DIVISIONAL COURT FILE NO.: 013/21
DATE: 20210322
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Anna Bon
Respondent/Moving Party
– and –
Shannon Hutchens
Appellant/Responding Party
Timothy M. Duggan, for the Moving Party
R. Trent Morris, for the Responding Party
HEARD at Toronto by videoconference: March 18, 2021
Introduction
1Anna Bon, the Landlord, brings a motion to dismiss this appeal as an abuse of process or, alternatively, to require Shannon Hutchens, the Tenant, to pay outstanding rent pending the hearing of the appeal.
2The Tenant has paid no rent to the Landlord since September 2019. At the time the Board made its order, the Tenant owed over $25,000 in rent. By the time of this motion, she owed over $30,000. For the purposes of this motion, she has only agreed to pay monthly rent starting March 2021, with no payments for the outstanding rent owing.
3For the reasons below, the appeal is dismissed as an abuse of process and the stay pending appeal is lifted.
Background
4The Landlord and the Tenant entered into a lease in July 2014 for a rental unit in Toronto. The monthly rent was $1,600 per month. The Tenant moved into the unit on August 1, 2014.
5The Landlord increased the rent to $1,628.88 in 2018 and to $1,660 in 2019. There is a dispute over whether the Tenant received notice of this last rent increase and the Board resolved this issue in the Tenant’s favour.
6The Tenant did not pay the disputed rent increase as of June 2019 and stopped making any rent payments in September 2019.
7In September 2019, the Landlord served the Tenant with a notice that the tenancy would be terminated for non-payment of rent if the Tenant did not pay outstanding rent. The Tenant did not pay the outstanding rent.
8In February 2020, the Landlord commenced an application to the Landlord and Tenant Board to evict the Tenant for non-payment of rent. The hearing was initially scheduled for May 21, 2020 but was rescheduled to November 3, 2020 due to the COVID-19 pandemic.
9The Tenant attended the hearing on November 3, 2020 with her father.
10At the beginning of the hearing, the Tenant requested an adjournment for the purpose of getting legal representation. The Board gave the Tenant an opportunity to speak to duty counsel but did not grant the adjournment, given the lengthy period of unpaid rent and the delay in scheduling the hearing.
11During the hearing, the Tenant indicated that she wanted to raise issues about the state of the rental unit and other matters. It was undisputed that the Tenant did not serve her documents in support of these issues five days before the hearing as required by the Board’s Rules. Under the circumstances, the Board gave the Tenant the option of paying the outstanding rent in trust, postponing the hearing of the Landlord’s application, and having the Tenant’s issues and Landlord’s issues heard together at a later date. The Tenant did not agree to this proposal.
12At the conclusion of the hearing, the Board gave the Tenant the opportunity to make submissions pursuant to section 83 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, as to whether the eviction should be denied or delayed, but the Tenant made no submissions on these issues.
13On December 23, 2020, the Board released its decision ordering the Tenant’s eviction. The Board found that the Landlord did not prove the rent increase on a balance of probabilities, and therefore found that the monthly rent was $1,628.88. The Board ordered that the Tenant could void the eviction by paying $26,169.13 by December 31, 2020 or $27,798.01 by January 3, 2021. If the Tenant did not void the eviction order by paying the outstanding rent, the Tenant was required to vacate the unit by January 3, 2021, failing which the order could be enforced by the Sheriff’s office starting on January 4, 2021.
14Following the issuance of the Board’s decision, the Tenant did not make any outstanding rent payments.
15The Tenant commenced an appeal to the Divisional Court on January 3, 2021, which resulted in an automatic stay of the eviction order. The notice of appeal alleges many errors in the Board’s decision, including that the Board erred in not granting an adjournment, in not giving the Tenant an opportunity to raise her own issues about the tenancy and in failing to dismiss the application on the basis that the Notice to Terminate for Non-Payment was incorrect because it stated the incorrect amount of monthly rent.
Analysis
16The two issues on this motion are whether the appeal should be quashed as an abuse of process or, alternatively, whether the court should order the Tenant to pay the outstanding rent as a condition of proceeding with the appeal.
17I find that the appeal is an abuse of process, and that it should be dismissed on that basis.
18Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.
19This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye, at para. 27.
20In this case, the Tenant persistently failed to pay her rent and has shown no intention of remedying the situation. As reviewed above, the Tenant stopped making any rent payments in September 2019. During the hearing before the Board, she was given an opportunity to pay her outstanding rent in trust, after which the Board would hold a joint hearing where she could raise her issues about the tenancy, but she refused this offer. Following the hearing, the Tenant had an opportunity to void the eviction order by paying the outstanding rent, but she made no payments. In advance of this motion, the Tenant’s counsel sent a cheque to the Landlord’s counsel for the March 2021 rent and advised that his client would be willing to pay ongoing rent but not any rent arrears. During the hearing before me, I gave the Tenant an opportunity to agree to pay at least some of her outstanding rent, but she refused to do so
21The Tenant has also provided no reasonable explanation for her failure to pay any rent for eighteen months. The Tenant appears to justify her refusal to pay outstanding rent on the basis of allegations that the Landlord refused to make various repairs, that the rental unit and building were unsafe and did not conform to various safety requirements and that the Landlord allowed noisy activity to occur outside and in the downstairs unit. While these issues may justify rent abatement or other remedies, the landlord and tenant regime is not a self-help regime. The Residential Tenancies Act, 2006 gives tenants different avenues for obtaining relief against Landlords who fail to meet their obligations. However, persistently failing to pay any rent is not one of those avenues. In any event, it is hard to imagine that any of these issues would lead to 100% rent abatement and the Tenant’s counsel was not able to show me any authority that would support such a finding.
22Whether an appeal has merit appears not to be relevant to the issue of whether the appeal is an abuse of process: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 (Div. Ct.), at para. 25. In any event, in this case, the appeal appears to have little or no merit. The focus of the Tenant’s appeal is on issues of procedural fairness, including an argument that the Board should have granted an adjournment or an opportunity for the Tenant to raise her issues about the tenancy. The Board is entitled to control its own process and, in this case, provided a reasonable rationale for refusing the adjournment. The Board also made an uncontested finding of fact that the Tenant did not serve documents in support of her claims against the Landlord within the required timelines, but gave the Tenant the option of proceeding with those issues and the Landlord’s application together at a later date on condition that the Tenant pay her outstanding rent in trust. This approach was both justified and fair to the Tenant.
23In my view, the Tenant’s persistent failure to pay any rent from September 2019 to February 2020, despite opportunities to make outstanding payments and raise her issues against the Landlord, demonstrate that the Tenant was “gaming the system”. This appeal is a clear abuse of process.
Costs
24The Landlord seeks costs of $9,908.28 on a partial indemnity basis. I have reviewed the Landlord’s bill of costs and find that some of the time claimed is excessive, given the nature of the issues on the appeal and the motion. I am awarding costs of $7,500.00 all inclusive, which in my view is reasonable in all of the circumstances of this case.
Conclusion
25For the reasons above, the motion is granted and I make the following order:
a. The appeal is quashed;
b. The automatic stay of the Landlord and Tenant Board’s decision is lifted;
c. The Tenant is to vacate the rental until by no later than March 31, 2021, failing which the Sheriff can be asked to enforce the eviction order as of April 1, 2021; and
d. The Tenant is to pay the Landlord’s costs in the amount of $7,500 within 30 days.
___________________________ Favreau J.
Released: March 22, 2021
CITATION: Bon v. Hutchens, 2021 ONSC 2076
DIVISIONAL COURT FILE NO.: 013/21
DATE: 20210322
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Anna Bon
Respondent/Moving Party
– and –
Shannon Hutchens
Appellant/Responding Party
REASONS FOR JUDGMENT
FAVREAU J.
Released: March 22, 2021
