CITATION: Goble v. Vranjes, 2010 ONSC 2425

COURT FILE NO.: 10-DV-1591

DATE: 2010/04/23

ONTARIO

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TREVOR M. GOBLE and JOHN W. MASTERS

Appellants

• and -

CAROLE VRANJES and IVAN VRANJES

Marion E. Jackson, for the Respondents

Respondents

HEARD: April 23, 2010

REASONS FOR DECISION

Power J.

1The appellants, pursuant to a Notice of Appeal, have appealed to this Court from an order dated February 19, 2010 of the Landlord and Tenant Board made under s. 69 of the Residential Tenancies Act, 2006.

2The respondents applied to the said Board for an order to terminate the tenancy and evict the appellants “because the tenants [appellants] did not pay the rent that the tenants owe,” among other things.

3The Board made a number of determinations which I summarize as follows:

1. The tenants have not paid the total rent they were required to pay for the period from May 27, 2009 to March 14, 2010;

2. The landlords incurred charges of $100 for administration charges related to cheques tendered by or on behalf of the tenants which were returned NSF;

3. The landlords collected a rent deposit of $1,475 from the tenants and this deposit is still being held by the landlords; and

4. Interest on the rent deposit is owing to the tenants for the period from May 28, 2009 to February 2, 2010.

4Accordingly, the Board ordered that the tenants pay to the landlords the lawful monthly rent [$1,475] as it falls due and payable on the first day of each and every month, commencing on March 1st, 2010 and continuing every month thereafter until the arrears are paid in full. The Board also ordered that the tenants pay to the landlords a minimum monthly payment of $325 due with each rent payment on the first day of each month – these payments to be applied to the outstanding arrears of rent. The Board concluded its order as follows:

In the event that the tenants fail to make any of the above-indicated payments in full and on time, then the entire unpaid balance of the amount set out in this order shall become due and payable forthwith under this order. The landlords shall be entitled, at this point, to apply to the Board, no later than 30 days after a breach of this order and without any notice to the tenants, for an order terminating the tenancy immediately and evicting the tenants earlier, and for the collection of any arrears that become owing after the date of this order pursuant to s. 78 of the Residential Tenancies Act, 2006.

5The appellants delivered a Notice of Appeal in this Court with respect to the aforesaid order. Among other things they asked for the order to be varied to provide that “all future rent of $1,475 be paid to the courts or to the Landlord and Tenant Board of Ontario.”

6In the Notice of Appeal the grounds of appeal are set out as follows:

5. The adjudicator in point 2 of his determinations failed to recognize that the $100 is charges when not claimed in the previous application whereas the landlord loses their right to claim after 30 days.

6. The adjudicator in point 2 inferred that the $100 relates to NSF charges where said cheques were [sic] levied against a business account on a personal cheque and were not meant for commercial deposit. The lease is not between a person and corporation but rather person to person.

Question of Law Is the tenant responsible for service charges accrued under a commercial account when the agreement is not between persons and a business?

7. The adjudicator in point 4 determined that interest was owing to the tenants between May 28, 2009 to February 2, 2010 however did not factor that interest into any calculations nor provide any calculations to confer

Question of Law Is the tenant entitled to apply interest to amount owing in rent or rental arrears?

8. The adjudicator in point 3 of the order allowed for the landlord to file to Board after a breach without notice to the tenants for an immediate eviction.

Question of Law Is not providing the tenant notice of application seeking an eviction in violation of the Residential Tenancy Act and/or the Charter of Rights s. 8 and violates s. 210 of the RTA?

7As a result of the filing of a Notice of Appeal a Certificate of Stay of the order was issued.

8In her affidavit of April 9, 2010, Ms. Vranjes deposed as follows:

14. Given that the appellants have been behind in their rent several times since June 2009, I believe that they are attempting to fabricate issues in order to extend their residency on a rent free basis. It is my belief that the appellant’s grounds of appeal are baseless and that the appellants have failed to raise a valid error in law.

9This “belief” is justified.

10Since the filing of the appeal the appellants have made no further rent payments. A post-dated cheque provided to the respondents by the appellants for the March 2010 rent was returned “NSF”. Similarly, a post-dated cheque for April 2010 has also been returned “NSF”. These cheques have not been made good. Therefore, the appellants have effectively been living rent-free since January of this year. The respondents are suffering serious financial hardship because of the conduct of the appellants.

11In paragraph 20 of the aforesaid affidavit Ms. Vranjes deposed as follows:

20. Upon further investigation I learned that the appellants began a pattern of conduct that would leave at least four other landlords out-of-pocket and then residing rent-free for a period with each by making an appeal of an order of the Board to the Divisional Court.

Part of the relevant documentation is attached to her affidavit.

12In paragraph 21 of her affidavit she deposed as follows:

21. Mr. Goble once told me that if I went to the Board to have him evicted for non-payment of rent he would tangle the matter up in the courts for months.

13The appeal has not yet been perfected. Given the system employed in Ottawa for the hearing of appeals to the Divisional Court, it will be several months before the appeal is heard.

14Based on the foregoing evidence and on what transpired in court today, I conclude that the appellants’ conduct amounts to a “scam”.

15I find that the appeal to this Court is a vexatious one and that the respondents are sustaining serious financial harm as a result.

16In the respondents’ Notice of Motion they seek the following orders:

1. An order quashing the appeal;

2. An order to have the appellants declared vexatious litigants;

3. In the alternative, orders as follows:

(i) That the stay of the order of the Landlord and Tenant Board dated February 19, 2010, be lifted and, requiring that the appellants vacate the unit within 7 days and pay any amounts owing under the order and the lease to the respondent;

(ii) That the appellants pay into court an amount for security for costs on the appeal;

(iii) That the appeal proceed before a single Judge; and

4. The respondents seek an award of costs on this motion on a full indemnity basis.

17Notwithstanding that the motion materials were served on the appellants on April 12, 2010, the appellants filed no written materials in response to the motion. Mr. Goble did not appear on the motion; however, Mr. Masters did appear. He asked for an adjournment. I found the request for an adjournment to have no merit and I refused to grant the adjournment. In my opinion, the request for an adjournment was nothing more than a further attempt by the appellants to create an opportunity whereby they can continue to reside in the respondents’ property without paying rent. During the hearing of the motion Mr. Masters advised the Court that, in his opinion, he would not receive any justice from me and rudely vacated the courtroom. I proceeded to deal with the motion notwithstanding the absence of both appellants. I was advised by Mr. Masters that Mr. Goble was in another courtroom.

18The relief which I intend to grant in this matter is granted in my capacity as a single judge of the Divisional Court and, as well, in my capacity as a judge of the Superior Court of Justice.

19I have jurisdiction pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to find that the appellants are vexatious litigators and, as a consequence, to order that no further proceedings be instituted by them in any court with respect to appeals from the Landlord and Tenant Board. Pursuant to s. 21(3) of the Courts of Justice Act, I, as a single judge of the Divisional Court, have jurisdiction to hear and determine this motion. I exercise this jurisdiction. It would not be just and fair to the respondents/moving parties to adjourn the motion to a full panel.

20Similarly, as a single judge of the Divisional Court, I possess jurisdiction under s. 134(3) of the Courts of Justice Act to quash this appeal.

21Pursuant to rule 63.01(5) I have jurisdiction, as a single judge of the Divisional Court, to stay the appeal. However, in light of the fact that I have decided to quash this appeal, I need not exercise the jurisdiction to grant a stay. Had I decided not to quash the appeal, I certainly would have granted a stay in the circumstances.

22I have, as well, jurisdiction under rule 56.01(1)(e) to make an order for security for costs because, in my opinion, the appeal in this matter is frivolous and vexatious. However, once again, I need not make such an order because the appeal in question is quashed.

23In reaching the aforesaid conclusions I have, as well, considered the evidence of the manner in which the appellants entered into the lease with the respondents and took possession of the premises in the first place. In my opinion, their conduct at that time, is part and parcel of the scam in which the appellants are partaking. Their conduct then, and now, is clearly designed as a method of obtaining accommodation without compensation. The filing of the Notice of Appeal and its prosecution, in my opinion, constitutes deceitful malicious conduct on the part of the appellants.

24I do not possess the jurisdiction to order the appellants to vacate the premises as requested nor do I have the jurisdiction to order them to forthwith pay any arrears of rent. Those are matters that will have to be dealt with by the Landlord and Tenant Board.

25The grounds of appeal set out in the Notice of Appeal, given the history of the proceedings before the Landlord and Tenant Board, are, in my opinion, clearly frivolous. Their appeal is a weak one and a device to extend occupancy of the premises at no cost to the appellants. (See Deans v. James Garden Apartments 2005 (Ont. Div. Ct.); Eurocollection Canada v. LM Molds Concepts Inc. (1995), 1995 (ON CA), 80 O.A.C. 146; Kroma Management Ltd. v. Filaber (2006), W.L. 2131709 (Ont. Div. Ct.)).

26As aforesaid, it being devoid of merit, the appeal is quashed. (See Lesyork Holdings Ltd. V. Munden Acres Ltd. (1976), 1976 (ON CA), 13 O.R. (2d) 430 (Ont. C.A.); and Hamilton v. Szwajka, 2005 (Ont. Div. Ct.)).

27In the result, therefore, I make the following orders:

(a) The appeal is quashed. Accordingly, a stay of the appeal is unnecessary – there is now no appeal;

(b) I declare that the aforesaid appeal is a vexatious proceeding. I find that the appellants have persistently and without reasonable grounds instituted vexatious proceedings in this Court in connection with orders of the Landlord and Tenant Board. Accordingly, there will be an order that prior to commencing or continuing any proceedings in this Court or in the Superior Court of Justice arising out of decisions made by the Landlord and Tenant Board for matters arising out of issues between the appellants and their landlords, now or in the future, the appellants shall first obtain leave from a judge of either the Divisional Court or the Ontario Superior Court of Justice as the case may be; and

(c) This is a case warranting an order in favour of the respondents requiring the appellants to pay their costs of this motion on a full indemnity basis. Accordingly, the appellants shall pay to the respondents the costs of this motion which I fix at $2,999.98 which is the total of lawyer’s fees and disbursements.

28Order accordingly.

Power J.