Court File and Parties

CITATION: Ramlochan v. D’Souza, 2012 ONSC 4251

DIVISIONAL COURT FILE NO.: 101/12

LTB File No.: TNT-21357-11-RV

DATE: 2012-07-18

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Joseph Remisiar and Delishia Remisiar, Appellants/Respondents on Cross-Motion

AND:

Russel Ramlochan, Respondent on Appeal/ Moving Party on Cross-Motion

BEFORE: LAX J.

COUNSEL: R. Lachmansingh, for the Appellants R. Cucci, for the Respondent

HEARD: July 12, 2012

ENDORSEMENT

[1] This dispute concerns a property at 60 Townley Avenue in Markham, Ontario. The appellants, Joseph and Delishia Remisiar, are the tenants of the property and also the prospective purchasers under an Agreement of Purchase and Sale dated June 30, 2011. They appeal to the Divisional Court from Orders of the Landlord and Tenant Board (“the Board”) granting exclusive possession of the property to the respondent, Russel Ramlochan. He brings this cross-motion to quash the appeal and to lift the statutory stay of the Board’s Orders under s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[2] In separate proceedings in the Superior Court[^1], Mr. Ramlochan obtained an Order on August 9, 2011 granting a Certificate of Pending Litigation (“CPL”) in respect of the property. As a result, the appellants’ purchase of the property has never been completed. They have a pending motion to discharge the CPL that is scheduled to be heard on August 17, 2012.

[3] The dispute that brings the appellants to this Court originates in Landlord and Tenant Proceedings initiated by Augustine D’Souza as Landlord and Mr. Ramlochan as Tenant. In July 2011, Mr. D’Souza brought an application to terminate the tenancy of Mr. Ramlochan for non-payment of rent. Before the application could be heard on August 23, 2011, Mr. Ramlochan was locked out of the property. On August 8, 2011, a Tenant’s Application was made by Mr. Ramlochan to the Board for an Order to determine that Mr. D’Souza had illegally locked him out of the property and to restore him to possession. The following day, August 8^th^, Mr. Ramlochan obtained the CPL and registered it on title. Mr. Remisiar was informed by his real estate lawyer that he could not complete his purchase of the property. On August 24, 2011, the appellants became Tenants of 60 Townley Avenue pending the closing of the Agreement of Purchase and Sale pursuant to a lease agreement between them and the registered owners, Bernadette D’Souza (wife of Augustine) and Erica Gomes (their daughter). Since then, the appellants have resided there with their family.

[4] The appellants appeal from the Order of Member Homsi of the Board dated March 2, 2012. As explained below, this was the final Order in a series of Orders issued by the Board relating to the property.

[5] The matter first came before the Board on August 16, 2011 in Newmarket. Board Member V. Ching adjourned Mr. Ramlochan’s Application to August 23, 2011 to be heard together with the Application of the Landlord. On that day, Member Ching issued an interim Order requiring D’Souza to allow Ramlochan to take immediate possession of the property. He did not comply.

[6] On August 22, 2011, D’Souza requested a review of member Ching’s Order and on August 23, 2011, the Board adjourned both Applications to October 19, 2011 to provide additional hearing time. On August 24, 2011, Member Watson stayed Member Ching’s interim Order of August 16, 2011.

[7] On October 19, 2011, a hearing of Mr. D’Souza’s review request proceeded before Member Watson who made the following findings:

(a) That the appellants were not bona fide tenants of the property, but occupied 60 Townley as agents of the Landlord in an effort to thwart Mr. Ramlochan’s right to occupy the property;

(b) That the interests of the appellants were argued before the Superior Court on Mr. Ramlochan’s application for a CPL and that the effect on the appellants of the court issuing a CPL was argued and rejected;

(c) That the Superior Court determined that it was appropriate to recognize Mr. Ramlochan’s claim by issuing a CPL;

(d) That on August 10, 2011, Mr. Ramlochan’s representative had sent the CPL to the solicitor acting for the appellants and since that time, they had been on notice of Mr. Ramlochan’s claim to the property;

(e) That in the face of that knowledge, if the appellants chose to occupy the property at the behest of the Landlord, they did so at their peril.

[8] Based on these findings and others, Member Watson found that there was no serious error with its interim Order dated August 16, 2011, other than failing to provide an enforcement mechanism if Mr. D’Souza did not comply. She therefore allowed the request to review, and replaced member Ching’s interim Order with her interim Order dated October 21, 2011 which provided that Mr. Ramlochan be given vacant possession of the property on or before November 1, 2011 and that the Order could be filed with the Sheriff and enforced as of November 2, 2011. Mr. D’Souza’s Application and the balance of Mr. Ramlochan’s Application were adjourned to a date to be determined by the Board.

[9] On November 3, 2011, the appellants requested that the Board review Member Watson’s Order. The basis for the review request was that the Board had made errors of jurisdiction, law and/or fact, and that the rules of natural justice were breached, in that relief was granted which prejudiced the appellants without their having had a reasonable opportunity to be heard. On November 4, 2011, Member Fahlgren stayed member Watson’s Order until the review request could be heard.

[10] The review hearing proceeded on February 9, 2012. On March 2, 2012, Member Homsi denied the review request on the basis that the Board had made no serious error in its Order, and that there had been no breach of natural justice in failing to serve the appellants or to invite them to participate in the hearing as they “should not have been there to start with”. Mr. Remisiar attended the hearing, but was not permitted to give evidence. On March 9, 2012, the appellants appealed to the Divisional Court from the Order of Member Homsi. The appeal has been perfected and listed for hearing, but no hearing date has yet been established.

[11] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that the court may, “in a proper case” quash an appeal. A motion to quash an appeal may be brought where the moving party contends that the court cannot or should not hear the merits of the appeal such as where the dispute has settled or is moot. The court may also quash an appeal where it is manifestly devoid of merit: Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d), 1 (C.A.) at paras. 4-6. However, this relief will not be granted where it would require a de facto hearing of the appeal: Schmidt, at paras 7-8. Only a minimal level of merit is needed to defeat a motion to quash. Based on the material filed on the motion, I am unable to conclude that no aspect of the appeal has any merit and on this basis, the motion to quash should be dismissed.

[12] The respondent argues that the appeal is in substance an appeal of the Order for possession of Member Ching made on August 16, 2011 and is therefore long out of time. Similarly, the respondent argues that the appellants were “fully aware” of the Order of Member Watson as they sought review of that Order and did not appeal the Order in a timely fashion. The appellants made a request to review Member Watson’s October 21, 2011 Order on November 3, 2011. This was within 30 days after Member Watson’s Order was issued.

[13] Rule 29.1 and 29.3 of the Landlord and Tenant Board’s Rules of Practice provide:

29.1 A party to an order or any person directly affected by it may file a written request to review any order or any decision which finally disposes of an application, or affects the rights of the parties in a final way, in whole or part. (Emphasis added)

29.3 A request to review an order shall be made to the Board on or before the date that is 30 days after the order is issued unless the review was initiated by a Vice-Chair.

[14] Mr. D’Souza’s request for review of Member Ching’s interim order was made in time. Member Watson replaced Member Ching’s Order on October 21, 2011 and the appellants made a timely request for review on November 2, 2011. They were clearly entitled to request a review as the effect of the Order was to terminate their tenancy and require them to vacate the property putting in jeopardy not only their tenancy, but also their Agreement of Purchase and Sale. I do not agree with the moving party that the appeal is, in substance, an appeal of Member Watson’s Order. I accept the position of the appellants that the appeal is an appeal of Member Homsi’s Order confirming member Watson’s Order upon review. A Board Order denying a request to review is appealable to the Divisional Court: Ellis v. Peel Housing Corp. 2009 5154 (Ont. Div. Ct.). I reject the submission of the moving party that the appeal should be quashed on the basis that it is out of time.

[15] Section 25(1) of the Statutory Powers Procedure Act provides that an appeal from a decision of a tribunal operates as a stay in the matter, subject to exceptions that do not apply here. This results in an automatic stay not only of Member Homsi’s Order, but of the matter itself, which would include all Board proceedings and Orders in respect of the Landlord and Tenant proceedings.

[16] The moving party requests that the stay be lifted, although the grounds for this are unclear. Courts are reluctant to lift statutory stays and the onus lies on the applicant to convince the Court otherwise: Schiller v. Scarborough General Hospital, 1973 CarswellOnt 309 (Div. Ct.) at 3; Roosma v. Ford Motor Co. of Canada, 1988 CarswellOnt 946 (Div. Ct.) at 29. In Schiller, the hospital appealed a decision of the Ontario Hospital Appeal Board ordering that the applicant physician be appointed to its staff for one year. While awaiting the appeal, the applicant applied for his position and the hospital refused on the ground that by s. 25(1), the appeal acted as a stay. The applicant applied to lift the stay. In refusing this, the court said, “we cannot see how this quarrel can be aided in any way by requiring the hospital to accept the applicant when his legal rights to be accepted are still in issue before us”.[^2]

[17] If the automatic stay were to be lifted, it would permit Mr. Ramlochan to have vacant possession of the property although his right to possession is an issue on the appeal as set out in the grounds for appeal. I appreciate that Mr. Ramlochan has been out of possession for almost 12 months, but in my view, the balance of convenience favours maintaining the status quo until the appeal is heard. In that regard, counsel should not delay in contacting the Panel Scheduling Co-ordinator in the Divisional Court Office to obtain an early hearing date for the appeal.

[18] The motion is dismissed with costs to the appellants in the amount of $6,000, inclusive of fees, disbursements and H.S.T.

LAX J.

Date: July 18, 2012

[^1]: Bernadette D’Souza v. Ramlochan, Court File No. CV-11-431889 [^2]: at 6.