Ecuhome Corp v. Darkwa, 2019 ONSC 3546

CITATION: Ecuhome Corp v. Darkwa, 2019 ONSC 3546

DIVISIONAL COURT FILE NO.: 285/19

LANDLORD AND TENANT BOARD NO.: TSL-99731-18 DATE: 20190606

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ECUHOME CORP

Spencer F. Toole, for the Respondent in the Appeal

Landlord/Respondent

– and –

RICHARD DARKWA

Richard Darkwa, acting in person

Tenant/Appellant

Natasha Danson, Amicus for the Tenant/Appellant

HEARD at Toronto: June 6, 2019

KITELEY J. (Orally)

Introduction

1The respondent appeals from the orders of the Landlord Tenant Board dated November 23, 2018 and April 30, 2019. He asks that the orders be set aside and that the matter be remitted to the Landlord Tenant Board. He has brought this motion in which he seeks an order that he be restored to possession of the unit. The motion was served on the afternoon of Tuesday, June 4, 2019 and was returnable in this court on Thursday, June 6, 2019. Counsel for the Landlord has attended today with a responding motion record and a factum and a book of authorities. The Landlord is opposed to the motion.

Background

2The Landlord brought an eviction application before the Board. The Landlord sought to terminate the tenancy due to, amongst other things, an illegal act committed by the Tenant in the residential complex. The hearing was scheduled for November 22, 2018. The Tenant attended but left the hearing. The hearing proceeded in his absence. In the order dated November 23, 2018, the Board found that the Tenant had committed an illegal act in the residential complex on September 8, 2017 by punching another resident in the face twice. As a result, the Board ordered that the tenancy was terminated effective December 4, 2018.

3The Tenant filed a request to review dated December 19, 2018. In it, he stated that he saw duty counsel on November 22, 2018 and had told duty counsel he was not feeling well and could not attend the hearing. He also denied having assaulted anyone on September 8, 2017.

4The Review hearing was scheduled for April 26, 2019. The Tenant was present at the outset of the hearing and had a legal representative. As the review order indicates, the Tenant became visibly irate and exclaimed that the representative did not speak for him. The Tenant left the hearing room abruptly. The Board held the matter down for 30 minutes to see if the Tenant returned but he did not do so and the hearing proceeded in his absence.

5The Board on that occasion did have a copy of a note from the Tenant’s doctor stating that the Tenant has a significant mental illness and requires legal representation as an accommodation. The Board reviewed the circumstances and held that the Tenant had rendered accommodation impossible by dismissing his representative. Under the circumstances, the Board held that it was not possible to accommodate the Tenant’s disability. The Board concluded that the Tenant had abandoned the review request and the order dated November 23, 2018 was confirmed.

6The Tenant received a notice indicating that the Landlord would take possession on May 21, 2019.

7On May 24, 2019, the Tenant attended at the Pro Bono Law office and obtained assistance in preparing the notice of appeal. He would have filed the notice of appeal that day, Friday, May 24, 2019 but he did not have proof of income to support his fee waiver request. He filed the appeal on Monday, May 27, 2019 and the automatic stay order was issued.

8The Landlord took possession of the unit on Friday, May 24, 2019 and I am advised today that the Tenant became aware of that on Saturday, May 25, 2019. When he attended at Divisional Court on Monday, May 27, 2019 to file his notice of appeal and obtain the stay order, he knew the order he sought to appeal had been implemented.

9Mr. Darkwa then went back to Pro Bono Law and was given assistance in the preparation of the motion returnable today. The notice of motion and affidavit were served on the afternoon of Tuesday, June 6, 2019. Counsel for the Landlord, as I say, attended with the representative of the Landlord bringing a responding affidavit, factum and book of authorities.

Analysis

10I turn to the notice of motion on behalf of the Tenant. He asks for an order granting him possession of the rental unit. He asks for a declaration that the certificate of stay issued May 27, 2019 is valid and he asks for an order setting aside the notice to vacate.

11I agree with the submission by the Landlord that the order sought of restoring possession is essentially a request for an interlocutory injunction and therefore the three criteria must be met.

Serious Issue to be Tried

12The Tenant asserts that he was denied the opportunity to participate in the hearing on November 23, 2018 and that hearing resulted in a finding that he had assaulted a tenant in September, 2017. He insists that the assault did not happen.

13I am not persuaded that that is a “serious issue to be tried” because he left the hearing, not only on November 23, 2018 but also the Review hearing on April 26, 2019. That is the most important of his issues and none of the issues raised in his notice of appeal meet the relatively low threshold of “serious issue to be tried”.

Irreparable Harm

14I do accept that having been rendered homeless, he can satisfy the irreparable harm criterion.

Balance of Convenience

15The Landlord argues that the balance of convenience mandates that its obligation to ensure the safe occupation of other tenants has to be taken into consideration. The Landlord’s position is predicated on Mr. Darkwa having assaulted a tenant in September, 2017 and another tenant in April, 2019.

16The Tenant has not been found guilty of either of those. I am sympathetic with the Landlord but I am not satisfied that the legal obligation to other tenants in this case resolves the balance of convenience issue in favour of the Landlord. In my view, the balance of convenience issue is neutral.

17The Tenant cannot satisfy the key issue of “serious issue to be tried”. The motion fails for that reason.

Jurisdiction

18Equally as important however, I am not satisfied that this court has jurisdiction to restore his possession of the unit in the face of a lawful eviction order that was enforced before the notice of appeal was served and the stay order was issued. The authority for that is King-Winton v. Doverhold Investments Ltd., 2016 CarswellOnt. 16046.

Disposition

19The motion by the Tenant for an order that he be restored to possession of the unit is therefore dismissed.

20I have endorsed the Motion Record as follows: “Motion by Tenant for order restoring the Tenant into possession of his residential unit is dismissed for oral reasons given. Because Mr. Darkwa is homeless, he cannot provide an address, phone number or email address. He should attend at the Divisional Court office on Monday, June 17, 2019 and present a copy of this endorsement and he will be given a copy of the typed reasons for decision.”

___________________________ KITELEY J.