CITATION: Elks v. Derouin, 2011 ONSC 6838

DIVISIONAL COURT FILE NO.: 11-DV-1745

DATE: 20111118

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SCOTT J.

BETWEEN:

KAYLIN ELKS

Appellant

– and –

JOHN DEROUIN and JOANNE BELANGER

Respondents

Self-represented

David Lyman, for the Respondents

HEARD: November 17, 2011

DECISION ON MOTION

Introduction

1This is a motion by the Respondent landlord requesting:

(1) An order quashing the appeal by the Appellant tenant of the order of the Landlord and Tenant Board dated July 4, 2011;

(2) In the alternative, and order lifting the stay of final order of the Landlord and Tenant Board dated July 4, 2011, evicting the Appellant tenant;

(3) In the further alternative, an order that the Appellant tenant pay all rent arrears immediately to the Respondent landlord and the Appellant tenant pay all future rent in advance on the first day of each month to the Respondent landlord pending the hearing of the appeal and that in default of any such payments the appeal shall be dismissed and the stay lifted; and

(4) Costs.

Facts

Facts

2The history of this matter has been established by the Landlord and Tenant Board on two occasions, namely on February 23, 2011 and on July 4, 2011.

3The matter has become complicated by a number of other court actions and, investigations instituted by the Appellant tenant. These arise from the Appellant tenant’s position that there exists an enforceable agreement of purchase and sale between the parties with respect to the dwelling occupied by the Appellant tenant.

4This position has resulted in the Appellant tenant commencing another action in the Superior Court which apparently seeks relief in this regard. I am advised by counsel for the Respondent landlord which is supported through the materials filed by the Appellant tenant that a Certificate of Pending Litigation is now registered on title to the premises. This position by the Appellant tenant that is probably because of the determination by the Landlord and Tenant Board on February 23, 2011 that the Tenant agreement was separate and distinct from the purchase and sale agreement.

5To complicate matters further, there has been a history and there is an ongoing issue relating to the non-payment of rent by the Appellant tenant. Currently, she is $8800.00 in arrears and has advised this court that she does not have the money and is incapable financially at this time of paying rent. The Appellant tenant indicated that she could start paying monthly rent into the future commencing December 16, 2011. On the matter of rent, the Landlord and Tenant Board ordered, among other things on February 23, 2011 that the Appellant tenant pay to the Respondent landlord $3,875.00 for rent owing up to February 28, 2011 and ordered that the same be paid by March 6, 2011. It seems that this amount was paid within that timeline. I am advised by counsel for the Respondent landlord that rent is $1,100.00 per month payable on the first day of each month.

6Thereafter, the Appellant tenant did not and has not paid any rent. On July 4, 2011 the Landlord and Tenant Board terminated the tenancy and among other matters, ordered the Appellant tenant to pay rent from April 1, 2011 to July 4, 2011. This rent and subsequent rent as ordered has not been paid.

7It is from this order that the Appellant tenant appealed to the divisional court.

The Law

The Law

8I have not received all of the materials submitted to the Divisional Court, however, I am advised by counsel that a hearing date has not been fixed but is pending. It is my opinion that it would be premature to grant the relief sought by the Respondent landlord with respect to quashing the appeal. (Items 1 of the relief sought in this motion by the Respondent landlord.) However, there appears to be no valid reason why the Appellant tenant should not pay the arrears of rent and ongoing rent pending the outcome of the hearing of her appeal before the Divisional Court sometime in the future.

9The Appellant tenant submits that it would be unfair to request her to pay rent because all of her money is “tied up” in the equity in and renovations to the premises (not to mention that she has no income.)

10In light of the fact that the Appellant tenant did not appeal the finding by the Landlord and Tenant Board of February 23, 2011 wherein it was determined that the tenancy agreement was separate and distinct from the purchase and sale agreement and, because any equity or renovation expenses of the Appellant tenant are expressly protected in the Superior Court Action by the Certificate of Pending Litigation instituted by the Appellant tenant, it would be reasonable and proper to make and order requiring the Appellant tenant to pay arrears and ongoing rent.

11This would be in keeping with Rule 134(2) of the Courts of Justice Act which reads:

On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal. [Emphasis added]

12In addition, Rule 63.01 of our Court Practice permits a judge of the Divisional Court to lift the automatic stay “on such terms as are just.”

Order

13Given all of the circumstances I make the following order pending the appeal:

(1) The automatic stay of the order of the Ontario Landlord and Tenant Board dated July 4, 2011 evicting the Appellant tenant be lifted unless the Appellant tenant pays the following rents;

(a) The Appellant tenant pay the arrears or rent from April 1, 2011 in the amount of $8,800.00 in full by 2:00 p.m. on November 28, 2011;

(b) The Appellant tenant pay monthly rent on 1 December, 2011 in the amount of $1,100.00 per month on the first day of each month thereafter pending the hearing of the Appeal.

(2) In the event of default by the Appellant tenant with respect to any of the conditions outlined in paragraph 1 above, and upon receiving affidavit evidence from the Respondent landlord of the Appellant tenant’s failure to meet the condition or conditions, the Court Enforcement Office (Sheriff) is hereby directed to give immediate vacant possession of 234 Carillon Street, Ottawa to the Respondent landlord.

(3) The Respondent landlord does not require the consent of the Appellant tenant to have this order filed and issued by this Court.

(4) Costs are fixed at $500.00 payable within 90 days.

The Hon. Mr. Justice Scott