Haqq v. Mahato, 2019 ONSC 4018

Citation and Court Information

CITATION: Haqq v. Mahato, 2019 ONSC 4018

DIVISIONAL COURT FILE NO.: 275/18

LANDLORD TENANT BOARD NO.: TNL-01365-18 DATE: 20190627

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

KHALID HAQQ

Khalid Haqq, acting in person

Respondent

– and –

PARVEZ LENNY MAHATO

Dan Rosman, Amicus for Parvez Lenny Mahato

Parvez Lenny Mahato, acting in person

Moving Party

HEARD at Toronto: June 27, 2019

Oral Reasons for Judgment

KITELEY, J. (Orally)

Oral Reasons for Judgment

1This is a motion by the landlord to quash the appeal of the tenant from the order of the Landlord and Tenant Board dated March 2, 2018 and the review order dated April 17, 2018. The tenant did not attend on either date, he says because he did not receive any mailed notices. His notice of appeal is dated May 7, 2018.

2The landlord sent a letter to the Court dated November 9, 2018 complaining about the delay in the appeal.

3On October 2, 2018, the Court issued a notice dismissing the appeal unless the tenant filed the transcript by October 23, 2018. The tenant did that but did not perfect the appeal at that time.

4The tenant attended at Divisional Court on May 27, 2019 and filed a certificate of completion and the Court issued a notice of listing for the appeal.

5The landlord prepared his notice of motion to quash the appeal and made it returnable today. The file shows that he attempted by letter and emails to obtain the tenant’s consent to the date and he received no response. The landlord’s affidavit of service indicates he served his factum and motion record by mail.

6The tenant is here but says he did not receive any notice and no material. He had called the Divisional Court on June 25, 2019 to inquire about the appeal and was told by Albert that the landlord had brought this motion. He wants to adjourn so he can be served and respond.

7Amicus lawyer Dan Rosman assisted the landlord. The landlord says the tenant has not served him with any material related to the appeal. He did receive the notice of listing for hearing from the Court.

8The landlord’s motion to quash is based on the failure of the tenant to perfect the appeal and on the failure to pay rent for 20 months. Mr. Rosman says the landlord wants to argue that the appeal is without merit but there is nothing before me.

9Now that the tenant has perfected the appeal, the Court ought not to dismiss for delay.

10The tenant agrees that he has not paid any rent since the fall of 2017 when the landlord started the Landlord Tenant Board proceeding. He has excuses such as deficiencies (which he never pursued) and limited income (being on ODSP). Appeals are not meant to allow a tenant to live rent free for 20 months.

11Even though the tenant says he was not served for this motion, given his admitted arrears, I will make an order requiring him to pay some amount as a condition of hearing his appeal. I accept that he has limited means but the Court cannot tolerate 20 months’ non-payment of rent.

ORDER TO GO:

Order

(1) The appeal will be heard on July 24, 2019 at 10:00 a.m. for no more than 2 hours. We do not have amicus for these matters so you are on your own.

(2) Each party shall send in confirmation form by July 17, 2019. If neither does send it in, then the appeal will still be heard.

(3) The Assistant Registrar is directed to provide to the landlord today, a copy of the appeal book, transcript and factum filed by the tenant. Upon receipt, the landlord has been served.

(4) The landlord shall file responding record, if any, and factum by July 17, 2019 at 4:30 p.m.

(5) The landlord shall serve the documents in paragraph 4 by delivering an extra copy to the Divisional Court by July 17, 2019 at 4:30 p.m. The Tenant shall attend at the Divisional Court on July 17, 2019 after 4:30 p.m. and pick it up.

(6) By July 17, 2019 at 4:30 p.m., the same day of service, the tenant shall pay to the landlord by certified cheque or money order the sum of $5,000.00 as a credit against rent outstanding for 20 months. If the tenant fails to comply with this term, the Landlord may ask the Divisional Court on July 24, 2019 to dismiss the appeal for failure to comply.

(7) Neither party may bring any motion before the appeal is heard.