motion, an affidavit dated January 6, 2009 was filed by Slobodanka Milenkovic. In that affidavit she deposed to the fact that the tenants had failed to comply with the order of van Rensburg J. in that they had failed to pay rent for either of the months of December 2008 or January 2009.
[6] During the course of submissions in this motion, counsel for the landlords advised that in fact the sum of approximately $300 had been paid by one of the tenants in December 2008.
[7] At the outset of this motion, I reminded the tenants, who are all self represented, that they were each entitled to make submissions on their own behalf. The tenant Steve Maphango acted as the spokesperson for the tenants, however, I considered his submissions as his alone and the other tenants were given an opportunity to make their own submissions in response to the landlords’ motion.
[8] Unfortunately, Mr. Maphango was most evasive and vague in his submissions. I alerted him to the fact, on several occasions, that none of the tenants had filed any affidavit evidence in response to the landlords’ motion. He proposed to file with the court several documents which were not included in an affidavit, some of which, I understand, had not been provided to counsel for the landlords. I explained to Mr. Maphango that this material could not simply be filed and that an affidavit was the only means by which this evidence could be presented to the court.
[9] Mr. Maphango also brought an ex parte motion on January 29 seeking leave of the court, on an urgent basis, to allow for the filing of material upon the return of this motion. On the return of his ex parte motion, the court simply granted him leave to request permission to file material on this motion.
[10] No affidavit material or evidence was offered by the tenants in response to the landlords’ motion. However, as noted, I was advised by counsel that the affidavit evidence offered on behalf of the landlords was inaccurate in that some rent monies were tendered in December 2008 by one of the tenants.
[11] While there was no evidence offered on the merits of this motion by the respondents Madad Kenyi and Faustino Sserwadda, both of these tenants indicated an intention and an ability to pay the outstanding rent in compliance with the order of van Rensburg J.
[12] Unfortunately, it seems that these other tenants have been misled and counselled by Mr. Maphango as to the manner as to how they should deal with there obligations under the terms of that court order.
[13] The landlords move pursuant to s. 134 of the Courts of Justice Act. Subsection (3) of that section provides that a court, to which an appeal was taken, may "in a proper case, quash the appeal".
[14] While no affidavit evidence was offered by the self-represented tenants, it was submitted on behalf of each of them that they wish to pay the outstanding rent obligations under the order of van Rensburg J., pending the outcome of their appeal before this court.
[15] I am concerned by the inaccuracy of the affidavit material filed on behalf of the landlords in that it failed to disclose that there were some monies paid by the tenants to the landlords in December 2008. While I recognize that that payment does not satisfy the requirements of the order of van Rensburg J., I feel this is an appropriate case to exercise my discretion and to deny the request that the tenants appeal be quashed.
[16] However, given the history of this matter and the fact that although the tenants indicate they wish to pay the arrears and rent owing on a month-to-month basis pending their appeal, as they have not complied with the order of van Rensburg J., I am prepared to only extend their opportunity to make payment for a very short period of time as outlined below.
[17] The landlords in their notice of motion, as alternative relief, seek an order that the tenants pay all of the arrears of rent and rent on an ongoing basis at $950 per month until the disposition of the appeal. It is also requested that the tenants perfect their appeal forthwith.
[18] I conclude that it is appropriate that an order issue at this time in the following terms:
(1) The tenants shall pay all rent outstanding in the sum of $950 per month for the months of December 2008, January and February 2009. The tenants shall pay these monies to the landlords’ solicitor in trust, namely, to David S. Strashin, in cash or by certified cheque. These monies are to be paid to the solicitor on or before February 27, 2009.
(2) The tenants shall pay to the landlords, on the first day of each and every month, the rent owing in the sum of $950, payable by cash or certified cheque. The rent shall continue to be paid by the tenants to the landlords pending the hearing of the appeal in this matter.
(3) In the event the tenants fail to make any of the payments provided for, the landlords may move without notice to the tenants for an order quashing the tenants’ appeal and directing Sheriff of Peel to enforce the eviction order of the Landlord and Tenant Board, issued on July 11, 2008.
[19] Having heard submissions with respect to costs at the conclusion of the argument of this matter, I award costs to the landlords payable by the tenants in the sum of $750.
___________________________
Daley J.
DATE: February 17, 2009
COURT FILE NO.: DC-08-0058-00
DATE: 20090217
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dragan MILENKOVIC and Slobodanka MILENKOVIC
- and -
Madad KENYI, Steve MAPHANGO and Faustino SSERWADDA
BEFORE: Daley J.
COUNSEL: David S. Strashin, for the Respondents
The Appellants are self-represented
ENDORSEMENT
Daley J.
DATE: February 17, 2009