CITATION: 898967 Ontario Limited v. Subryan Veersammy, 2015 ONSC 2989
DIVISIONAL COURT FILE NO.: 190/15
DATE: 20150508
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
898967 ONTARIO LIMITED
Plaintiff
(Respondent in Appeal)
– and –
SUBRYAN VEERSAMMY
Respondent
(Appellant)
D. Shiller and Jordan Epstein
for the Plaintiff (Respondent in Appeal)
Carol Shirtliff and Ben Hahn
for the Respondent (Appellant)
HEARD at Toronto: April 29, 2015
THEN J.:
[1] The appellant, Veersammy, hereafter the “landlord” of the commercial premise at 2205 Kingston Road in Toronto seeks a stay of the formal order of Whitaker J. dated April 17, 2015, pending the hearing of the appeal.
[2] Whitaker J. ordered, inter alia, that the tenant be permitted to return to the premises forthwith. The landlord seeks a stay of that order.
[3] On this motion the court is required to determine three issues:
(i) Is there a serious issue to be determined on appeal?
(ii) If a stay is not granted, will the appellant suffer irreparable harm?
(iii) Will the appellant suffer grater harm than the respondent should a stay not be granted?
[4] In the circumstances of this case I find it necessary to make a preliminary ruling.
[5] On the issue of irreparable harm the appellant relies on his affidavit which outlines the concerns of the appellant with respect to the tenants’ threats relating to the life, health and safety of him and his family as well as to the physical integrity of the premises. The tenant denies all of the allegations. However, paragraph 16 of the affidavit reads as follows:
- I am most concerned about the safety and well-being of my family as Bemister’s threats have found their way into the consciousness of my family. On April 15, 2015 I had the scare of my life. My teenage daughter’s high school guidance counsellor phoned me with very disturbing news that my daughter told her friends that she planned to commit suicide that weekend because Bemister was returning to the Premises. I am fortunate that her friends brought her to the guidance counsellor. The guidance counsellor advised that she be admitted to East General Hospital. My daughter was admitted to hospital on April 15, 2015. She has been diagnosed with depression and anxiety, has been taking medication to treat her diagnoses and is seeing a counsellor. A copy of a letter from the hospital stating the date of her entering the hospital is annexed and marked as exhibit “G”.
[6] Exhibit G is a note dated April 20, 2015 from Daisy Galeano, Child and Youth Crisis Worker, Child and Adolescent Mental Health Services, which advises to whom it may concern that Vanessa Veersammy was seen in the E.R. of East General Hospital by the writer on April 15, 2015 and on two occasions on April 16, 2015 due to her emotional state.
[7] The court must obviously be concerned with the effect that the tenant’s return to the premises may have on the health of Vanessa Veersammy. However, the affidavit of the landlord is replete with hearsay, as the landlord has no personal knowledge of the facts alleged. More significantly, there is no evidence as to who diagnosed her with depression and anxiety, nor whether this diagnosis in any way relates to suicidal tendencies which may occur if the tenant returns to the premises. Moreover, there is no evidence to indicate whether the medication and counselling will enable her to control any depression or anxiety relating to the return of the tenant to the premises.
[8] I appreciate that from the tenant’s perspective there is a sense of urgency to this matter as he submits that he has been unjustly locked out of the premises for more than 4 months and that accordingly if the dangers to the health of Vanessa Veersammy are real the landlord should have put his best foot forward in his affidavit. Nevertheless, given the potential risk to Vanessa Veersammy, the court is required to take pro-active measures notwithstanding the deficiencies in the landlord’s affidavit in the circumstances of this case.
[9] In my view, the issue of irreparable harm cannot properly be decided in the absence of further and better evidence from a health professional by way of a report with respect to the issues outlined above.
[10] Accordingly, I request that the appellant file with the court, with a copy to the respondent, a report from a health professional within 7 days and the submissions of counsel pertaining to the report within 10 days so that the court may properly determine the issue of irreparable harm.
THEN J.
RELEASED: May 8, 2015
CITATION: 898967 Ontario Limited v. Subryan Veersammy, 2015 ONSC 2989
DIVISIONAL COURT FILE NO.: 190/15
DATE: 20150508
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
898967 ONTARIO LIMITED
Plaintiff
(Respondent in Appeal)
– and –
SUBRYAN VEERSAMMY
Respondent
(Appellant)
REASONS FOR JUDGMENT
THEN J.
RELEASED: May 8, 2015