Court File and Parties

CITATION: Hausler v. El Zayat, 2016 ONSC 3370

COURT FILE NO.: 675/15

DATE: 20160520

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HERTA HAUSLER, Landlord/Responding Party

AND

HAYTHAN EL ZAYAT, Tenant/Applicant

BEFORE: L.A. Pattillo J.

COUNSEL: Haytham El Zayat, in person

David Strashin, Counsel, for the Landlord/Respondent

HEARD: May 20, 2016

ENDORSEMENT

[1] On December 11, 2015, the Landlord and Tenant Board (the “Board”) terminated Mr. El Zayat’s tenancy with the Ms. Hauser, the Landlord, for failure to pay rent and persistent failure to pay rent on time and granted an eviction order.

[2] On December 21, 2015, Mr. El Zayat filed an appeal from the Board’s order. The appeal gave rise to an automatic stay of enforcement of the Board’s eviction order.

[3] The Landlord brought a motion to quash the appeal which came before Stewart J. on February 25, 2016. The motion was adjourned at the request of Mr. El Zayat on the condition he pay rent of $2,253.08 for each of the months of February and March 2016.

[4] Mr. El Zayat subsequently moved to challenge Justice Stewart’s order.

[5] The Landlord’s motion to quash was heard on March 17, 2016 by Sachs J. Her Honour reviewed Mr. El Zayat’s grounds for appeal of the Board’s order in some detail and found that the appeal was “manifestly devoid of merit”. She granted the Landlord’s motion, quashed Mr. El Zayat’s appeal and lifted the stay of the eviction order granted by the Board.

[6] In her endorsement, Justice Sachs noted that Mr. El Zayat had failed to pay the rent due as required by the order of Madam Justice Stewart.

[7] On May 19, 2016, Mr. El Zayat delivered a brief note to the Divisional Court office at 2:41 pm requesting a stay of an enforcement order requiring him to vacate his unit by May 24, 2016. He indicated that he has filed a motion to vary Justice Sach’s order quashing his appeal and is currently waiting to schedule a motion date.

[8] As the Divisional Court motion judge this week, I agreed to hear Mr. El Zayat today. Mr. El Zayat has filed no material beyond the May 19th note in support of his request for a stay. Fortunately Mr. Strashin, counsel for the Landlord, was available today and is in attendance on behalf of the Landlord.

[9] It appears from the court file that following Justice Sach’s order quashing Mr. Zayat’s appeal, he brought two motions before the Court of Appeal seeking the appointment of legal counsel for him to be paid for by the state and the transfer of the file from the Divisional Court resp[ectively. Both motions were dismissed by Gillese J.A. on April 13, 2016. The Court of Appeal file was subsequently transferred to the Divisional Court by order of Hourigan J.A. dated April 26, 2016. Mr. Zayat has recently filed a Notice of Motion to vary Sachs J.’s order and a factum in support.

[10] The automatic stay from the Board’s order arises on an appeal. Mr. El Zayat’s appeal has been quashed. The Landlord is therefore entitled to proceed to enforce the Board’s eviction order.

[11] Mr. El Zayat requests a stay of the enforcement of the eviction order against him. As noted, he has filed no materials in support of his request. He relies on his request to vary Sachs J.’s order and submits that the court did not consider all of his arguments and material as to why the Board erred.

[12] The test for a stay of proceedings is set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (SCC). The applicant must establish: 1. There is a serious issue to be tried; 2. In the absence of the stay, the applicant will suffer irreparable harm; and 3. The balance of convenience favours the granting of the stay.

[13] Based on the material before me and the submissions of both Mr. El Zayat and counsel for the Landlord, Mr. El Zayat has failed to meet all of the three tests required for a stay to issue.

[14] First, Mr. El Zayat has not satisfied me that there is a serious issue to be determined on his review motion. In determining Mr. El Zayat’s appeal was devoid of merit, Justice Sachs’ analysed Mr. El Zayat’s grounds of appeal from the Board’s order in detail. Before me, Mr. El Zayat raised the fact that the Board failed to grant him an adjournment for health reasons. Justice Sachs dealt with that ground in her endorsement and determined, correctly in my view, that it did not raise a question of law or procedural fairness.

[15] Nor do I think that Mr. El Zayat will suffer irreparable harm if he is evicted from his unit. He has provided no evidence of any hardship in that regard. His dispute seems to be over the amount of rent. Yet he has paid no rent, by his admission since September 2015. He has known that eviction has been a real possibility at least since the Board’s order in December, 2015. He has had more than enough time to find new accommodations and organise his affairs. As counsel for the Landlord submitted, while it may be inconvenient for Mr. El Zayat to move, it is not irreparable.

[16] Finally, I consider that the balance of convenience clearly favours the Landlord in this case. The Landlord is clearly prejudiced by Mr. El Zayat’s continuing non-payment of rent. Nor is there any suggestion by Mr. El Zayat that he would pay the rent owing pending resolution of his motion. Further, as noted, Mr. El Zayat has filed no evidence of hardship.

[17] Mr. El Zayat has not paid rent since September 2015. Even when he was ordered to pay rent for February and March by Justice Stewart, he did not do so. Yet he now comes before this court requesting its assistance. To the extent the balance of convenience involves a weighting of the equities, the equities do not lie in Mr. El Zayat’s favour.

[18] For these reasons, therefore, Mr. El Zayat’s request for a stay of the enforcement of the eviction order against him is dismissed.

[19] Counsel for the Landlord was required to appear on very short notice. The Landlord is entitled to costs. Although the Landlord filed no material, given the short notice and the length of time the matter took in court, I do not consider counsel’s request for a $1,000 to be unreasonable. Costs to the Landlord fixed at $1,000. Payable forthwith.

L. A. PATTILLO J.

DATE: May 20, 2016