CITATION: Kenyon v. Bielak, 2016 ONSC 6162
DIVISIONAL COURT FILE NO.: 348/16 LTB File No.: TSL-73676-16 DATE: 20160930
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JOHN KENYON
Appellant
– and –
SUZANNE BIELAK
Respondent
Self-represented
Spencer F. Toole, for the Respondent
HEARD at Toronto: September 30, 2016
DAMBROT J. (Orally)
[1] The respondent landlord brings this motion for an order quashing an appeal brought by the tenant appellant.
[2] The landlord entered into an agreement to lease a residential premises at 45 Birch Avenue in Toronto to the tenant for a one-year period commencing on March 1, 2015 at a monthly rent of $3,800.00. During the months of September to December, 2015, the tenant was late in paying his rent. He has still not paid the full rent for November, 2015, and has paid no rent for the months from January to June, 2016. As a result, the landlord initiated proceedings in the Landlord and Tenant Board (the “Board”) to terminate the tenancy, recover arrears and evict the tenant.
[3] At the hearing, the tenant did not dispute the landlord’s evidence concerning his persistent late payments of rent. He restricted his submissions to the reasons that he said that the board should grant him relief from eviction.
[4] On June 16, 2016, the Board ordered the termination of the tenancy on consent, required the tenant to move out of the premises on or before June 30, 2016, required the tenant to pay $22,170.46 in arrears and compensation owing up to that date, less the deposit and interest, required the tenant to pay $124.93 per day in compensation thereafter until he moved out, and to pay costs in the amount of $170.
[5] On July 8, 2016, the tenant filed a request to review the termination order with the Board. The request was refused without a hearing on July 13, 2016. The tenant then filed an appeal to the Divisional Court, dated July 18, 2016, resulting in an automatic stay of the order.
[6] The tenant continues to reside in the premises, has not paid the rent that was outstanding at the date of the termination order or any rent for the period of time since the termination order was made, has not filed proof that a transcript of the evidence has been ordered, and has taken no steps to perfect his appeal within the time prescribed by the rules. As of today, he owes the landlord $33,834.02.
[7] The notice of appeal is generic in nature, and raises no issue that could conceivably provide an understanding of the basis for an appeal, far less an arguable basis. It says that:
The Board erred in making a determination that the appellant was in breach of the lease.
The Board exceeded its jurisdiction.
The Board erred in law in granting the order.
[8] The tenant has filed no responding material on this motion, and in particular nothing that could demonstrate that he has any bona fide ground of appeal. In oral argument, the tenant explained that the only basis for the appeal is that he does not have the funds at present to pay his debt, but he is hopeful that his circumstances will soon change. This obviously provides no comfort to the landlord, and more importantly raises no arguable ground of appeal. I sympathize with the plight of the tenant. I do not doubt that he would like to pay his debt to the landlord and become a tenant in good-standing. Nevertheless, based on the history of this matter, I can only conclude that the appeal to this Court is devoid of merit, and is an abuse of process. It has been filed solely for the purpose of delay in order to permit the tenant to live in the premises rent-free until his circumstances improve.
[9] As a result, the appeal is quashed and the stay of the eviction order is set aside.
COSTS
I have endorsed the Motion Record as follows: “For oral reasons delivered in Court, Order to go as asked. Costs of $5,000.00 to landlord all in. I have signed the Order.”
___________________________ DAMBROT J.
Date of Reasons for Judgment: September 30, 2016
Date of Release: October 4, 2016
CITATION: Kenyon v. Bielak, 2016 ONSC 6162
DIVISIONAL COURT FILE NO.: 348/16 LTB File No.: TSL-73676-16 DATE: 20160930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOHN KENYON
Appellant
– and –
SUZANNE BIELAK
Respondent
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: September 30, 2016
Date of Release: October 4, 2016