Court File and Parties
CITATION: Obermuller v. Kenfinch Co-Operative Housing Inc., 2015 ONSC 4151
DIVISIONAL COURT FILE NO.: 543/14
M45065/M45066 DATE: 20150625
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, D. L. CORBETT AND POMERANCE JJ.
BETWEEN:
CHERYL OBERMULLER
Appellant/Moving Party
– and –
KENFINCH CO-OPERATIVE HOUSING INC.
Respondent/Responding Party
In Person
Celia J. Chandler, for the Responding Party
HEARD at Toronto: June 25, 2015
Oral Reasons for Judgment
D. L. CORBETT J. (ORALLY)
[1] The appellant seeks review of the order of Molloy J. quashing the appellant’s appeal and her judicial review and granting the respondent consequential relief.
[2] There is a long and complex history between the appellant and the respondent going back over a decade. However, the issues before us are of recent vintage and do not require detailed analysis of ancient history.
[3] The appellant occupies a residential unit in a Co-Operative apartment building. Prior to May 1, 2015, she had not made any monthly payments for almost two years.
[4] The appellant claims that she is entitled to subsidized rent. The regular monthly charge for the appellant’s unit has ranged between $1,000 and $1,050 per month during the period 2008 to the present. Fully subsidized rent has ranged from $250 to $475 per month. The respondent takes the position that the appellant ceased to be qualified for subsidized rent several years ago because she failed to provide the financial information and documents necessary to process her application for subsidy. This issue appears to be disputed.
[5] On the respondent’s calculations, without applying a rent subsidy for the years in which one was not granted to the appellant, the arrears in the appellant’s monthly payments are now more than $46,000. If it is assumed that the appellant has been entitled to a maximum subsidy throughout her tenure at the Co-Operative, then the appellant’s outstanding arrears are in the range of $17,580. These amounts are not agreed but are clearly in the general range of how the calculations would turn out.
[6] The respondent proceeded before the Landlord and Tenant Board in 2014 on the basis of the appellant’s persistent and substantial arrears. The Landlord and Tenant Board found for the respondent, ordered payment of $25,000 (the maximum that the Landlord and Tenant Board can order) and made an order evicting the appellant from her unit. The appellant launched an appeal to this Court and the appellant then commenced an application for judicial review in this Court in respect to the Co-Operative’s decision denying her request for subsidy.
[7] The Co-Operative moved to quash the appeal and the judicial review. That motion came on before J. Wilson J. who declined to dismiss the appellant’s proceedings summarily but who made several orders in respect to the proceedings. J. Wilson J. ordered that the appellant start paying rent fixed at $475 per month as of April 1, 2015 and pay that monthly amount thereafter on the first of each month. Her Honour also ordered that the appellant produce documents and information relevant to the judicial review by April 23, 2015.
[8] We are satisfied that the appellant was served with J. Wilson J.’s order on March 13, 2015 and with the Motion Record of the motion before Molloy J. in mid-April 2015, all in accordance with the service terms of J. Wilson J.’s orders.
[9] We are also satisfied that the appellant had notice in fact of the order of J. Wilson J.
[10] The appellant did not make the required payment of $475 per month by April 1, 2015, as required by J. Wilson J. The respondent then moved to quash the appeal and the judicial review on the basis of the appellant’s non-compliance with the order of J. Wilson J. That is the motion that came on before Molloy J. on April 21, 2015.
[11] On April 20, 2015, the appellant attended at the Court office and filed an affidavit in which she stated that she had a “treatment appointment” on April 21, 2015. The appellant did not appear on April 21. It is clear from the materials filed the previous day that she was aware of the motion scheduled before Molloy J. Justice Molloy concluded that “the appeal is not being proceeded with in good faith” and quashed both the appeal and the judicial review.
[12] On May 1, 2015, the appellant made two payments of $475 each, one purportedly for the month of April 2015 and the other for the month of May 2015.
[13] The appellant has not made the required payment for the month of June 2015 and she has not provided the documents and information ordered produced by J. Wilson J. which were to have been provided by April 23, 2015.
[14] The order of J. Wilson J. was extraordinarily lenient in all of the circumstances. The Co-Operative and its residents should not be required to underwrite the appellant living without monthly payments. On the basis of the appellant’s account of matters, she has, undoubted, substantial arrears. In the face of these circumstances she has not complied with J. Wilson J.’s lenient payment terms and Her Honour’s requirement that the appellant document her claim to entitlement to subsidized rent.
[15] We do not accept the appellant’s claims not to have had notice of proceedings or to have been unable to attend scheduled Court appearances. It may be that there is a reasonable argument that the appellant should have been entitled to rent subsidy but this does not excuse the overall failure to pay anything at all for almost two years.
[16] On the record before Molloy J., Her Honour made no error. On the additional evidence before us we are not prepared to intervene.
[17] The motion is dismissed.
SWINTON J.
COSTS
[18] I have endorsed the Notice of Motion, “For oral reasons given today by D. L. Corbett J., the appellant’s motion to vary the order of Molloy J. dated April 21, 2015 is dismissed. Order is to go in the form of the draft on which I placed my fiat. What we have done, as explained earlier: we have removed paragraph one, changed the first paragraph to be “the motion to vary is dismissed”.
[19] We have added a new paragraph 2: “The appellant shall turn over vacant possession by no later than July 20, 2015”. We have ordered costs to the respondent fixed at $10,000 inclusive of disbursements.
[20] The Court need not deal with the appellant’s motion for a stay, given that the order of Molloy J. has been affirmed in the s. 21(5) motion heard today.
___________________________ D. L. CORBETT J.
SWINTON J.
POMERANCE J.
Date of Reasons for Judgment: June 25, 2015
Date of Release: July 6, 2015
CITATION: Obermuller v. Kenfinch Co-Operative Housing Inc., 2015 ONSC 4151
DIVISIONAL COURT FILE NO.: 543/14
M45065/M45066 DATE: 20150625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D. L. CORBETT AND POMERANCE JJ.
BETWEEN:
CHERYL OBERMULLER
Appellant/Moving Party
– and –
KENFINCH CO-OPERATIVE HOUSING INC.
Respondent/Responding Party
ORAL REASONS FOR JUDGMENT
D. L. CORBETT J.
Date of Reasons for Judgment: June 25, 2015
Date of Release: July 6, 2015