CITATION: 1799113 Ontario Ltd. v. Szijjarto, 2017 ONSC 5642
DIVISIONAL COURT FILE NO.: 430/17
LTB NO.: TSL-85569-17 DATE: 20170922
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
1799113 ONTARIO LTD.
Jennifer Croswell, for the Respondent (Landlord)
Respondent on Appeal (Landlord)
– and –
RENATA SZIJJARTO
No one appearing
Appellant on Appeal (Tenant)
HEARD at Toronto: September 22, 2017
KITELEY J. (Orally)
[1] This is a motion by the landlord (respondent on appeal) to quash the appeal by the tenant.
[2] Effective July 1, 2016, the tenant took possession of the unit pursuant to a lease. She was required to pay $1,200 on the first of each month.
[3] As a result of the tenant’s failure to comply with the payment obligation, in May 2017 the landlord served a Form N4: Notice to End your Tenancy for Non-payment of Rent which indicated that the tenant was in arrears of $2,400.
[4] The landlord also served Form N8 to End Your Tenancy at the End of Term on the basis on the basis that she had persistently paid her rent late.
[5] The landlord served From N5: Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding.
[6] On or about May 31, 2017, the landlord filed an application with the Landlord and Tenant Board and served an application to evict for non-payment of rent and a request to terminate based on the N8 and N5.
[7] The hearing was scheduled for July 21, 2017. The tenant attended. The landlord’s representative and the tenant met with a Board certified mediator and then appeared before the Landlord and Tenant Board to report they had a consent. Neither the landlord nor the tenant presented any evidence to the Board because of the consent to an Order. The tenant read out the terms of the Order on Consent to the Board member. The Consent Order provided that the tenant would move out on or before August 1, 2017. It indicated that the tenant owed the landlord $1,200 which represented the amount of rent that landlord had agreed to reduce. Against the arrears, the tenant was required to pay instalments of $200 per month from and including August 2017 to and including January 2018. The Order also indicated that the tenant would pay compensation of $39.45 per day if she failed to vacate by August 1, 2017.
[8] The Consent Order was issued July 24, 2017.
[9] On July 25, 2017, the tenant requested a review which was rejected by the Board on July 26, 2017.
[10] On July 28, 2017, the tenant filed a notice of appeal from the decisions dated July 24 and July 26, 2017.
[11] On July 31, 2017, the Assistant Registrar issued the certificate of stay.
[12] In her Notice of Appeal, the tenant appealed from the Orders dated July 24 and July 26, 2017 and she asserted that she was denied natural justice and procedural fairness by not being able to present her case and not getting full disclosure of the case against her and she asserted that there was an error in law in both Orders.
[13] In her Certificate of Evidence, she indicated that her affidavit would be relied upon as well as the oral evidence of a transcript. When the Certificate of Evidence was served, counsel for the landlord pointed out to the tenant that she had ordered a transcript for a date in July 2016 rather than in July 2017.
[14] In this motion, the landlord asks for an Order quashing the appeal and lifting the stay currently in place because the appeal is frivolous, vexatious and an abuse of process; does not disclose an error of law; the tenant did not seek leave to appeal a Consent Order; and the appeal is manifestly devoid of merit.
[15] The first ground of appeal is that the tenant was denied a hearing. As indicated, she attended at the hearing but, with the assistance of the mediator, she reached an agreement. That is not a denial of natural justice or a denial of procedural fairness.
[16] Pursuant to s. 210 of the Residential Tenancies Act, 2006, an appeal lies on a question of law. No question of law is disclosed in her Notice of Appeal.
[17] Pursuant to s. 134(3) of the Courts of Justice Act, no appeal lies without leave of the court to which the appeal is to be taken from an order made with the consent of the parties. Without finding that s. 134(3) applies to orders of the Landlord and Tenant Board and takes precedence over s. 210 of the Residential Tenancies Act, 2006, the point is that she consented to the Order in July and, in the review of the Board and in this Court, she seeks to be relieved of her consent. Such conduct ought not to be tolerated.
[18] I am satisfied that this appeal is manifestly devoid of merit and should be struck.
[19] On August 29, 2017, the landlord’s motion was served on the tenant. On September 19, 2017, the tenant served counsel for the landlord with a Notice of Abandonment of Appeal and filed it with the Divisional Court on that day.
[20] At the time of the hearing on September 22, 2017, the landlord filed a Supplementary Motion Record which consists of the Affidavit of James Griffin who is a director of the landlord corporation attached to which are a number of exhibits.
[21] The tenant has recently launched an Application on Form T2 and Form T6 with respect to tenant’s rights. In that document, she seeks additional relief.
[22] In the Supplementary Affidavit served today, the landlord seeks additional relief in this Court including a declaration that the tenant is vexatious tenant and an order that she be prohibited from pursuing further appeals and an order that she must discontinue the newly initiated action at the Landlord and Tenant Board.
[23] This Supplementary Affidavit was not served on the tenant. In any event, I would not consider making a declaration that the tenant is a vexatious litigant on this record and I am not persuaded that I have jurisdiction to make the orders prohibiting her from pursuing her claims at the Landlord and Tenant Board.
[24] The landlord asks for costs of the appeal and costs of the motion brought before the Court today. The conduct of the tenant in consenting to an Order, flagrantly not complying with the Consent Order, seeking a review, filing an appeal and obtaining a certificate of stay and abandoning the appeal only after the landlord had taken all steps to bring this motion before the Court, means that the tenant should pay costs.
[25] The conduct of this tenant indicates in the words of my colleague, Corbett J. (see Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.)) that she is “gaming the system”.
[26] Order to go as follows:
(1) The appeal by the tenant from the Orders of the Landlord and Tenant Board dated July 24 and July 28, 2017 is dismissed.
(2) The stay dated July 31, 2017 of the Orders of the Landlord and Tenant Board is lifted.
(3) The Sherriff in the Court Enforcement Office of Toronto shall enforce the Order of the Landlord and Tenant Board and provide vacant possession of Unit 2-607 Kingston Road, Toronto, Ontario M4E 1R3 to the landlord immediately if the landlord has difficulty in recovering possession directly.
[27] Given the email from the tenant to Ms. Croswell dated September 21, 2017 indicating that she has vacated, I make a declaration that the tenant has vacated and that the landlord is at liberty to change the locks and dispose of any personal property left behind and at liberty to enter into a new rental agreement with respect to the property.
[28] The tenant shall pay partial indemnity costs of the appeal and of the motion to quash in the amount of $6,560.95.
[29] The landlord may take out this Order without approval by the tenant.
[30] I have endorsed the back of the Motion Record of the Respondent as follows: “Motion to quash appeal of Tenant from orders of LTB July 24, 2017 and July 28, 2017. For oral reasons delivered this day, motion is granted and other relief”.
___________________________ KITELEY J.
Date of Reasons for Judgment: September 22, 2017
Date of Release: September 22, 2017
CITATION: 1799113 Ontario Ltd. v. Szijjarto, 2017 ONSC 5642
DIVISIONAL COURT FILE NO.: 430/17
LTB NO.: TSL-85569-17 DATE: 20170922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
1799113 ONTARIO LTD.
Respondent on Appeal (Landlord)
– and –
RENATA SZIJJARTO
Appellant on Appeal (Tenant)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: September 22, 2017
Date of Release: September 22, 2017