CITATION: El Zayat v. Hausler, 2016 ONSC 6099

DIVISIONAL COURT FILE NO.: 675/15

LTB Files Nos.: TSL- 65966-15, TSL- 66420-15, TST-65667-15

DATE: 20160928

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HAYTHAM EL ZAYAT v. HERTA HAUSLER

BEFORE: NORDHEIMER J.

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] Notice was given by the Registrar, pursuant to r. 2.1.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to Mr. El Zayat that the court was considering making an order dismissing a motion to set aside or vary an order of a judge brought by Mr. El Zayat, on the basis that the proceeding appears to be frivolous, vexatious or otherwise an abuse of the process of the court. Mr. El Zayat was given fifteen days, from receipt of the notice, to file written submissions on these matters, not to exceed ten pages in total. On September 21, 2016, Ms. El Zayat filed a ten page response to the Notice.

[2] Mr. El Zayat had a dispute with his landlord, Herta Hausler. The landlord sought to terminate the tenancy agreement for non-payment of rent. The Landlord and Tenant Board, by order dated December 11, 2015, terminated the tenancy agreement, ordered Mr. El Zayat to pay arrears of rent and ordered that he vacate the leased premises.

[3] Mr. El Zayat brought an appeal to this court from the order of the Landlord and Tenant Board. The landlord sought to quash the appeal on the grounds that it was “manifestly devoid of merti”. The matter came on before Sachs J. By endorsement dated March 24, 2016, Sachs J. quashed the appeal: Hausler v. El Zayet, 2016 ONSC 1991. Sachs J. found that Mr. El Zayat’s appeal did not raise any questions of law. The Divisional Court only has jurisdiction to hear appeals from the Landlord and Tenant Board on questions of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 220. Therefore, Sachs J. quashed the appeal. In reaching her decision, Sachs J. reviewed each of the issues raised by Mr. El Zayat. She found that none of them advanced even an arguable case. In the end result, Sachs J. concluded that the appeal “is manifestly devoid of merit”.

[4] In response to the decision of Sachs J., Mr. El Zayat brought a motion to “set aside or vary” the order of Sachs J. It is this motion that led to the r. 2.1 Notice.

[5] Mr. El Zayat’s appeal was found to be manifestly devoid of merit. This motion is a match for that appeal. There is nothing advanced by Mr. El Zayat that even hints at a basis by which this court would set aside or vary the order of Sachs J. In particular, Mr. El Zayat dos not point to anything that would establish that his appeal raises a question of law which is a prerequisite to the Divisional Court having jurisdiction to hear his appeal. Rather, he simply repeats the arguments that he made in his original appeal and which Sachs J. found were devoid of merit. I view them in precisely the same way.

[6] In the end result, it is clear that the motion to set aside or vary the order of Sachs J. cannot possibly succeed. As such, it amounts to an abuse of the court’s process. I also note that this matter involves a residential tenancy that has long been terminated by the order of the Board. It is desirable, as a general proposition, that there be some finality to these types of dispute. The motion to vary is therefore dismissed. There will be no order as to costs.

NORDHEIMER J.

DATE: September 28, 2016