Citation and Court Information
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Bains v. 1958484 Ontario Inc.
COUNSEL: Mr Bains, self-represented Tenant / Appellant Brian Shiller, for the Landlord / Respondent
BEFORE: D.L. Corbett J.
CASE MANAGEMENT ENDORSEMENT
1This endorsement reflects a case management conference held on October 26, 2020.
2The Landlord and Tenant Board granted an eviction order and found the appellant owed rent arrears of $28,000 through to January 31, 2020. The tenant filed a notice of appeal and obtained a stay of the eviction order on February 5, 2020.
3The tenant took no further steps to perfect his appeal. On March 9, 2020, the Registrar gave the tenant notice that the appeal would be dismissed if it was not perfected by March 26, 2020. On March 17, 2020, regular court operations were suspended because of COVID-19. The tenant has taken no further steps respecting his appeal since March 2020. The landlord’s counsel advises that the rent arrears have not been paid, and no further rent has been paid since the order of the Landlord and Tenant Board. The landlord’s counsel advises that current rental arrears now stand at $62,028.50. The tenant was not satisfied that the debt is quite this large but agreed that rent had been accruing and had not been paid since around August 2019, at a rate of $4,500 per month, which means that the amount owing would be at least $60,000.
4If this was not enough, the notice of appeal is, itself, woefully inadequate. It seems the tenant used a notice of appeal used in a prior appeal to the Court of Appeal in an unrelated case, without changing the grounds of appeal. I quote, in full, the grounds set out for this appeal:
THE GROUNDS FOR THE APPEAL are as follows:
(a) The trial judge erred in failing to find actual or constructive malice;
(b) The trial judge erred in finding that the publication of the defamatory communication was an occasion of qualified privilege;
(c) The trial judge failed to find that the defendant exceeded the occasion of qualified privilege;
(d) The trial judge ignored post-publication evidence that demonstrated malice and exceedance (sic) of qualified privilege;
(e) The trial judge erred in finding that some of the contents of the defamatory letter constituted fair comment;
(f) The trial judge misdirected himself on the law of qualified privilege and malice;
(g) Such further grounds as counsel may advise.
5It seems apparent on its face that this appeal is an abuse of process and that the tenant has been gaming the system to live rent-free to the detriment of the landlord. However, appearances can be deceiving, and the tenant must be given a chance to respond to these circumstances. On the other hand, the tenant must pay rent if he is to stay in the premises. Balancing the interests at stake, order to go:
(a) That the tenant pay to counsel for the landlord, in certified funds, money order or cash, by 5:00 pm, October 29, 2020, the sum of $12,000.00, to be credited towards the tenant’s rental obligations to the landlord;
(b) That the tenant pay to counsel for the landlord, in certified funds, money order or cash, by 5:00 pm on the first business day of each month, commencing November 2, 2020, the sum of $6,000.00, to be credited towards the tenant’s rental obligations to the landlord;
(c) That the tenant serve an amended notice of appeal stating a proper ground of appeal in this case, and full particulars of all grounds of appeal advanced by the tenant in this case, by November 13, 2020;
(d) That the tenant serve all of the materials on which he relies in support of his appeal by December 11, 2020;
(e) That the tenant provide proof of payment required by (a), above, to the court by email, by 9:00 am, October 30, 2020; and
(f) That this case management teleconference is adjourned to October 30, 2020, at 1:00 pm, to confirm that the payment required in paragraph a. has been made, and to give any further directions that may be required in this case.
6If the tenant defaults on the payment obligation set out in paragraph 5(a), above, the court intends to lift the stay of the eviction order of the Landlord and Tenant Board on October 30, 2020. If the tenant defaults on the payment obligations set out in para. 5(b), above, the landlord may move, on short notice, returnable by teleconference, for an order lifting the stay of the eviction order of the Landlord and Tenant Board.
7If the stay of the order of the Landlord and Tenant Board is lifted pursuant to paragraph 6 above, the landlord may move to quash the appeal, or for such other terms as are just, on notice to the tenant, returnable before an administrative judge of the Divisional Court by teleconference.
8Counsel for the landlord indicated that his client asks the court to order that all rent arrears be paid as a condition of the stay continuing pending the appeal. I am satisfied that the payment order made today is sufficient to require the tenant to decide whether he will pursue his appeal in good faith: he will have paid $12,000 towards arrears and will be paying roughly $1,500 per month towards arrears, in addition to current rent. A tenant who does not intend to try to stay in the premises for the long-term, and does not intend to pay arrears, would be unlikely to pay the landlord $18,000 within the next week and $6,000 per month thereafter. The order was made at a case management conference, on the basis of the uncontroverted information provided by the parties about the state of rent payments, and the landlord has not been put to the expense or delay of a formal motion to quash the appeal – nor does the landlord face the same uncertainty and delay that would follow an order quashing the appeal (a potential review motion and subsequent appeal). The order is interlocutory, imposed on the basis of fairness to both parties for the continuation of the appeal, and reasonably balances the interests of the parties and fair process issues in a proportional way.
9The tenant explained that he has been delayed in bringing his appeal because his telephone was ‘stolen’ by the landlord in March 2020 (I did not call on counsel for the landlord to address this allegation during this teleconference and accept as true, for purposes of this teleconference only, that the tenant has been without his phone since March 2020, and that the phone contained important information for the tenant). Also, as a result of this incident, the tenant says he does not have ready access to funds in his bank account in the ordinary course, because all his banking information was on his phone. I have explained to the tenant that the record properly before this court is the record that was before the Landlord and Tenant Board and that is something the tenant should be able to obtain from the Board, with or without his phone. The tenant advised that there is new evidence he wishes to present on his appeal. If that is the case, and if he has lost this evidence because he no longer has his phone, then he should have re-assembled this evidence long before now. It passes all credibility that the tenant would not have restored his ability to access his bank accounts in the intervening six months, whatever may have happened to his phone last March.
10As I explained to the tenant during the teleconference, appeal rights are substantive rights, and the court will not terminate a viable appeal without good reason. On the other hand, tenants may not buy an extensive period of rent-free occupation of their residence, at the expense of the landlord, simply by initiating an appeal. Arrears must be paid down and ongoing rent must be paid if the tenant wishes to stay in possession pending his appeal.
11This endorsement is effective from the time that an unsigned copy of it is released to the parties by email from the court. A signed copy of the endorsement will be provided to the parties by email in due course.
D.L. Corbett J.
Date: October 26, 2020