CITATION: Lou v. Abagi, 2018 ONSC 1587

COURT FILE NO.: DC-17-98-00

DATE: 20180307

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MIN LI LOU and SAN LIN SHAO, Respondents/Landlords

AND:

ANDREW ABAGI, Appellant/Tenant

BEFORE: Petersen J.

COUNSEL: D. Levitt and L.Hernandez, counsel for the Respondents

A. Abagi, appearing on his own behalf

HEARD: March 2, 2018

ENDORSEMENT

1This is a motion by the Respondents Min Li Lou and San Lin Shao (hereafter, the “Landlords”) for an order dismissing and/or quashing the Appellant Andrew Abagi’s appeal from the order of the Landlord and Tenant Board (“LTB”) dated September 12, 2017, which terminated Mr. Abagi’s tenancy in the Landlords’ rental unit effective November 11, 2017 and required Mr. Abagi to move out of the unit on or before that date.

facts

2The Landords entered into an Agreement to Lease their condominium unit to Mr. Abagi on June 11, 2017. The Agreement was for a one month term ending July 11, 2017, with rent payable in the amount of $1,500.00. Mr. Abagi has occupied the unit since June 12, 2017. At the end of the short-term lease agreement, he remained in the unit but did not continue to pay any rent.

3Mr. Abagi submitted during the hearing of this motion that the Landlords had agreed to grant him 6 months of occupancy rent-free in order to avoid litigation of a sexual harassment claim that he had threatened to bring before Small Claims Court or the Human Rights Tribunal of Ontario. There is no evidence in the record to support this submission, which is disputed by the Landlords. Rather, the record shows that the Landlords served Mr. Abagi with Notices to end his tenancy for non-payment of rent (N4 served on July 25, 2017) and because the Landlords required the rental unit for their own use (N2 served on August 10, 2017). Despite these notices, Mr. Abagi did not move out and did not pay any rent.

4On August 10, 2017, the Landlords initiated proceedings to obtain a termination order from the LTB. On the first day of the hearing on September 11, 2017, Mr. Abagi requested and obtained an adjournment to October 25, 2017. Shortly thereafter, that same day, the parties entered into a settlement agreement with the assistance of a mediator. The terms of their agreement were incorporated into a consent order that was issued by the LTB the next day (i.e., September 12, 2017).

5The LTB’s consent order required Mr. Abagi to vacate the rental unit by no later than November 11, 2017, failing which the Landlords could file the order with the Sheriff’s office to enforce his eviction. Mr. Abagi did not leave on the agreed upon date and is still residing in the rental unit. He has not paid any rent since July 12, 2017.

6The Landlords have not been able to evict Mr. Abagi because of a stay of the LTB’s termination order that was automatically triggered by s.25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, when Mr. Abagi’s appeal was filed.

7The Landlords submit that the appeal is devoid of merit and was filed solely for the purpose of obtaining a stay of the LTB’s termination order, so that Mr. Abagi can remain in possession of the rental unit as long as possible without paying any rent. Mr. Abagi takes umbrage to and disputes this submission.

motion MATERIALS AND hearing

8The Landlords served Mr. Abagi with their motion materials the week of February 5, 2018. The motion was originally scheduled to be heard on February 23, 2018.

9Mr. Abagi did not file any responding motion materials. He appeared in court self-represented on February 23, 2018 and requested an adjournment. He stated that his lawyer, Stefan Juzkiw, had failed to perfect his appeal and had failed to prepare and file responding motion materials. He advised the court that he had attempted to retrieve his file from Mr. Juzkiw in order to retain another lawyer to assist him with the appeal. He stated the Mr. Juzkiw was not returning his calls and had refused to release his file, so he complained to the Law Society. He stated that the Law Society was investigating Mr. Juzkiw’s alleged misconduct. He asked for a 30 day adjournment in order to retain and instruct new counsel and file responding motion materials.

10The Landlords questioned the veracity of Mr. Abagi’s submissions, noting that he had appeared without legal representation before the LTB and had filed his own Notice of Appeal, without counsel. They accused Mr. Abagi of making false representations to the court in order to delay the motion hearing and secure more time to reside in their rental unit rent-free.

11Mr. Abagi insisted that he had retained Mr. Juzkiw to represent him in the appeal. He submitted that Mr. Juzkiw had drafted the Notice of Appeal for him, even though it was not signed by Mr. Juzkiw. He was asked to produce a retainer letter, but stated that he did not have one. He showed the Court an email message (on his cell phone) purporting to prove that that Mr. Juzkiw was assisting him with the appeal. The message confirmed that a Certificate of Stay had been filed in the Sheriff’s Office. The sender was identified as an individual named “Art” with a gmail address. I noted that it did not appear to originate from Mr. Juzkiw or Mr. Juzkiw’s office. Mr. Abagi asserted that Art was a member of Mr. Juzkiw’s staff who used a gmail account to communicate with clients. I noted that there was nothing in the message to indicate that the author worked for Mr. Juzkiw.

12Mr. Abagi also read to the Court an email message he claimed to have received from the Intake department of the Law Society. (He did not have hard copies of any of these messages.) The Law Society correspondence simply confirmed that Mr. Abagi’s complaint about Mr. Juzkiw had been received and requested that Mr. Abagi forward additional materials to support his allegations. It did not confirm that an investigation had been commenced in respect of Mr. Juzkiw’s conduct.

13While Mr. Abagi was making his submissions on February 23, 2018, Mr. Hernandez (co-counsel for the Landlords) stepped out of the courtroom and returned to advise the court that he had just spoken via telephone to Mr. Juzkiw, who informed him that he was not and had never been retained by Mr. Abagi in respect of this appeal.

14I had no reason to question the information provided by Mr. Hernandez, an officer of the court, regarding his telephone discussion with Mr. Juzkiw. While Mr. Juzkiw may have assisted Mr. Abagi with respect to the LTB proceeding, I concluded based on the information and evidence before me (including the Notice of Appeal, which Mr. Abagi filed without representation) that Mr. Juzkiw was not retained to represent Mr. Abagi on the appeal. Since Mr. Abagi’s submissions with respect to the purported difficulties that he was experiencing with Mr. Juzkiw were unsupported by any evidence and were contradicted by the information obtained by Mr. Hernandez, I concluded that Mr. Abagi was making misrepresentations to the court in an effort to delay the motion hearing. I therefore denied his request for a 30 day adjournment.

15In the interests of fairness, I nevertheless granted a one week adjournment in order to permit Mr. Abagi to file responding motion materials. A longer adjournment would have been unfair to the Landlords. The hearing was rescheduled to March 2, 2018, peremptory on Mr. Abagi. Mr. Abagi was given until 10:00 AM on March 1, 2018 to serve and file responding materials, more time than is ordinarily required under the Rules.

16Mr. Abagi did not serve or file any responding materials. Instead, he showed up in court on March 2, 2018 with a package of documents purporting to be printed emails and text messages he exchanged with Mr. Juzkiw, staff at Mr. Juzkiw’s office, the Landlords’ son, and the Landlords’ former counsel.

17The documents submitted by Mr. Abagi are not in the form of an affidavit. The messages are truncated. Some of them are undated, none is signed, and none has been authenticated.

18Mr. Abagi claimed to have misunderstood the direction given in my Endorsement dated February 23, 2018. He stated that he thought he was supposed to bring printouts of relevant electronic correspondence to the next hearing date on March 2, 2018. My Endorsement was clear. He was directed to serve and file any responding motion materials in court by 10:00 AM on March 1, 2018. Although Mr. Abagi is self-represented, I find that he has sufficient prior experience and familiarity with court proceedings to know that the Rules require evidence to be submitted by way of sworn affidavit.

19The Respondent objected to the admission of Mr. Abagi’s documents into evidence. Since Mr. Abagi is unrepresented and had filed no other responding materials, I took the unusual step of accepting the documents without an affidavit, but cautioned Mr. Abagi that little or no weight may be given to them, due to their unproven authenticity.

20Having closely reviewed the materials submitted by Mr. Abagi, I make the following observations:

i) One of the documents is a printout of the above-mentioned email message from “Art”, confirming the filing of a Certificate of Stay. This is the same message that Mr. Abagi had shown the Court on his cell phone on February 23, 2018. The printout, however, has a header purporting to indicate that the message originates from Stefan Juzkiw, as well as a standard corporate logo for Juzkiw & Company below the signature line, including the law firm’s address and contact information. The electronic copy of the message shown to the Court did not contain that information, which is precisely why I had expressed doubt about whether the message originated from Mr. Juzkiw’s office. The hard copy submitted by Mr. Abagi on March 2, 2018 appears to have been doctored in order to allay my concerns.

ii) Many of the documents submitted by Mr. Abagi contain the corporate logo for Juzkiw & Company, which includes an email address “@juzkiw.com”. There is nothing in the documentation to substantiate Mr. Abagi’s questionable submission that Mr. Juzkiw and/or his staff use a gmail address to communicate with clients.

iii) Mr. Abagi submitted on both dates of the motion hearing that Stefan Juzkiw was retained to represent him before the LTB but “didn’t show up” on the day of the hearing, so he was “forced” to enter into a settlement with the Landlords. However, the documents submitted by Mr. Abagi contain email correspondence purporting to be between Mr. Abagi and Mr. Juzkiw, in which Mr. Juzkiw advises Mr. Abagi that he is not available on September 11, 2017 for the “tribunal matter” and suggests that an adjournment be obtained. This contradicts Mr. Abagi’s assertion that Mr. Juzkiw was retained to represent him at the LTB hearing but failed to show up.

iv) The documents submitted by Mr. Abagi include an email exchange purporting to be between him and Jason Shao, the Landlords’ son, on June 13, 2017. The message from Mr. Shao advises Mr. Abagi that his parents rented their condominium unit to him “by mistake” without knowing that the condominium corporation’s policy prohibits short term rentals and requires that any lease or tenancy be for a minimum term of 12 months. Mr. Shao does not attempt to negotiate a one year lease with Mr. Abagi, in compliance with corporate policy, but rather confirms that his parents will be moving back into the unit in July 2012. During the motion hearing, Mr. Abagi cited Mr. Sheo’s email message as proof that the Landlords “admitted fault” in respect of their dealings with him. To the extent that the email message proves anything, it is consistent with the Landlords’ position that they gave notice to Mr. Abagi to vacate the premises because they required the unit for their own use. It is not evidence of any admission of fault on their part.

21I find that the materials submitted by Mr. Abagi -- even if I were to give them any weight -- do nothing to support or advance his position in this motion.

Analysis and decision

22Having reviewed all of the materials submitted by the parties, and after reading and hearing the submissions of the parties, I have decided to grant the Landlords’ motion on the following grounds and for the following reasons.

Delay

23Mr. Abagi filed a Certificate Respecting Evidence with his Notice of Appeal, in accordance with Rule 61.05(1) of the Rules of Civil Procedure. His Certificate indicates his intention to rely on his own oral evidence, among other evidence, at the appeal hearing. The parties did not reached an agreement respecting the documents to be included in the Appeal Book or any portion of the transcript of the LTB hearing to be omitted. It was therefore incumbent on Mr. Abagi, pursuant to Rule 61.05(5), to order the transcript of the LTB proceeding and file proof that he had done so within 30 days of filing his Notice of Appeal. He has not complied with this requirement.

24Mr. Abagi is unrepresented but is aware of this procedural requirement because he has initiated similar appeals on at least four prior occasions in respect of proceedings commenced by different landlords. See Mirabella v. Swan and Abagi, order of the Registrar dated June 23, 2014 in court file no. 193/14; Abagi and Skipiwsky v. Melba Apts, order of Justice Campbell dated August 18, 20114 in court file no. 436104; Lingbaoah v. Abagi, 2016 ONSC 3474 and Lee v. Abagi, order of Justice Nordheimer dated June 7, 2017 in court file no. 173/17. In June 2014, his appeal in the proceeding against Ciro Mirabella (court file no. 193/14) was dismissed for delay because he had not filed proof that a transcript of evidence had been ordered within the time prescribed by the Rules.

25Mr. Abagi has also failed to take any steps to perfect his appeal as required by Rule 61.09(1).

26Mr. Abagi submitted that his lawyer, Mr. Juzkiw had promised to order the transcript and perfect the appeal but failed to do so. He argued that he should not be faulted for his lawyer’s alleged incompetence and/or misconduct.

27There is no evidence that Mr. Juzkiw was retained by Mr. Abagi, let alone any evidence that he neglected to provide services for which he was retained. I find that Mr. Abagi’s submissions in this regard are self-serving and not credible.

28Moreover, Mr. Abagi received notice (pursuant to Rule 61.13) of the Landlords’ motion to dismiss for delay in early February 2018. He had time to cure the defects that he attributes to Mr. Juzkiw, but he has not done so and has not sought relief from compliance pursuant to Rule 61.09(4).

29Mr. Abagi’s appeal is therefore dismissed for delay pursuant to Rule 61.13.

Failure to Obtain leave of the Court

30Even if I did not dismiss the appeal for delay, I would grant the Respondent’s request for an order quashing the appeal based on Mr. Abagi’s failure to seek leave. See Morgan v. Whing, 2009 CarswellOnt. 2927 (Div. Ct.), at para.7.

31Section 133 of the Courts of Justice Act stipulates that no appeal lies from a consent order without leave of the court. The LTB termination order that is the subject of this appeal was made on consent of the parties, yet no leave has been obtained (or sought) by Mr. Abagi to bring the appeal.

32Mr. Abagi submits that he was unaware of this requirement. While that may be true, he became aware of the requirement when he was served with the Landlords’ motion materials in early February 2018 and he has made no effort to attempt to cure this defect in the intervening weeks.

33While in other circumstances, I might adjourn a proceeding to permit the Appellant to bring a motion for leave to appeal, in light of the delay outlined above, as well as my findings below, I have concluded that such an adjournment is not appropriate in this case.

Abuse of Process

34I find that the appeal should also be quashed, pursuant to s. 134(3) of the Courts of Justice Act, because it is manifestly devoid of merit and constitutes an abuse of process. See Solomon v. Levy, 2015 CarswellOnt s.599, 2015 ONSC 2556, at para. 34.

35I have concluded that the appeal is manifestly devoid of merit for the following reasons:

i) The grounds for appeal set out in Mr. Abagi’s notice of appeal include “new evidence” unavailable at the time of the consent order. This refers to a change in his circumstances, specifically his anticipated ability to secure new accommodations by November 11, 2017. That change occurred after the date of the consent order. It therefore does not constitute “new evidence” that was in existence but was not before the LTB. There is therefore no merit to this ground for appeal.

ii) Mr. Abagi also lists unfairness in the LTB process as a ground for appeal, based on a claim that the Tribunal denied his adjournment request. There is no transcript of the Tribunal proceeding before me (which is the result of Mr. Abagi’s failure to order the transcript). The only evidence in the record on this point is the uncontested affidavit of Min Li Lou, which establishes that Mr. Abagi was granted his requested adjournment before the parties entered into their settlement agreement on September 11, 2017. I find that this ground therefore also has no merit.

iii) Mr. Abagi lists insufficient time to retain counsel prior to the LTB hearing as another ground for appeal. This ground is also devoid of merit. First, he received notice of the LTB proceeding one month prior to the hearing and therefore had adequate time to retain counsel. Second, he requested and obtained an adjournment of the hearing on September 11, 2017, so he was not unfairly forced to proceed (or forced to settle) without counsel. Finally, the claim that he was not granted sufficient time to retain counsel contradicts his submissions before me on February 23, 2018 and March 2, 2018, to the effect that he had retained Mr. Juzkiw but his counsel failed to show up on the day of the LTB hearing.

iv) Finally, although it was not mentioned in his Notice of Appeal, Mr. Abagi submitted at the motion hearing that the settlement which formed the basis of the LTB’s consent order was unconscionable. He argued that the unfairness of the settlement was the main ground for his appeal. I find that this ground is also devoid of merit. The terms of settlement did not require Mr. Abagi to pay any rent to the Landlords and provided him with two months to secure alternate accommodation and vacate the rental unit. These terms can hardly be characterized as unfair to Mr. Abagi, let alone unconscionable.

36Based on the totality of the evidence before me, I am satisfied that Mr. Abagi’s appeal is without merit. I find that he commenced the appeal for the sole purpose of obtaining an automatic stay of the LTB’s termination order, so that he could remain in the Landlords’ rental unit for as long as possible without paying any rent. I make this finding based on the following factors:

i) Mr. Abagi has occupied the unit since June 12, 2017 but has not paid any rent since July 12, 2017;

ii) Mr. Abagi failed to vacate the premises on November 11, 2017 after agreeing to do so pursuant to a consent order, and he continues to occupy the unit without paying any rent;

iii) Mr. Abagi has not taken any steps to perfect the appeal within the timelines stipulated in the Rules;

iv) The appeal is manifestly without merit;

v) The record establishes that Mr. Abagi has engaged in a pattern of delay throughout this proceeding. He sought an adjournment of the LTB hearing on September 11, 2017. He consented to a termination order the next day, then waited more than 60 days before seeking to file a Request to Review the LTB termination order. He then sought an extension of time for filing his Request to Review an Order, which was denied. He did not file his appeal until six days after the date upon which he had agreed to vacate the premises. When served with notice of the Landords’ motion to dismiss his appeal, he made no effort to file any responding material, then appeared in court on February 23, 2018 seeking a 30 day adjournment based on spurious claims that his lawyer had neglected to order the requisite transcript and perfect the appeal. He was granted a one week adjournment to permit him to file responding materials and he did not do so. His conduct throughout the proceeding reflects delay tactics by an unscrupulous litigant who has been gaming the system for some time.

vi) Finally, it is clear from Mr. Abagi’s oral submissions, from the email communications that he submitted, and from his extensive prior experience with appeals of tenancy procedures that he is familiar with this process. I find that he knew that a stay would result from filing his appeal.

37For all of the above reasons, I conclude that Mr. Abagi filed his appeal for the sole purpose of delay. This constitutes a flagrant abuse of the Court’s processes, which cannot be condoned. See D’Amico v. Hitti, 2012 CarswellOnt 9691 (Div Ct) and Florsham v. Mason, 2015 CarswellOnt 7096 (Div Ct).

orders

38For all of the above reasons, I make the following Orders:

i) The appeal is dismissed and/or quashed.

ii) The stay of the LTB’s termination order dated September 12, 2017 is hereby lifted, such that the Landlords have immediate right to vacant possession of the rental unit. See Solomon v. Levy, supra, at para.35. (I note that Mr. Abagi requested 60 days to vacate the unit in the event that his appeal was dismissed. Such an order would prejudice the Landlords and effectively condone Mr. Abagi’s inappropriate behaviour.)

iii) Mr. Abagi must immediately move out of the rental unit and leave it in a state of reasonable cleanliness and repair, without damage.

iv) If Mr. Abagi does not immediately vacate the rental unit, the Landlords may file the LTB termination order and/or this order with the Court Enforcement Office (Sheriff). The Sheriff is directed to enforce the orders by providing the Landlords with immediate vacant possession of the rental unit on an expedited basis.

v) I hereby dispense with the requirement that the Landlords obtain Mr. Abagi’s approval of the form and content of my orders when they are issued and entered.

costs

39Costs submissions were heard.

40Mr. Abagi requested an order for his costs in the amount of $2,500. He did not provide the Court with any evidence of expenses incurred in connection with this motion or any information relating to this costs claim. Since he did not serve or file any motion materials, there does not appear to be any basis for his costs claim, other than the time he spent self-represented in court on February 23, 2018 and March 2, 2018 (approximately 2 hours). In any event, in light of the Landlords’ complete success in the motion and my findings regarding Mr. Abagi’s improper conduct, I conclude that Mr. Abagi is not entitled to a costs order in any amount.

41I find that the Landlords are entitled to their costs on a substantial indemnity basis. They succeeded with every aspect of their motion. The elevated rate is justified by Mr. Abagi’s inappropriate conduct. The Landlords were required to expend resources in order to bring a motion to dismiss an appeal that was manifestly devoid of merit and was filed solely for the purpose of delay. This abuse of the court’s processes cannot be condoned and should be sanctioned with cost consequences.

42Mr. Levitt, the Landlords’ lead counsel, submitted a Bill of Costs based on substantial indemnity rates. I find that the hours docketed in the Bill of Costs are reasonable for the work performed. In addition to preparation pleadings and affidavit material, the Landlords submitted a detailed factum and extensive book of authorities. The Bill of Costs reflects appropriate delegation of work to more junior counsel. Despite Mr. Abagi’s submission to the contrary, I find that the hourly rates charged are commensurate with counsels’ experience and expertise. I note that there was (appropriately) no charge for the appearance of co-counsel on the hearing dates.

43I conclude that the fees requested by the Landlords are fair, reasonable and proportionate. I therefore order Mr. Abagi to pay the Landlords’ costs on a substantial indemnity basis in the amount of $10,885.00, all inclusive. These costs must be paid within 30 days of this order.

Petersen J.