Hausler v. El Zayat, 2016 ONSC 1991

CITATION: Hausler v. El Zayat, 2016 ONSC 1991

COURT FILE NO.: 675/15

DATE: 20160324

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HERTA HAUSLER, Landlord/Moving Party

AND:

HAYTHAM EL ZAYAT, Tenant/Responding Party

BEFORE: H. Sachs J.

COUNSEL: David Strashin, Counsel, for the Landlord/Respondent

Haytham El Zayat, on his own behalf, for the Tenant/Appellant

HEARD at Toronto: March 17, 2016

ENDORSEMENT

[1] This is a motion by the Landlord to quash the Tenant’s appeal on the basis that it is manifestly devoid of merit.

[2] The Landlord obtained an Order from the Landlord and Tenant Board (the “Board”) on December 11, 2015, terminating the Tenant’s tenancy on two bases – the Tenant’s failure to pay rent and the Tenant’s persistent failure to pay his rent on time. With respect to the latter basis for terminating the tenancy, the Board found that “There was no dispute that the Tenant had failed to pay the rent when due.”

[3] The Order also dismissed the Tenant’s application seeking an Order that the Landlord had failed to meet its maintenance obligations. This application was dismissed on the basis of lack of particularity on a without prejudice basis.

[4] On December 21, 2015, the Tenant filed an appeal and thereby obtained an automatic stay of the enforcement of the eviction order of the Board.

[5] The Landlord’s motion to quash was first before Stewart J. on February 25, 2016. At the Tenant’s request the motion was adjourned on terms that included a requirement that the Tenant pay his rent in the amount of $2,253.08 for the months of February and March. The Tenant has failed to pay the rent ordered and is seeking to challenge Stewart J.’s order.

[6] Appeals to the Divisional Court from the Board are only available on questions of law. In his Notices of Appeal, the Tenant sets out a number of grounds of appeal that seek to challenge the factual findings of the Board. These grounds cannot succeed.

[7] The Appellant also alleges that his appeal raises the following questions of law:

(a) The Board erred in law when it made an interim order on September 14, 2015, in response to an adjournment request by the Tenant of the Landlord’s application to terminate, that the Tenant pay his rent to the Board pending the hearing. According to the Tenant, this order was based on the “assumption” that he owed the full rent and was therefore improper.

(b) When the Tenant appeared on the date to which the matter was adjourned the matter was not reached because the Board had another matter that took the full day.

(c) When the Tenant appeared at the hearing giving rise to the Order being appealed, he asked for an adjournment because of his medical condition. The Board suggested that he visit a clinic, which did not help him, and then insisted that he proceed with the hearing.

[8] None of these grounds raise questions of law. The interim order was entirely within the Board’s jurisdiction as a condition of granting the Tenant’s request for an adjournment. The fact that the Tenant is upset that the Board did not have time to hear the matter on the second day it was up does not raise a question of law that this court can adjudicate upon. The third issue could arguably raise a question of procedural fairness were it not for the fact that the Board’s decision makes it clear that the Tenant requested an adjournment “because he had not yet received a response to a complaint to the Board about the payment of his legal fees for attending a previous hearing. As a result, he did not have legal counsel”. The Board found, as it was entitled to, that this was not a reasonable basis for the adjournment.

[9] The Tenant then stated that he was not feeling well. The Board told the Tenant that it would not be dealing with the matter immediately and that he could consider attending a walk-in clinic. When the Board was ready to proceed with the matter, “the Tenant did not raise any issue with his health situation, nor did he provide a doctor’s note that he could not continue with a hearing.”

[10] In view of this history, there can be no suggestion of a lack of procedural fairness.

[11] For these reasons, I find that the Tenant’s appeal is manifestly devoid of merit. I further find that the Tenant’s appeal should be quashed as to make any other order would simply allow the Tenant to continue to live rent free in the premises when there is no possibility that he will succeed in having his eviction set aside.

[12] The Landlord’s motion is granted, the appeal is quashed, and the stay of the eviction order granted by the Board is lifted.

[13] The parties may make submissions to me in writing on the question of costs within 10 days of this endorsement. The Appellant’s approval as to the form of the order arising from this endorsement is dispensed with.

H. Sachs J.

Date: March 24, 2016