CITATION: Zalcman v. Medicoff, 2018 ONSC 6637

DIVISIONAL COURT FILE NO.: 46/18 & 47/18

LANDLORD & TENANT BOARD FILE NOS. : TNL-98102-17-RV & TNL-98569-17-RV

DATE: 20181107

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

JUAN ZALCMAN and EBE STIVELBERG

Respondents on motions /Landlords

– and –

ZOE MEDICOFF

Moving party/Tenant

Ian Klaiman, for the respondent/ landlords

John David Ekpenyong, for the moving party/tenant

HEARD at Toronto: November 2, 2018

c. horkins J.

introduction

Introduction

1Zoe Medicoff (the “tenant”), brings a motion in two files for an order granting an extension of time to file a notice of appeal from the final order of Swinton J. dated July 31, 2018. The tenant filed one notice of motion for both court files.

2As a judge of the Divisional Court, Swinton J. quashed the tenant’s appeals of two orders of the Landlord and Tenant Board (the “Board”). She found that the appeals were manifestly devoid of merit, did not raise a question of law and were an abuse of the court’s process.

3The first Board order, made on December 11, 2017, allowed the landlords’ request to evict the tenant and stayed the eviction until February 28, 2018.

4The second Board order required the tenant to pay the landlord $1,753.08 in compensation for the damage she had caused to the rented premises (“the unit”). The Board terminated the tenancy and ordered the tenant’s eviction after December 1, 2017. On review, the tenant’s eviction was stayed to February 28, 2018, the date of the first order.

5Pursuant to s. 6 (1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the tenant may appeal an order of the Divisional Court to the Court of Appeal, with leave, on a question that it is not a question of fact alone. Under rule 3.02(3), an order extending time prescribed by the rules and relating to an appeal, may only be made by “a judge of the appellate court”. In this case that means that the order must be made by a judge of the Ontario Court of Appeal.

6At the outset of the hearing of this motion, I asked the tenant to respond to the landlords’ position that the Divisional Court does not have jurisdiction to hear the motions. In a letter dated October 18, 2018, counsel for the landlords asked the tenant’s counsel to withdraw the motion, given s. 6 of the Courts of Justice Act and rule 3.02(3). He refused to do so and took the position that the tenant has a right of appeal without leave to the Divisional Court. This is not correct.

7I advised the tenant that I was dismissing her motions based on s. 6 (1)(a) of the Courts of Justice Act and rule 3.02(3). The landlords advised the court that they were seeking terms of the dismissal.

8The tenant then told the court that she was proceeding with a motion to set aside Justice Swinton’s order and asked that I proceed, as if such a motion had been brought. I refused this request. No such motion was before the court. To state the obvious, a notice of motion with a motion record must be served in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relief must be articulated so the responding party knows the issue being raised and the relief sought.

terms of the dismissal

Terms of the Dismissal

9The landlords ask that in addition to dismissing the motions, the court make the following orders:

(1) An order prohibiting the tenant from commencing any further proceedings in Court File Nos. 46/18 and 47/18 unless:

(a) she first obtains an order giving her leave to proceed. Such leave must be granted from the court in which she is proceeding and leave must be on notice to the landlords; and

(b) the tenant must pay the landlords the costs of $7,000 (ordered by Swinton J) and $1,753.08 in compensation that the Board ordered.

10It is the landlords’ position that these orders are necessary to control the tenant’s abuse of the court process and her frivolous and vexatious conduct.

11Swinton J. has already found that this tenant’s conduct is an abuse of the court’s process. The tenant’s conduct following Swinton J.’s decision is further evidence of this behaviour.

12Given the seriousness of the tenant’s conduct, it is important to review in some detail the depth of the problem.

The Board Orders

The Board Orders

13Swinton J. reviewed the Board orders in question as set out in paras. 7-12 of her decision:

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 tenant appeals/ motions to quash

The Tenant Appeals / Motions to Quash

14The tenant appealed the Board orders.

15The landlords brought motions to quash the appeals, which were first before the court on May 9, 2018. The tenant appeared seeking an adjournment on two grounds: (a) she was experiencing another flare up of her chronic medical condition (Crohn's disease); and (b) she stated that she was "in the process" of retaining a lawyer. Justice Harvison-Young adjourned the motion to May 31, 2018, peremptory, with or without counsel.

16The motions came before the Regional Senior Justice Morawetz on May 30, 2018. The tenant appeared and requested a further adjournment on the basis that, amongst other things, she had a medical appointment in the afternoon, a decision appeared to be pending for legal aid, and the tenant was in possession of a bank draft in the amount of $5,800.00 payable to the Minister of Finance (equal to the then arrears of rent). The court granted an adjournment to July 25, 2018, on the following conditions: (a) within 56 hours, a bank draft was to be provided to the landlords in the amount of $5,800.00, (b) the tenant pay June and July 2018 rent of $1,575.00 per month on their due dates. The tenant paid the amounts in accordance with this order.

17On July 24, 2018, at 12:49 p.m., the day before the hearing of the motions, the tenant emailed Mr. Klaiman (the landlords’ lawyer), asking for another adjournment request, and attaching a letter that she had sent to the Court (without the landlords' consent). The tenant’s reasons for the adjournment request included that she wanted to retain counsel, and that she had an appointment with her family doctor at 1:30 p.m. on July 25, 2018. Her letter also indicated that monies paid to her prior lawyer to obtain the transcripts for the appeal had been returned to her as of March 27, 2017, but that she would be ordering the transcripts in the future.

The motions to quash

The Motions to Quash

18As set out in Swinton J.’s endorsement, she received the tenant’s letter requesting an adjournment the day before the hearing of the motions. This was the tenant’s third adjournment request and it was refused. The court ordered her to attend the next day on the motions. At paras. 4-6 the court stated:

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.

19The motions to quash proceeded on July 25, 2018 before the Swinton J. and the tenant did not appear.

20Swinton J. quashed the appeals, lifted the stay of evictions and ordered the tenant to pay the landlords costs for each motion in the sum of $3,500 (totaling $7,000). The appeals did not raise a question of law and they were manifestly devoid of merit. Swinton J. also concluded that the appeals were an abuse of process, pursued in order to obtain the benefit of the automatic stay of eviction order, and that the tenant had not taken steps to prosecute the appeal in a timely manner. At para 27, the court stated:

… 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 decision 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 behaviour, as is the appellants' failure to take this Court's proceedings seriously.

21The cost orders totaling $7,000 remain unpaid.

The Eviction and Police Intervention to Remove the Tenant

The Eviction and Police Intervention to Remove the Tenant

22Following the orders of Swinton J. quashing the appeals, the landlords proceeded with the tenant’s eviction. On September 7, 2018, at about 10:00 a.m., the Sheriff attended at the unit and evicted the tenant.

23On Saturday, September 8, 2018, at some point in the morning, Mr. Zalcman, one of the landlords, went to the unit, opened the door and heard a dog barking. He immediately realized that the tenant had somehow gained entry into the unit. He went to the lobby and called the police. While waiting for the police, he went back to the unit at about 2:00 p.m. He opened the door and the tenant was still there. Mr. Zalcman told her to leave, and eventually when the police arrived, she left with her dog and a big bag.

24On Sunday, September 9, 2018, Mr. Zalcman again attended at the unit at about 8:00 a.m. When he opened the door, the tenant was inside. It appeared that she had spent the night in the apartment, again trespassing. Mr. Zalcman told the tenant that she had been evicted and that she had to leave. The tenant left the unit.

25On Monday, September 10, 2018, the tenant was again found in the unit. Mr. Zalcman called the police and the officer asked that the tenant be given until Wednesday, September 12, 2018 at 8:00 p.m. to leave, so she could have extra time to remove her belongings. Mr. Zalcman agreed and left.

26On Wednesday, September 12, 2018, at about 8:00 p.m., Mr. Zalcman knocked on the door of the unit. He discovered that the tenant had not left and was in the unit with her mother. Once again Mr. Zalcman had to call the police. The tenant refused to return the keys and leave before the police came.

27On Thursday, September 13, 2018, at about 1:30 a.m. two police officers attended at the unit and had to remove the tenant again. They advised her to take her prescriptions, monies and identifications, as her 72 hours to remove her items had long expired. Mr. Zalcman changed the locks on the unit a second time and left. Later that morning, he went back to the unit and noticed that the tenant had been inside the unit during the night, because she had removed items left behind. Mr. Zalcman realized that the tenant must have been accessing the unit through the neighbour's balcony. As a result, he put two locks on the balcony door.

28On Friday, September 14, 2018, Mr. Zalcman was notified that the tenant was at the unit with a locksmith changing the locks to the unit. Mr. Zalcman rushed to the unit and called the police. Two police officers removed the tenant for the third time. Mr. Zalcman changed the locks for a third time.

29Since September 14, 2018, the tenant has not returned to the unit. Mr. Zalcman’s affidavit explains that the tenant left the unit in a deplorable condition with significant destruction and neglect.

Further Landlord Tenant Board Proceedings

Further Landlord Tenant Board Proceedings

30On September 13, 2018, the tenant commenced another application before the Board seeking reinstatement in the unit and an immediate hearing. In her application, the tenant set out the basis for her request. She falsely described the circumstances.

31The tenant misled the Board. Her application contains many false statements. She states that the landlord is refusing her access to the unit and that the “landlord cannot use the order from the Board as it is currently in Appellate Court”. She also states that her eviction was not legal because the “matter is not fully determined”. This is all false. The Board order is not “currently in Appellate Court” and the appeals were finally determined when they were quashed by Swinton J. The tenant’s appeals were quashed on July 31, 2018. From that order, the tenant has no automatic right of appeal (see s. 6 (1)(a) of the Courts of Justice Act and rule 3.02).

32If the tenant had wanted to seek leave to appeal, she had to file a notice of motion seeking leave to appeal the order of Swinton J. with the Ontario Court of Appeal. This motion had to be filed 15 days after Swinton J’s order. The tenant did not file a motion for leave to appeal and the time for doing so has expired.

33The tenant can no longer file a motion for leave to appeal unless she brings a motion and obtains an order from the Court of Appeal that extends the time to file her motion for leave to appeal. She has not done so.

34The test for whether an extension of time should be granted requires the court to look at the merits of the appeal and leave motion (Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131). In this case, the tenant’s right to appeal the Board orders was on a question of law only. Swinton J found that neither appeal raised a question of law and the appeals were quashed.

35On the record before me, I see no merit to an appeal and no basis on which leave to appeal would ever be granted. The tenant has not even identified a ground of appeal that she would rely on, assuming she obtained an extension of time to file a Notice of Motion for Leave to appeal and was actually granted leave. As stated in Bajouco v Green, 2017 ONCA 493 at para. 24 a final decision of the Divisional Court acting in its appellate capacity is “intended to be final and review of those decisions is the exception to the general rule”.

36The tenant also falsely states in her application that she was “illegally” locked out of the unit:

The Landlord should not have been able to file or execute the sheriff as there is a stay. Therefore, I was illegally locked-out (I will include texts from my lawyer, Daniel Trombley stating to that she also served the Landlord's lawyer but she still went ahead and executed the sheriff.

Please order IMMEDIATE reinstatement.

37The Board relied on the tenant’s false statements, granted an expedited hearing for September 26, 2018 and made an interim order dated September 14, 2018 that: (a) the Landlord shall not rent the unit to anyone else until the application is heard or until the Board orders otherwise, and (b) the Landlord should not sell or otherwise dispose of the Tenant's belongings until the application is heard or until the Board orders otherwise.

38This tenant’s application came before the Board on September 26, 2018. The tenant did not attend, despite her request to expedite the application. The hearing was once again rescheduled to November 16, 2018.

39On September 14, 2018, the tenant commenced another application against Mr. Zalcman alleging that Mr. Zalcman entered the unit illegally, on September 4, 2018, without warning. In this application, the tenant asks the Board to award an abatement of rent of $1,575.00 for "psychological damages and illegal behaviour". This application is scheduled to be heard November 23, 2018.

40This application is also premised on false information. First, the tenant did not have the right to be in the unit. The eviction order was valid and she had already been removed from the unit by the police. The tenant kept returning to the unit when she had no right to do so.

41The landlord never entered the unit on September 14. Mr. Zalcman gave the tenant 24 hours’ notice of an inspection by posting it on the door. He knocked on the door, but the tenant would not allow him to enter, even though she was illegally in the unit. The tenant has produced alleged text messages that she had with her former lawyer. According to these messages the landlord never entered the unit. The text states that the landlord was at the door, but tenant did not answer the door.

42The landlords signed a lease dated September 11, 2018 to lease the unit to their son, Martin Zalcman ("Martin"), for a year term with rent of $1,200 per month. Martin has been diagnosed with chronic fatigue syndrome and fibromyalgia. Martin is 28 years old and currently lives with his parents. He spends much of the day in bed, often in pain, and has difficulty functioning in his daily life and with holding a job. His parents' intention is to have Martin live in the unit, which will enable his parents to provide him with care and assistance (financial and otherwise), but they hope it will also encourage his growth and independence. Martin has yet to move into the unit, because the landlords are in the course of repairing the substantial damage that the tenant caused.

43This lease was signed before the issuance of the Board order on September 14 that restricts the landlords’ right to rent or sell the unit to anyone else pending the hearing of the tenant’s application. This order was issued based on the false information that the tenant filed with the Board.

44It is the obligation of the court to control the process. Clearly, orders are required to control the tenant’s continuing abuse of the court’s process.

45The history of the applications before the Board, the tenant’s conduct before the court, her repeated illegal entry into the unit and false representations to the Board, all demonstrate that her conduct is a continuing abuse of the court’s process that Swinton J. described in her decision.

46The tenant continues to manipulate the process before the Board and the Court to try and gain access to the unit from which she has been legally evicted. She continues to have no respect for Board and Court orders. She makes false allegations against the landlords to try and secure orders against the landlords. Unfortunately, she has obtained orders from the Board based on her false allegations, to the detriment of the landlords. The tenant has not paid the costs that Swinton J. ordered or the damages that the Board ordered her to pay the landlords.

47The tenant has described herself as a person who has been admitted to the University of Toronto. She clearly knows that she has no legal right to remain in the unit. Her conduct is abusive and prejudicial to the landlords. The landlords legally had the tenant evicted. They have the legal right to assume possession of their unit and sign a new lease with a new tenant. The tenant’s conduct has interfered with their right to do so.

conclusion

Conclusion

48In summary, the tenant’s motions before this court were an abuse of the court’s process. In proceeding with her motions, the tenant ignored s. 6 of the Courts of Justice Act and rule 3.02 (3) of the Rules of Civil Procedure. She refused to withdraw her motions even when these provisions were brought to her counsel’s attention. This is an abuse of the court’s process.

49The orders that I make are reasonable and necessary given the tenant’s conduct. The landlords asks that I restrict the tenant’s ability to proceed in this court and the Court of Appeal. The orders that I am making are restricted to the Superior Court of Justice including the Divisional Court. If the tenant seeks to proceed before the Court of Appeal, that court can make orders that are necessary to address the tenant’s abuse of the court’s process in the Court of Appeal.

50The landlords are entitled to costs. Counsel’s Costs Outline shows that costs on a full indemnity basis total $10,040.05 and on a substantial indemnity basis total $8,999.32. In a letter delivered on October 18, 2018, the landlords’ counsel brought s. 6 of the Courts of Justice Act and rule 3.02(3) to the attention of the tenant’s counsel. He asked that the motions be withdrawn and clearly stated that if the motions were not withdrawn the landlords would seek full indemnity costs. The letter explained that the landlords wanted to avoid the costs of responding to the tenant’s motions. The tenant refused to withdraw her motions and insisted that she had a right to appeal Swinton J.’s order without the need to seek leave. As a result of this unreasonable and incorrect position, the landlords were forced to incur the expense of responding to her motions. Given the extensive history and the recent abusive conduct, the landlords had to prepare a lengthy affidavit to ensure that the court had a full record of what has transpired. Considerable time was spent in court addressing the issue of terms of the dismissal and what was required to address the tenant’s continuing abuse of the court’s process.

51The landlords are entitled to a significant costs award. I fix the costs of the motions at $4,500 for each court file, for a total cost award of $9,000 all inclusive.

52I make the following orders:

1. Zoe Medicoff’s notice of motion dated October 12, 2018 in Court File Nos. 46/18 and 47/18 is dismissed.

2. Zoe Medicoff shall not commence any further proceedings in Court File Nos. 46/18 and 47/18, in the Superior Court of Justice including the Divisional Court, without first obtaining leave of this court to proceed. Any motion for leave shall be on notice to the landlords. If Zoe Medicoff fails to pay the landlords the costs ordered by Swinton J., the costs ordered by this court and/ or the $1,352.17 compensation order of the Board, this shall be a factor that the court will consider on a motion seeking leave.

3. If Zoe Medicoff takes any steps before any Court and/or the Landlord and Tenant Board, in relation to the landlords, Juan Zalcman and Ebe Stivelberg and the unit located at 150 Sudbury Street, Suite 1406, Toronto, Ontario, she shall provide such court or Board with a copy of these reasons.

4. Zoe Medicoff shall pay the landlords costs of the motions fixed at $4,500 all-inclusive for each court file (46/18 and 47/18) for a total of $9000 all-inclusive, payable no later than November, 30, 2018

5. Approval of the orders as to form and content by Zoe Medicoff is dispensed with.

___________________________ C. Horkins J.