Court File and Parties

Citation: Winnick v. Highgate Property Investments Inc. et al., 2014 ONSC 1232 Divisional Court File No.: 9/14 Date: 2014-02-26 Superior Court of Justice – Ontario Divisional Court

Re: Scott Winnick, Tenant/Appellant And: Highgate Property Investments Inc. et al., Landlords/Respondents in Appeal

Before: Harvison Young J.

Counsel: Scott Winnick, appearing in person David S. Strashin, for the Landlords/Respondents in Appeal

Heard: February 25, 2014

Endorsement

[1] The respondent landlords, Highgate Property Investments Inc. and Shirley Lei Qu, seek to quash the tenant Scott Winnick’s appeal and to vacate the stay of the Landlord and Tenant Board order of eviction dated December 17, 2013 and the review order of the Board dated December 31, 2013. In the alternative, the landlords seek an order requiring the tenant to pay the sum of $14,993.00 representing the arrears owing to date plus ongoing monthly rent of $2,910.00 until the disposition of the appeal and requiring the tenant to perfect the appeal forthwith. In the further alternative, the respondents seek an order requiring the tenant to post security for costs.

[2] Both the tenant and the landlord filed applications before the Board. Mr. Winnick claimed that the landlord had failed to maintain the rental premises and substantially interfered with his reasonable enjoyment of the rental premises, largely as a result of hot water problems. The landlord sought an order terminating the tenancy and evicting the tenant due to the tenant’s failure to pay rent.

[3] The Board granted Mr. Winnick a rent abatement in the amount of $2,592.00. The net amount owing by the tenant to the landlord was found to be $9,173.00. The monthly rent for the unit is $2,910.00.

The Motion to Quash

[4] The landlords’ central position is that the appeal is completely devoid of merit and has been filed solely for the purpose of prejudice and delay so that Mr. Winnick can remain in possession of the rented premises for as long as possible, rent free, and that the appeal should therefore be quashed. On behalf of the landlords, Mr. Strashin emphasized an appeal lies only on issues of law from the Board and that Mr. Winnick’s submissions seem to arise from his disagreements with respect to findings of fact.

[5] Mr. Winnick submits that he has a genuine wish to appeal and it is clear that he adamantly believes that he has grounds to appeal. He cannot, however, bring his rent up to date. He advised the court that while he did have some means in the past, the actions of the landlord have put him in the position where he can no longer afford to pay the rent and that it is therefore only fair that he should not have to pay rent pending the hearing of the appeal. He repeatedly stated that his financial situation and his failure to live in the rental unit was caused by the problems with the unit. This submission was carefully addressed and rejected by the Board. The Board rejected his assertion that would have moved into the Toronto unit full time but for the problems, finding that he chose to live in two places (Michigan and Toronto) for his own reasons.

[6] Having reviewed the materials filed and heard submissions from the parties, I find that it is not so clear that the appeal is so clearly devoid of merit that it should be quashed without a hearing on the merits. It is for the panel hearing the appeal to determine its merits.

[7] The appellant, however, advises that he is not willing or able to pay the arrears or any continuing rent.

[8] It is very clear as a matter of law that an appellant in Mr. Winnick’s situation is not entitled to live rent free pending the appeal: see, e.g., Princess Apartments v. Pohvalynskyi [2006] O.J. No. 2712, Wismer Markham Developments Inc. v. MacDonald [2006] O.J. No. 1374, however sympathetic his or her circumstances may be.

[9] Accordingly, the motion to quash is dismissed on the following terms:

a. The tenant shall perfect the appeal within 60 days;

b. The tenant shall pay the landlord the arrears in the amount of $14,993.00 no later than Friday, February 28, 2014;

c. The tenant pending the appeal shall pay the landlord on the first day of each month the sum of $2,910.00;

[10] Failing compliance with any of these terms, the landlord may move without notice before the Registrar and upon affidavit evidence of noncompliance the Registrar shall dismiss the appeal and lift the stay and the order of the Board shall be enforced.

The Motion for Security for Costs

[11] Rule 61.06(1) of the Rules of Civil Procedure provides that security for costs may be ordered where there is good reason to believe that the appeal is frivolous and vexatious, and that the appellant has insufficient assets in Ontario to pay the costs of the appeal.

[12] I would dismiss the landlord’s motion for security for costs. As I have indicated above, I am not satisfied that the appeal is plainly devoid of merit and accordingly frivolous and vexatious. I decline to order that Mr. Winnick post security for costs.

[13] As success on this motion was divided, there shall be no order as to costs.

Harvison Young J.

Date: February 26, 2014