CITATION: Nwabue v. Rojas, 2016 ONSC 7754
DIVISIONAL COURT FILE NO.: 387/15
LANDLORD AND TENANT FILE NO: 59103-15-RV
59103-15
DATE: 20161209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, DAMBROT and RAMSAY JJ.
B E T W E E N :
ROGERS AFAM NWABUE
Appellant (Tenant)
– and –
PATRICIO ROJAS
Respondent (Landlord)
No one appearing for the Appellant (Tenant)
Amelia Yiu, for the Respondent (Landlord)
Sabrina Fiacco and Eli Fellman, for the Landlord and Tenant Board
HEARD: December 6, 2016 in Toronto
M. DAMBROT J.:
[1] After mediation conducted by the Landlord and Tenant Board’s mediation service, which was requested by both the landlord and the tenant, the tenant consented to an order of the Board dated June 25, 2015 (“the order”) terminating his tenancy in the apartment leased from the landlord (“the apartment”) as of July 31, 2015, and evicting him for non-payment of rent. The landlord waived all rent arrears and fees owing by the tenant to him up to June 30, 2015.
[2] The tenant refused to move out of the apartment despite his agreement to do so and instead, on June 27, 2015, he requested a review of the order. On July 29, 2015, the Board refused his request for a review. The tenant appeals to this Court from both orders of the Board.
[3] The tenant filed an appeal book and factum in September 2015, but has made no efforts to set the appeal down for a hearing. On February 26, March 16 and June 10, 2016, counsel for the landlord sent letters by regular mail addressed to the tenant at the apartment, which was the address provided by the tenant to the Divisional Court and the only known address for the tenant, suggesting dates for the hearing of the appeal that were being held open by the Court. In each case, the tenant did not reply. The June 10 letter was also left by hand in the tenant’s mailbox at the rental premises, and a process server made efforts to serve the tenant personally, but was unable to locate him.
[4] On September 1, 2016, the landlord wrote to the tenant suggesting dates for the hearing of a motion to quash the appeal. Once again, there was no response.
[5] On September 14, 2016, the landlord again sent a letter by regular mail to the tenant at the apartment address advising him that, since he had not responded to the earlier correspondence, the motion to quash had been scheduled. The landlord’s motion record, factum and book of authorities were served on the tenant by courier delivery at the apartment on November 7, 2016, and filed in the Divisional Court on November 10, 2016. The notice of motion, which was contained in the motion record, made it clear that the motion was returnable on November 22, 2016.
[6] In his motion to the Superior Court of Justice, the landlord sought an order quashing the appeal as frivolous, vexatious and an abuse of process as being manifestly devoid of merit and as being designed for an improper purpose – to remain in the premises without paying. The motion came on for hearing before Pattillo J. on November 22, 2016. The tenant did not appear. The motion judge was unwilling to dismiss the appeal, but instead, in light of the failure of the tenant to obtain a hearing date, and to respond to the landlord’s efforts to do so, he concluded that “[t]he solution is to fix a date for hearing.” He ordered that the appeal be heard on December 6, 2016, and that the landlord
send notice of the date and this endorsement to Mr. Nwabue by regular mail to his address at 36 Howell Square Scarborough M1B 1C4 [the apartment] and … also slide a copy of the notice at that address, both of which together shall constitute sufficient service of the date to Mr. Nwabue.
[7] On November 23, 2016, the landlord served notice of the date of hearing and the endorsement on the tenant in the manner ordered by the motion judge.
[8] Although the tenant had responded to every earlier piece of correspondence sent to him in the same or a similar manner with complete silence, upon receipt of correspondence notifying him of a hearing date, he sprang into action. On December 5, the tenant faxed a letter to the registrar acknowledging receipt of the landlord’s notice on December 1, 2016. The fax number on the fax suggests that it was sent from Montreal, although he gave no indication of his location in the fax. The tenant objected to the December 6 hearing date on the basis that it “is conflicting with the start date of my Graduate Program Examination at a University Campus almost a thousand kilometers from Toronto. Besides, I could not have prepared for the Hearing and arranged a travel to Toronto within the very short Notice of 4 days.”
[9] In his letter, the tenant acknowledged that he was receiving correspondence mailed to him at the apartment. He said that his incoming mail was temporarily being redirected by Canada Post to his “University Campus” until 2017. He claimed not to have been aware of the November 22, 2016 motion, and insisted that he had not been properly served, while continuing not to disclose his whereabouts. In light of the letter sent to him on September 14, 2016, and the service of the record at the apartment on November 7, 2016, the motion judge was obviously satisfied that the tenant had been adequately served with notice of the November 22 hearing, as am I. If the tenant did not actually come into possession of the landlord’s record, it is because he chose not to do so, and was evading service. In any event, the motion judge denied the relief sought by the landlord, and simply performed the administrative act of fixing a hearing date.
[10] The tenant also claimed in his letter that he had scheduled this appeal for February 18, 2016 and had contacted the landlord’s counsel, who “would not respond to my messages or return the calls.” I note that the tenant has not provided copies of any such correspondence, and the Divisional Court office has no record of an effort by him to schedule the hearing of this appeal for February 18, 2016. By way of contrast, the office does have a record of the efforts of the landlord’s counsel to schedule the appeal on other dates. I am unable to accept this claim by the tenant.
[11] Upon reviewing the tenant’s letter of December 5, the President of the panel hearing the appeal directed that the tenant be told to send some form of confirmation of his conflicting commitment, such as a letter from his university advising of the examination date, as well as a list of alternative dates in December when he could attend for the hearing of the appeal. The Divisional Court Panel Coordinator conveyed this direction to the tenant on the morning of December 6, by telephone, before the time scheduled for the appeal. During their conversation, the tenant indicated that his cell phone was not fully charged but that he would send a fax or email shortly.
[12] Nothing had been heard from the tenant by late in the morning of December 6, and so the Court proceeded to hear the appeal. We did so because it was clear that the tenant had made no effort to set the hearing down for argument, did not provide to the Court an address for service or a means to contact him while he was apparently away from Toronto for an extended period of time, avoided efforts by the landlord over many months to set the appeal down for hearing, had been adequately notified of the motion to quash his appeal, had been served with notice of the date of the hearing fixed by the motion judge, and had provided no acceptable explanation for not appearing on the date scheduled for the appeal. It is plain that the tenant was evading contact and avoiding a hearing, particularly in light of the fact that he had been in possession of the apartment rent-free since April 1, 2015.
[13] After the appeal was disposed of, the panel was made aware that at about the same time as we were considering the appeal, the tenant sent an email message to the Court disclosing, for the first time, that he was in Montreal, and asserting that he was “attending Lectures at the McGill.” He said that he was attaching a copy of one of his graduate program course descriptions, and that his final examinations began on December 6.
[14] The document attached to the tenant’s email provides a description of a 2016 McGill course, including a schedule for the course. There is nothing in the document that confirms that the tenant is enrolled in the course, but assuming that he is, the final examination is a take-home exam, which was to be handed out on December 6 and returned on December 9. Clearly it was not an insurmountable obstacle to the tenant attending court on the date scheduled, particularly bearing in mind that he is about 500 kilometres from Toronto, and not 1,000 kilometres away as he had suggested in his previous correspondence.
[15] Had we received this message before proceeding to consider the appeal, we would have proceeded in any event.
[16] I turn next to the merits of the appeal. The essential basis of the tenant’s appeal as developed in his factum is that after the order terminating his tenancy, he ascertained that the landlord was operating the rental unit in violation of a municipal by-law and as a result the consent order was obtained by misrepresentation. The landlord’s application, he says, was really based on a desire to terminate the tenancy for renovations. He argues that in those circumstances, the landlord was obliged to proceed on that basis and not on the basis of non-payment of rent.
[17] There is no merit to this argument, or this appeal, leaving aside entirely the fact that the order was issued on consent. Even if the landlord did want to renovate the premises, he was perfectly entitled to proceed on the basis of non-payment of rent where in fact the rent had not been paid. Indeed, the tenant remains in the premises to this date, and has not paid any rent since April 1, 2015.
[18] The appeal is dismissed, with costs to the landlord fixed in the amount of $5,000, all inclusive. We are advised that while the effect of dismissing this appeal is to lift the stay of the order terminating the tenancy, the eviction order will not be revived because it has expired on its face. Accordingly we order that the landlord may file this order with the Court Enforcement Office (Sheriff), and that upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the landlord immediately, or as soon as practicable.
Dambrot J.
I agree Molloy J.
I agree Ramsay J.
RELEASED: December 9, 2016
CITATION: Nwabue v. Rojas, 2016 ONSC 7754
DIVISIONAL COURT FILE NO.: 387/15
LANDLORD AND TENANT FILE NO: 59103-15-RV
59103-15
DATE: 20161209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, DAMBROT and RAMSAY JJ.
B E T W E E N :
ROGERS AFAM NWABUE
Appellant (Tenant)
– and –
PATRICIO ROJAS
Respondent (Landlord)
– and –
LANDLORD AND TENANT BOARD
Intervener
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: December 9, 2016