DIVISIONAL COURT FILE NO.: 110/20 DATE: 20200824

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Olivia Wilkinson Appellant/Respondent on the motion

– and –

Natalie Sekiritsky Respondent/Moving Party

Self-represented Timothy M. Duggan, for Natalie Sekiritsky

HEARD at Toronto by telephone conference: July 20, 2020

Favreau J.

[1] Natalie Sekiritsky, the Landlord, brings a motion to quash this appeal and for an order lifting the stay on evictions to permit the Sheriff’s office to enforce the eviction in this case.

[2] For the reasons below, the motion to quash the appeal is granted. The motion to lift the stay is moot given that the moratorium on evictions came to an end on July 31, 2020.

Background facts

The tenancy

[3] The Landlord owns a rental unit in a condominium building at 12 York Street, Suite 1605, in Toronto. The Landlord bought the unit on March 1, 2018.

[4] Natalie Sekiritsky, the Tenant, has been a tenant in the unit since October 1, 2020. The Landlord took over the lease when she purchased the unit.

[5] The Landlord’s evidence is that the current monthly rent is $2,072.64 per month payable on the first day of each month.

[6] After the Landlord took possession of the unit, she became aware that the Tenant did not reside in the apartment, but, rather, that she was using it for short term rentals. At that time, the condominium agreement allowed for short term rentals in the building.

[7] However, in 2019, the condominium corporation notified condominium owners that it intended to amend its rules to prohibit the sub-leasing of condominiums for short term rentals. The Landlord notified the Tenant of these changes, but the parties were unable to resolve the issue.

[8] The Landlord subsequently received notices from the condominium corporation that she was in breach of the new condominium rules.

The Order of the Landlord and Tenant Board

[9] The Landlord brought an application to the Landlord and Tenant Board to terminate the tenancy based on the Tenant’s violation of the condominium’s rules. The notice of termination was served on the Tenant on November 21, 2019. The Tenant then stopped paying rent as of December 1, 2020.

[10] The hearing before the Board took place on January 31, 2020. The Tenant did not attend the hearing. Following the hearing, on February 4, 2020, the Board issued a decision in which it found that the Tenant operated a short term rental business that interfered with the Landlord’s “lawful right, privilege or interest” because it exposed the Landlord to sanctions from the condominium corporation. In addition, the Board found that the Tenant had not paid her rent since December 1, 2020. Based on these findings, the Board ordered that the Tenancy was to be terminated as of February 15, 2020 and that the Tenant was to pay outstanding rent.

[11] On February 15, 2020, the Tenant requested that the Board review the eviction order, arguing that she was not reasonably able to participate in the hearing. In particular, she claimed that she had been out of the country at the time of the hearing. In a decision dated, February 15, 2020, the Board refused the Tenant’s request to review the eviction order making the following findings:

On the basis of the submissions made in the request, I am not satisfied that the Tenant was not reasonably able to participate in the hearing.

A review request must contain sufficient detail to support at least a preliminary finding that there may be a serious error or that the order or that the Tenant may not have been reasonably able to participate in the hearing. I find that the Tenant’s request lacks sufficient detail.

In the request for review the Tenant alleges that she did not receive the Notice of Hearing as she was “out of the country at the moment” and was sent out after she left.

I note that the Tenant did not make any assertion that she did not receive the Notice of Termination that the Application was based on. It would have been prudent for the Tenant to determine whether further proceedings would ensue, knowing that the Landlord had served her with a Notice of Termination.

The Tenant failed to provide any details regarding the actual dates that she was out of the country or provide any supporting documentation regarding the dates that she was away. Her only assertion was that she was out of the country when the Notice of Hearing was sent.

On the basis of the limited submissions made in the request, I am not satisfied that the Tenant was reasonably not able to participate in the hearing.

Rule 26.8(e) of the Board’s Rules of Procedure state that the Tenant must provide a detailed explanation of how they were not reasonably able to participate in the hearing. This review request lacks such details as the Tenant provides no details as to when she was out of the country.

As stated by the Court in Q Res IV Operating CP Inc. v. Berezovs’ka 2017 ONSC 5541 “[I]f parties are not diligent in dealing with legal proceedings then they cannot demand that a Tribunal waste its resources by rehearing matters a second time. To allow this would undermine the ability of the administration of justice to deliver timely cost-effective and final orders”.

On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

The appeal

[12] By notice of appeal dated February 28, 2020, the Tenant appealed the eviction order and the review decision to the Divisional Court. The notice of appeal states that the Board erred in its application of the law in the eviction order by failing to apply sections 83(1) and 83(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, and that the Board erred in its application of Rule 26.8(e) of the Board’s Rules of Procedure in the review decision. In her notice of appeal, the Tenant claims that her lease explicitly allowed her to use the apartment for short term rentals. In addition, she claims that she was traveling between December 26, 2019 and February 4, 2020, and that she therefore did not receive the notice of hearing dated January 3, 2020.

[13] The commencement of the appeal resulted in an automatic stay of the eviction.

[14] After serving her notice of appeal, the Tenant did not perfect her appeal nor has she paid any rent since she stopped paying rent on December 1, 2020.

Procedure leading up to the motion

[15] The Tenant was originally represented by counsel when she initiated the appeal. However, she chose to represent herself on the motion. In advance of the motion, I convened two case conferences for the purpose of setting a schedule for the exchange of materials and a date for the hearing. Despite being given notice of the case conferences, the Tenant did not participate in either of the case conferences.

[16] After conducting the second case conference, I issued a case management endorsement setting the date for the motion and a schedule for the exchange of materials. A copy of the endorsement was sent to the Tenant.

[17] In support of the motion, the Landlord filed an affidavit in which she sets out the history of this matter, including the Tenant’s failure to pay any rent since December 2019.

[18] The Tenant did not serve or file any affidavit evidence or factum in advance of the motion. However, the day before the motion she sent an email to the Court attaching a document that she claims shows that the Landlord unlawfully increased the rent.

[19] The motion proceeded by telephone conference on July 20, 2020 as scheduled. The Landlord’s lawyer and the Tenant dialed in for the motion. The Tenant did not request an adjournment and she made oral submissions in response to the motion.

Analysis

[20] The Landlord raises the following issues on this motion:

a. Whether the appeal should be quashed on the basis that it is devoid of merit or that it is an abuse of process; and

b. Whether, if the appeal is quashed, the Sheriff’s office should be directed to enforce the eviction.

Issue 1 – whether the appeal should be quashed

[21] The Landlord argues that the appeal should be quashed on two grounds:

a. The appeal is devoid of merit because it does not raise an issue of law; and

b. The appeal should be quashed as an abuse of process because the Tenant’s failure to pay rent demonstrates that the appeal was only brought for the purpose of obtaining an automatic stay of the eviction.

The appeal is devoid of merit

[22] Section 134(3) of the Courts of Justice Act, R.S.O 1990, c. C.43, gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal".

[23] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.

[24] The Landlord’s lawyer argues that the appeal is manifestly devoid of merit because it does not raise a question of law. I agree.

[25] In Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada described the difference between a question of law and a question of fact as follows:

Briefly stated, questions of law are questions about what the correct legal test is; questions of facts are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests.

[26] In this case, the Landlord’s notice of appeal appears to raise two grounds of appeal.

[27] The first ground of appeal is that the Board erred in applying its own Rules in the review decision. The notice of appeal provides no particulars other than to say that the Tenant was away at the time the Board sent the notice of hearing. In its review decision, the Board dealt with this argument and found that the Tenant provided insufficient information about her travels and also found that she should have been aware that she may be subject to a hearing given the service of the notice of termination. This ground of appeal does not raise an issue of law. The Board is entitled to control its own processes in deciding what type of information is required for parties to demonstrate that they were not able to participate in a hearing. In this case, the Board found that the Tenant provided insufficient information and that she had notice that she may be subject to an eviction hearing. These were findings of fact and no appeal lies from these findings.

[28] The second ground of appeal in the notice of appeal is that the Board failed to consider sections 83(1) and 83(2) of the Residential Tenancies Act, 2016 in its eviction decision. The notice of appeal provides no particulars in support of this argument and, as reviewed above, the Tenant did not perfect her appeal nor did she provide any evidence on the motion. In the circumstances, this ground of appeal is devoid of any merit.

[29] To the extent the Tenant also claims in the notice of appeal that her lease permitted her to do short term rentals, her lease also required her to comply with the rules of the condominium corporation. Again, this is not a legal issue, but, in any event, there is no merit to this position.

[30] Beyond the grounds of appeal listed in her notice of appeal, during the hearing the Tenant argued that there was no basis for the eviction because she had made a proposal to the Landlord for resolving the matter whereby the short term rentals could be in the Landlord’s name and the Tenant would manage the rentals. The Tenant argued that, rather than responding to the proposal, the Landlord pursued an eviction thereby depriving the Tenant of an opportunity to come into compliance. Again, this does not raise a legal issue. Faced with a breach of the lease, especially in circumstances that jeopardized the Landlord’s standing with the condominium corporation, the Landlord had no legal obligation to enter into a business deal with the tenant that would allow the short term rentals to continue.

[31] Finally, the Tenant also argued that the Landlord was in breach of her own obligations because she unlawfully raised the rent. This too does not give rise to a legal issue. Whether or not there was an unlawful rent increase is not a question of law, but a question of fact or of mixed fact and law. More importantly, it is an issue that the Tenant could have raised with the Board but it is not an issue to be raised for the first time in response to a motion to quash her appeal.

[32] Accordingly, I find that the appeal is manifestly devoid of merit.

The appeal is an abuse of process

[33] This Court has consistently held that launching an appeal for the sole purpose of obtaining the stay of an eviction in the context of landlord and tenant proceedings is an abuse of process: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.), at para. 4

[34] As was the case in Regan and in Florsham, one of the key indicia that a party is trying to “game the system” is a circumstance where the Tenant persistently fails to pay rent prior to and throughout the appeal period without any explanation for the failure to pay rent or any evidence of an intention to remedy the situation.

[35] In this case, the Tenant has not paid rent since December 1, 2019. At the hearing, when asked whether she would be willing to pay the outstanding rent as a condition of continuing with the appeal, the Tenant advised that she could not pay rent because the COVID-19 pandemic had put an end to her short term rental business. She nevertheless acknowledged that she was subletting the apartment for an amount that is lower than the monthly rent and provided no explanation for not paying that amount to the Landlord.

[36] The Tenant is admittedly not using the apartment as her own residence but rather as part of a short term rental business. As soon as it became evident that she may not be able to continue using the apartment for her business, she stopped paying rent. Her failure to pay rent has nothing to do with any hardship caused by the COVID-19 pandemic but is a clear attempt to avoid making payments she may not be able to recoup through her business. These circumstances are particularly abusive given that the Tenant appears to now sub-letting the premises without paying any rent to the Landlord.

[37] The appeal is a clear abuse of process.

Issue 2 – whether the sheriff should be required to enforce the eviction

[38] By order dated March 19, 2020, Chief Justice Morawetz made an order suspending all evictions in Ontario unless the court ordered otherwise. Accordingly, for the duration of the moratorium, a court order was required to enforce an eviction order. Several cases considered the circumstances under which it would be appropriate to make such an order; see, for example, Chalich v. Alhatam, 2020 ONSC 2569 (Div. Ct.) and Neuman v. Anderson, 2020 ONSC 3518.

[39] At the time of this motion, the Landlord asked that, if I granted the motion quashing the appeal, that I also grant an order requiring the Sheriff’s office to enforce the eviction. One of the challenges with this request was that the landlord had no evidence of urgency or risk to other tenants. In addition, while there was no evidence on this point, as reviewed above, the Tenant disclosed during the motion that there was a sub-tenant living in the apartment. Under the circumstances, I would not have been inclined to make the order requested, but would have dismissed it without prejudice to the request being renewed on a proper evidentiary record.

[40] However, since the hearing, the moratorium on the enforcement of evictions orders was lifted on July 31, 2020: see Attorney General for Ontario v Persons Unknown, 2020 ONSC 4676. Accordingly, this issue is moot and the Landlord is entitled to proceed with the eviction in accordance with the order below.

Conclusion

[41] For the reasons above, I make the following order:

a. The appeal is quashed;

b. The automatic stay of the Board’s decision is vacated;

c. The Landlord may file the Board’s eviction order with the Sheriff on August 31, 2020;

d. The Landlord and the Tenant are to deliver a copy of this decision to the mailbox of the unit as soon as possible after it is received to ensure that the subtenant, if there is one, is aware of the decision; and

e. The Tenant is to pay costs to the Landlord in the amount of $7,000 all inclusive payable within 30 days of today’s date.

[42] These reasons for decision and the order at paragraph 42 are effective on the date they are released. No formal order is required

___________________________ Favreau J.

RELEASED: August 24, 2020

DIVISIONAL COURT FILE NO.:_ 110/20 DATE: 20200824

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Olivia Wilkinson Appellant/Respondent on the motion

– and –

Natalie Sekiritsky Respondent/Moving Party

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: August 24, 2020