CITATION: Cheng Wen Construction v. 2073008 Ontario Inc., 2011 ONSC 8063
DIVISIONAL COURT FILE NO.: 580/11
DATE: 20111220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CHENG WEN CONSTRUCTION COMPANY LIMITED
Plaintiff
(Applicant)
– and –
2073008 ONTARIO INC., DONG JAE LEE, a.k.a. DONG LEE, IN SOOK LEE, a.k.a. JOYCE LEE
Defendants
(Tenant/Respondent)
K. B. Ng, for the Plaintiff (Applicant)
J. de Klerk, for the Occupants
Dong Lee, In Person
Joyce Lee, In Person
HEARD at Toronto: December 20, 2011
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J. (orally)
[1] The applicants, 2073008 Ontario Inc., Dong Jae Lee and Joyce Lee, who are self represented, have appealed from the judgment of Spence J. dated December 12, 2011, granting a writ of possession to the defendant Cheng Wen Construction Company Limited of certain property on Yonge Street.
[2] The applicants seek a stay of their order pending their appeal. Despite the fact they are not represented before court today, they did not seek an adjournment so they could have counsel attend.
[3] Before me, the main grounds advanced in the Notice of Appeal, filed, relate to the applicants’ claim that the matter before Spence J. should not have proceeded without legal representation and that he should have adjourned the hearing on that occasion.
[4] The applicants are running a rooming house in Toronto and ask that a stay be granted so they may continue the work which they characterize as somewhat charitable in order to provide the occupants, most of whom receive social assistance, with housing.
[5] Ms. Lee submitted that she feels called by God to help the people who have become occupants, most of whom or many of whom have drug or alcohol problems, and in her words, need her help. While she and Mr. Lee did not directly address the test for granting a stay, it is their position before this court that the enforcement of the writ would compromise the interests of the occupants. They also submit that they, the Lees, have nowhere else to go, and that this is their home.
[6] In reply, Ms. Lee also indicated that the enforcement of the writ will have financial implications for them. The premises in issue is the fourth floor of a building at 543 Yonge Street which used to be St. Marks Spa. There is a hallway and numerous cubicles. There are around one hundred occupants.
[7] The City requirements would not permit more than twenty-five in this space, and the record before the Court indicates that major renovations would be required before the premises could meet the municipal standards and obtain a rooming house licence in any event.
[8] The Residential Tenancy Board has ruled that as between the Lees and the occupants, the Residential Tenancy Act applies but that the lease between the Landlord/Respondents and the applicant is commercial. Mr. de Klerk appeared on behalf of Neighbourhood Legal Services for the occupants.
[9] There are serious disputes between the occupants and the Lees at this present time, as the documentation in the application record indicates. The main purpose of all of this for the purposes of the application to stay is that the evidence before me does not support the submission that the balance of convenience favours a stay because of the interest of the occupants. Having heard lengthy submissions from all parties, I am not satisfied that the grounds for a stay, with respect to which the applicants have the onus to make out, have been established.
[10] First, the Notice of Appeal challenges the motion Judge’s order largely on the basis he permitted the trial to go ahead, notwithstanding the fact the Lees were unrepresented. On the basis of the record, the number of previous appearances before the Court by the applicants with or without lawyers, and the fact no adjournment was requested before Spence J., I am not satisfied that the applicants have made out a serious issue to be tried on the appeal.
[11] In the circumstances, no basis for a claim of irreparable harm has been advanced. Although the Lees submit this is their home, there is currently a court order in place restraining Ms. Lee being on the premises as a result of an altercation with an occupant. In reply, Ms. Lee also submitted that the Lees will suffer financial consequences if the stay is not granted. However, it is not clear that rent is, in fact, being paid at this point because there are indications before the Court that rent is being withheld by the occupants in the meantime. In other words, it is not clear that a stay would make much difference in any event, with respect to financial concerns.
[12] Finally, the applicants have not established that the balance of convenience lies in their favour. The record before the Court, as submitted by both Mr. de Klerk and Mr. Ng, suggests it does not. In short, the applicants have not met any of the elements of the test for granting a stay pending appeal. The application is therefore dismissed.
[13] Mr. Ng, for the respondents, also brought, as of today, a motion that the appeal be quashed. I am not prepared to address that motion on the basis that the applicants were not afforded the opportunity prior to today to retain legal advice and/or prepare a response.
[14] The cross motion is therefore dismissed without prejudice to the respondents’ right to bring a fresh motion to quash in accordance with the rules. Mr. Ng also indicated before me that the respondents wish to seek an order for security for costs. Again, I am not prepared to address that motion in the absence of proper materials and proper service upon the applicants in compliance with the rules. I would recommend that it would be most efficient, if the respondents wish to bring these motions, to bring them both at the same time.
COSTS
[15] The motion to stay is dismissed for reasons given orally. Costs payable by the applicants to the respondents within thirty days in the amount of $1,500.00.
HARVISON YOUNG J.
Date of Reasons for Judgment: December 20, 2011
Date of Release: February 14, 2012
CITATION: Cheng Wen Construction v. 2073008 Ontario Inc., 2011 ONSC 8063
DIVISIONAL COURT FILE NO.: 580/11
DATE: 20111220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARVISON YOUNG J.
BETWEEN:
CHENG WEN CONSTRUCTION COMPANY LIMITED
Plaintiff
(Applicant)
– and –
2073008 ONTARIO INC., DONG JAE LEE, a.k.a. DONG LEE, IN SOOK LEE, a.k.a. JOYCE LEE
Defendants
(Tenant/Respondent)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: December 20, 2011
Date of Release: February 14, 2012