Court File and Parties

Citation: Zalcman v. Medicoff, 2018 ONSC 4618 Divisional Court File Nos.: 46/18 and 47/18 LTB File Nos: TNL-98102-17-RV; TNL-98569-17-RV Date: 2018-07-31 Superior Court of Justice – Ontario Divisional Court

Re: Juan Zalcman, Ebe Stivelberg, Respondents in Appeal (Moving Parties) And: Zoë Medicoff, Appellant (Responding Party)

Before: Swinton J.

Counsel: Ian Klaiman, for the Respondents (Moving Parties) No one appearing for the Appellant (Responding Party)

Heard at Toronto: July 25, 2018

Endorsement

Overview

[1] The respondent landlords have brought two motions to quash appeals brought by the appellant Zoë Medicoff (the “tenant”) from orders of the Landlord and Tenant Board (the “Board”) made on December 19, 2017.

The Adjournment Request

[2] The tenant did not appear for the hearing of this motion. On the afternoon before it was to be heard, I received a letter she sent to the court asking for an adjournment of at least 60 days. As this would have been the third adjournment of the motions, the landlords opposed the request, and I ordered that she appear. In her letter, she had mentioned a doctor’s appointment scheduled for the afternoon of the hearing date. I ordered that she appear at 10:00 A.M. to speak to this matter. She did not appear.

[3] I refused to adjourn the motions and proceeded to hear them for the following reasons. The motions were first adjourned by Harvison Young J. on May 9, 2018. On May 31, 2018, Morawetz R.S.J. adjourned the motions on the condition that the tenant pay arrears of rent in the amount of $5,800 within 56 hours and that she pay June and July rent of $1,575 per month on the due dates. He adjourned the motions to July 25, 2018.

[4] The tenant has had plenty of time to prepare for today, and to schedule her appointments so as to respect the date assigned for these motions. She informed Harvison Young J. on May 9, 2018 that she was seeking counsel. The adjournment to May 31, 2018 was peremptory to her and with or without counsel. She still does not have counsel.

[5] I note that on at least two occasions, the appellant did not appear before the Board to speak to her own applications. The fact that she did not appear for these applications or before this Court on this motion is part of a pattern of behaviour that shows disrespect for the proceedings.

[6] Moreover, it was reasonable for the landlords to request that these motions proceed, given that there is no order in place requiring the tenant to pay rent as it comes due or face eviction. Given the tenant’s past failure to pay rent on a timely basis, the landlords have a legitimate interest in having these motions determined.

File 47/2018 (Board File TNL-98102-17-RV)

[7] On February 27, 2017, the landlords applied for an order to terminate the tenancy and evict the tenant because she had been persistently late in paying rent. The application was granted on February 27, 2017 (TNL-90049).

[8] The tenant requested a review, which was granted on September 14, 2017 (TNL-90049 Review Order). The Board found that the tenant had been consistently late in paying rent; that the parties agreed that arrears of $2,505 were owing; and that in the circumstances, given the tenant’s health issues and assurances that the tenant’s mother would assist in paying rent on time, it was not unfair to grant relief from eviction. The Board set out certain conditions, most importantly that the tenant pay the arrears on or before September 18, 2017. If she failed to meet any of the conditions, the landlords could move ex parte before the Board pursuant to s. 78 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) for an order terminating the tenancy and evicting the tenant.

[9] The tenant failed to pay the arrears as ordered. The landlords obtained an order from the Board on October 5, 2017 terminating the tenancy and ordering the tenant evicted (TNL-98102). The tenant then filed a motion to set aside the order, which was heard on November 6, 2017. She did not appear, and the Board dismissed the motion as abandoned (Second TNL-98102 Order).

[10] The tenant then sought a review of the second order. On December 11, 2017, the Board heard the application de novo. The tenant appeared with a representative. The Board found that that the landlords met the criteria in s. 78(1) of the Act for obtaining the ex parte order pursuant to s. 78(1). The reasons state that the tenant conceded that she breached the order by not paying the arrears. The Board concluded it would be unfair to set aside the order in the circumstances, where the earlier order had been made on consent, and where the tenant had been paying her rent late for 4 years. However, the Board stayed the eviction until February 28, 2018.

File 46/2018 (Board File TNL-98569-17-RV)

[11] The landlords also commenced an application for an order to terminate the tenancy and evict the tenant on the basis that she had wilfully or neglectfully caused undue damage to the premises. The hearing took place November 20, 2017, but the tenant did not attend. The Board found that she had wilfully caused damage to the closet doors and the ceiling of the unit and ordered her to pay $1,352.17 for the cost of repairing the damage. The Board ordered the tenancy terminated and the tenant evicted after December 1, 2017 (TNL-98569 Order).

[12] The tenant sought a review of the order, and a hearing de novo occurred on December 11, 2017, at the same time as the hearing described above. The Board again found that the tenant had damaged the property and ordered her to pay compensation of $1,753.08. The Board terminated the tenancy, but stayed the eviction until February 28, 2018 (TNL-98569-17-RV).

The Motions to Quash

[13] A single judge of the Divisional Court may quash an appeal that is manifestly devoid of merit or an abuse of the process of the court (Shields v. Lancelotte, 2016 ONSC 4433 (Div. Ct.) at para. 21).

File 47/2018 (Board File TNL-98102-17-RV)

[14] With respect to File 47/2018 (Board File TNL-98102-17-RV), I am satisfied that the motion to quash should be granted. The Notice of Appeal states that the Board erred in law by improperly interpreting s. 78(11) of the Act. It then states that the Board failed to consider the totality of circumstances by ordering the appellant evicted at that time.

[15] An appeal lies to the Divisional Court only on a question of law (see s. 210(1) of the Act). Subsection 78(11) of the Act deals with the orders that the Board may make if the respondent, here the tenant, brings a motion to set aside an order terminating the tenancy. The Board may set aside the order if satisfied that having regard to all the circumstances, it would not be unfair to set aside the order.

[16] It is apparent from the Board’s reasons that the Board considered this provision and determined that it would be unfair to set aside the earlier order. It noted that the September 14, 2017 order with respect to the payment of arrears had been on consent, and it took into account the tenant’s history of late payment of rent.

[17] That decision is an exercise of discretion by the Board, based on a consideration of the evidence and the circumstances before it. In my view, the Notice of Appeal does not raise a question of law, and is, therefore, manifestly devoid of merit.

[18] I am also of the view that the appeal is an abuse of process, pursued in order to obtain the benefit of the automatic stay of the eviction order. The tenant did not pay rent for four months after commencing the appeal, until ordered to do so by Morawetz R.S.J. on May 31, 2018. While she has paid rent for June and July, there is currently no order in place requiring her to pay rent on an ongoing basis. Given her past conduct, it is unlikely she will continue to pay rent on time, as the Board found in its December, 2017 decision.

[19] Moreover, the tenant has not taken steps to prosecute this appeal in a timely manner. Although there is a certificate indicating that she had ordered the transcripts in the court file, she states, in her letter of July 23, 2018 requesting the adjournment, that the monies paid to her lawyer to obtain the transcript have been returned to her as of March 27, 2018. She indicates that she will be ordering the transcripts in the future. She is well out of time to do so, and the delay in obtaining transcripts is further evidence of an abuse of process.

[20] I understand that the appellant has health problems, and her finances are limited. However, when all the circumstances are considered, this appeal is without merit and an abuse of process. For that reason, I would quash the appeal in Court File 47/2018 and lift the stay of the eviction order.

File 46/2018 (Board File TNL-98569-17-RV)

[21] With respect to File 46/2018 (Board File TNL-98569-17-RV), the first ground of appeal - that the Board did not properly apply s. 83 of the Act - does not raise a question of law. Rather it is a challenge to the Board’s refusal to exercise its discretion with respect to ordering eviction. It is clear that the Board considered the surrounding circumstances in reaching its conclusion that it would not be unfair to order eviction after February 28, 2018.

[22] The Notice of Appeal also states that the Board did not consider ss. 20(1) (the landlord’s responsibility to repair) and 23 (landlord not to harass), and the tenant is of the “genuine belief” she has been denied natural justice and discriminated against by the Board because of disability, and the Board did not acknowledge her observance of religious holidays.

[23] With respect to her allegation of harassment by the landlords (s. 23), I note that she has brought a separate application with respect to this claim seeking an abatement of rent. In that application, she also raises allegations that there has been an interference with her practice of her religion. That application is currently before the Board, and a hearing has commenced. I fail to see how these allegations in the Notice of Appeal raise an error of law by the Board in the present proceeding.

[24] To the extent that the appellant claims a denial of natural justice because of the admission of photographs into evidence, I note that she was represented at the hearing, and her representative could have objected. I fail to see how the admission of the photos could amount to a denial of natural justice.

[25] With respect to s. 20(1), the appellant appears to take issue with the Board’s findings of fact with respect to undue damage to the property, rather than raise an issue of law.

[26] In my view, the Notice of Appeal does not raise any extricable questions of law and is devoid of merit.

[27] Moreover, considered in light of the surrounding circumstances, this appeal is also an abuse of process. In particular, the failure to pay rent following the Board’s decisions until ordered to do so by the Court on May 31, 2018 demonstrates that this appeal, and the accompanying appeal, were launched in order to obtain the benefit of the automatic stay of the eviction order. In addition, the lengthy and ongoing delay in ordering the transcripts is also evidence of abusive behavior, as is the appellant’s failure to take this Court’s proceeding seriously. Accordingly, I would grant the motion to quash this appeal as well.

Conclusion

[28] The motions to quash the appeals are granted in Court Files 46/2018 and 47/2018. The landlords seek costs of $7,000 on a partial indemnity basis, which would include the $750 fixed by Harvison Young J. In my view, these costs are reasonable. For convenience, the amount of costs is split between the two motions.

[29] An Order is to go with respect to the motion in each court file as follows:

1. The appeal is quashed.
2. The stay of the eviction order of the Board is lifted.
3. The tenant’s approval of the form and content of a draft order is dispensed with.
4. Costs of the motion are payable to the landlords in the amount of $3,500.00.

Swinton J.

Released: July 31, 2018