CITATION: Cambridge Place Apartments Ltd. v. Mungeni, 2013 ONSC 5844
DIVISIONAL COURT FILE NO.: 338/13
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Cambridge Place Apartments Ltd. c/o Realstar Management Partnership
Landlord (Respondent in the Appeal), Moving Party
– and –
Yuma Mungeni
Tenant (Appellant in the Appeal), Responding Party
Martin P. Zarnett, for the Respondent, Moving Party
Jill Zelmanovits and Kenneth Hale, for the Tenant, Responding Party
HEARD at Toronto: September 16, 2013
H. Sachs J.
Nature of the Motion
[1] This is a motion by the Landlord to lift the stay of the order evicting the Tenant that was imposed by the Landlord and Tenant Board on July 8, 2013. The Tenant has appealed the eviction order.
Factual Background
[2] The Tenant is a fifty-two year old man who has resided in the subject rental unit for twenty years. Pursuant to his agreement with the Landlord it is clear that part of his rent is paid by him and part of his rent is paid by Toronto’s social housing agency, now known as “Housing Connections.”
[3] Housing Connections discontinued payment of the portion of the rent that it paid to the Landlord each month. As a result the Tenant fell into arrears and the Landlord applied to the Landlord and Tenant Board to terminate his tenancy.
[4] The Tenant disputed the basis upon which Housing Connections terminated its payment, a dispute that ultimately resulted in him commencing a judicial review application before the Divisional Court.
[5] The hearing before the Landlord and Tenant Board occurred on June 19, 2013, two days after the Tenant filed his judicial review application in relation to Housing Connections’ actions.
[6] At the hearing before the Landlord and Tenant Board, the Tenant asked that the hearing respecting the request for his eviction be adjourned in order to allow for a determination of the issue of whether Housing Connections’ actions were improper. The Board refused the request for an adjournment, proceeded with the hearing and made an order evicting the Tenant.
[7] The Tenant has appealed that order. During the course of the hearing, counsel for the Landlord conceded that the Tenant’s appeal was not without merit and that was why the Landlord had not brought a motion to quash the appeal. In other words, this is not a case where the Tenant has filed an appeal in order to use the automatic stay that results from the filing of that appeal to get some more months of free rent before being evicted.
[8] Since the hearing before the Board, the Tenant and Housing Connections have engaged in various settlement discussions to resolve the judicial review application. Those discussions have progressed to the point where Housing Connections is prepared to reinstate their portion of the Tenant’s rental payment and to pay just over $6000.00 in rental arrears. The Tenant maintains that Housing Connections has made some errors in its calculations and is proposing to continue his negotiations with it to sort out those errors. According to the Tenant’s calculations, all of the rental arrears owing should be paid by Housing Connections.
The Test for Lifting a Stay
[9] The stay of eviction orders is automatic upon delivery of a Notice of Appeal from an eviction decision of the Landlord and Tenant Board. Pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990. c. C.43, the court has the power to make “any interim order that is considered just to prevent prejudice to a party pending the appeal.” Lifting a stay pending appeal is “restricted to cases of demonstrable and unusual hardship to the respondent and where a reasonable measure of protection can be afforded to the appellant.” (Ryan v. Laidlaw Transportation Ltd. 1994 616 (ON CA), [1994] O.J. No. 1883 (C.A.), paras. 12 and 13).
Analysis
[10] The Landlord submits that if the stay is not granted it will suffer “demonstrable and unusual hardship” as the rental arrears will continue to accumulate. In my view, such a result is the usual consequence of a stay pending appeal of an eviction order. It does not meet the threshold for “unusual hardship” as that term has been interpreted in the caselaw. Furthermore, there is a real argument that lifting the stay would actually increase the losses suffered by the Landlord as a result of the rental dispute. If the stay is lifted the Tenant will be evicted, thereby removing his incentive to continue with his judicial review application. If the judicial review application is discontinued, Housing Connections will not pay the rent it seems to be prepared to pay. The Tenant is of very limited means and his ability to pay the rent owing is highly questionable. On the other hand, if the stay is not lifted, there is a real chance that Housing Connections will pay most of the money that is owed and that the Tenant will be able to pay the rest (if any).
[11] With respect to the second part of the test for lifting a stay (affording a reasonable measure of protection to the appellant), if the stay is lifted, the Tenant will be evicted and lose his home of twenty years. Obtaining subsidized housing in the City of Toronto is a difficult and lengthy process. Thus, given his limited resources, the Tenant could well be rendered homeless.
Conclusion
[12] For these reasons the motion to lift the stay is denied. The Tenant is entitled to his costs of this motion, which I fix at $2,000.00, all inclusive.
H. SACHS J.
Released:
CITATION: Cambridge Place Apartments Ltd. v. Mungeni, 2013 ONSC 5844
DIVISIONAL COURT FILE NO.: 338/13
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. SACHS J.
BETWEEN:
Cambridge Place Apartments Ltd. c/o Realstar Management Partnership
Landlord (Respondent in the Appeal), Moving Party
– and –
Yuma Mungeni
Tenant (Appellant in the Appeal), Responding Party
REASONS FOR JUDGMENT
Released: September 17, 2013