Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Jayaraj v. Metcap Living Management Inc.
BEFORE: D.L. Corbett J.
HEARD: January 20, 2021
Endorsement
D.L. Corbett J.
1Mr Jayaraj moves for a stay pending review of the decision of Penny J., quashing his appeal and lifting the stay of enforcement of the eviction order of the Landlord and Tenant Board (2020 ONSC 6976). At the conclusion of argument, I dismissed the motion with these reasons to follow. The landlord may forthwith seek enforcement of the eviction order of the Landlord and Tenant Board and the Sheriff is asked to give this eviction priority given the long period of non-payment of rent.
Preliminary Issues
(a) Request to Recuse
2Mr Jayaraj argued that I should recuse myself from hearing this motion because of my involvement in a prior proceeding between him and the City of Toronto in which I dismissed his proceeding and made findings against him. Mr Jayaraj said that I treated him “very rudely” in that prior proceeding.
3Mr Jayaraj raised this concern prior to the hearing today upon learning, that I was scheduled to hear this motion. On direction from Favreau J., court staff advised Mr Jayaraj:
Justice Favreau has made the following direction in response to the issues raised by Mr. Jeyaraj:
Any concern a party has with the presiding judge may be raised with that judge during the hearing.
The prior dealings Mr. Jayaraj says he had with Justice Corbett are not, on their face, a basis for His Honour to recuse himself from adjudicating the motion, but, if His Honour is the presiding judge, it is open to Mr. Jeyaraj to raise the issue with His Honour at the outset of the hearing.
4At the outset of the hearing, I asked Mr Jayaraj to address his objection to my hearing this motion. He began by taking issue with the way in which judges are assigned to hear cases and insisted that I answer his questions about administrative practices about assigning judges. I noted for Mr Jayaraj that the presiding judge runs the hearing, not him, that the process for assigning judges generally was not an issue on this motion, but I did tell him, as a matter of information, how motions in Divisional Court are currently assigned: while this is not relevant to this motion, neither is it a secret.
5During COVID-19, all cases in Divisional Court in Ontario are subject to case management by an administrative judge of the Divisional Court or a designate. In practice, thus far, almost all cases are case managed by me or by Favreau J. as the judges with administrative responsibility for Divisional Court. For cases originating in Toronto, we address most interlocutory issues during case management or, if an interlocutory issue requires a formal motion, we hear them ourselves or assign them to another Divisional Court judge on the basis of availability and workload.
6Mr Jayaraj argued that this process gives rise to an appearance of bias in the assignment of cases and started to describe a process of random computer-generated case assignment that he says is used in India. At that point I cut him off and re-directed him to the matter at hand.
7I then asked him to explain the reason(s) he says that I should recuse myself from this motion. He referred to prior proceedings between him and the City of Toronto which, he says, took place “several years ago” in Divisional Court. He says that, as a result of that experience, he reported me to the Canadian Judicial Council (“CJC”). When the CJC declined to take action on his complaint, he then began legal proceedings against the CJC in the Federal Court of Canada to review the CJC’s decision. He then told me that he became busy with other matters and allowed the Federal Court proceedings to lapse.
8I told Mr Jayaraj that I had no recollection of these events whatsoever and asked him if he could provide me with a copy of the decision I rendered in his prior case. He did not have a copy of the decision available, and I was not able to find it on.
9It is trite law that a judge is not precluded from hearing a matter because a litigant has made a complaint to the CJC about the judge. Otherwise, a litigant could avoid a judge he did not want to hear his case by the simple expedient of making a complaint. In this case, as described by Mr Jayaraj, there is no concern that the complaint was made with this goal in mind – apparently the complaint long pre-dated the motion before me today. However, the underlying principle still applies, and still has important application in the current situation.
10There is no bias in fact (I have no recollection whatsoever of Mr Jayaraj, his prior case, or his complaint to the CJC, and I have no association with any of the parties, their lawyers or their dispute). The presumption of impartiality and that judges will honour their oaths of office is not displaced by the fact of the prior complaint. In this instance, based on the information provided by Mr Jayaraj at the hearing, apparently the complaint was disposed of without the CJC requiring me to respond to the complaint and the complaint is not outstanding.
11The grounds raised by Mr Jayaraj for recusal do not provide a basis for me to recuse myself from this motion and I declined to do so.
(b) Assignment of Cases to Judges
12Mr Jayaraj sought to continue to argue that the system for assigning judges to cases is inherently open to manipulation and bias. There is no foundation for such a challenge in this particular case, and a systemic challenge to assignment of judges could only be pursued on the basis of a factual record adduced by the moving party. Mr Jayaraj seemed to be of the view that he is entitled to examine me, as the presiding judge, on the internal management of the court in order to raise an objection to that management. As I told Mr Jayaraj repeatedly, I was present as the presiding judge to hear his motion, not as a representative of the justice system to answer his questions.
13Mr Jayaraj was not happy with this response, and voiced his unhappiness strongly, and I had to direct him several times, quite forcefully, to turn his attention to the issues at hand on his motion. He did do this, eventually, and we were able to proceed with the hearing of the motion.
Stay Motion
14Penny J. quashed Mr Jayaraj’s appeal for two reasons: (a) there is no extricable question of law raised on the appeal and thus the appeal is beyond the jurisdiction of the Divisional Court; and (b) the appeal is an abuse of process in that Mr Jayaraj has failed to pay any rent since he obtained the statutory stay of the eviction order after having launched the appeal.
15Penny J. found that unpaid rent to the time of the motion was $21,776.24 and that no rent had been paid for about a year. He found that the tenant “has offered no reasonable excuse for his non-payment of rent” in breach of “[t]he most fundamental of tenant obligations” (para. 29).
16The test on a motion for a stay is:
(a) Is there some merit to the proposed appeal (an application of the “serious issue to be tried” test in the context of a stay pending appeal or review)?
(b) Will the moving party suffer irreparable harm if the stay is not granted?
(c) Does the balance of convenience favour granting the stay?
I advised Mr Jayaraj of this test both in an endorsement refusing an interim stay pending this motion and at the outset of the hearing of this motion.
17Although Mr Jayaraj did not address the second branch of the test in his arguments, I did not feel it necessary to ask him about it: I accept it as obvious that he will suffer irreparable harm if