Court File and Parties
DIVISIONAL COURT FILE NO.: 169/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ADRIANA HORNSTEIN and JACK HORNSTEIN Tenants (Appellants)
– and –
ROYAL BANK OF CANADA Landlord (Respondent)
David S. Strashin, for the Appellants
Amanda Jackson, for the Respondent
HEARD at Toronto: May 21, 2010
Endorsement
ENDORSEMENT: Ferrier J.:
[1]
Failure to Perfect the Appeal
The appellants have not ordered a transcript of the proceedings held before the Landlord and Tenant Board (the “Board”) on March 10, 2010, nor have they perfected their appeal from the order granted that day by the Board.
2The appellant Adriana Hornstein filed an affidavit on this motion to quash, but that affidavit did not address the default, the ongoing intention to pursue the appeal, nor the merits of the appeal.
3The appellants are experienced litigators. They are masters in filing appeals for strategic purposes; they are masters in the act of prevarication and delay in litigation.
4No explanation has been given concerning the failure to perfect the appeal. The appellants are silent on the issue.
5For this reason alone, the appeal is quashed.
[6]
Merits of the Appeal
There is furthermore no merit to the appeal.
7Considering the grounds of appeal listed in the Notice of Appeal, paras. 4 and 7 are now lifeless, because the maintenance claim has been withdrawn. Para. 8 cannot be argued because the appellants have not ordered a transcript.
8Para. 2 is a bald conclusory statement. Para. 6 has no merit because S. 83(3) of the Residential Tenancy Act has no application to this case.
9That leaves paras. 1 and 3 of the grounds for appeal. Those grounds relate to whether the mandatory cap of monetary jurisdiction at the level of the Small Claims Court jurisdiction, applies in the application of section 74(11) of the Residential Tenancies Act.
10Section 207(1) gives the Board power to order payment to any given person of a sum of money not exceeding the monetary jurisdiction of the Small Claims Court.
11Section 74(5) and (6) provide for the voiding of an order before the order becomes enforceable; the subsections require payment to the landlord or the Board of the amount specified pursuant to the eviction order.
12Section 74(11) provides for the voiding of an eviction order after it comes enforceable, upon payment of the outstanding arrears of rent.
13To hold that the monetary cap applies to “the outstanding arrears of rent” would result in an absurdity. The defaulting tenant could continue ad infinitum to merely pay the monetary limit and continue in possession, all the while continuing in default.
14Finally, even if the appellants are correct in their argument on the interpretation of these sections, the appeal is devoid of merit because they did not pay interest and costs to the Board when seeking to void the eviction order.
[15]
Disposition
Accordingly, the appeal is quashed.
[16]
Costs
Costs fixed at $5,000.00 including disbursements, G.S.T. and H.S.T.
Ferrier J.
Released: May 28, 2010
CITATION: Hornstein et al. v. Royal Bank of Canada, 2010 ONSC 3134
DIVISIONAL COURT FILE NO.: 169/10
DATE: 20100528
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ADRIANA HORNSTEIN and JACK HORNSTEIN Tenants (Appellants)
– and –
ROYAL BANK OF CANADA Landlord (Respondent)
ENDORSEMENT
Ferrier J.
Released: May 28, 2010