Court File and Parties
Divisional Court File No.: 828/21
LTB File Nos. SWL-52700-21 and SWL-52700-21-RV
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: 5 LINWOOD HOLDINGS Respondent/Landlord/Moving Party
AND: melville abraham anD rema abraham, Appellant/Tenant/Responding Pary on Motion
BEFORE: Kristjanson J.
COUNSEL: Delaram Jafari, for the Moving Party/Respondent
Melville Abraham and Rema Abraham, Self represented
HEARD at Toronto by videoconference: October 29, 2021
ENDORSEMENT
1The Landlord, 5 Linwood Holdings, brings this motion to quash the appeal brought by the Abrahams. The Abrahams are tenants. Their tenancy was terminated by the Landlord and Tenant Board (LTB) by Order of September 29, 2021, affirmed by Review Order dated October 8, 2021. The tenants appealed, and the eviction is stayed pending appeal. The landlord moved quickly to bring this motion to quash. The landlord alleges the appeal is completely devoid of merit as no issue of law is raised, and is an abuse of process as the tenants have failed to pay October rent.
2On the motion, the tenants attempted to upload the video hearing recording of the LTB proceeding. They filed a factum referring to what may be issues of law and say that the errors of law are evident in the recording. Given that it has not even been a month since the Review Order was issued, the tenants have just recently obtained the LTB hearing recording and have not yet had the opportunity to prepare transcripts. In the circumstances, I find it would be unfair to proceed with the motion to quash given the haste with which it was scheduled, and the tenants’ stated need for the transcripts to respond. Given the normal time it takes to obtain the hearing recording from the LTB, this is reasonable. The tenants also explain the delay in paying the October rent – the eviction was to take place October 12, the landlord has what they anticipated was the last month’s rent, and there are additional expenses of eviction such as storage.
3The tenants confirm that October rent in the amount of $1,695 is overdue. The landlord confirms that the tenants have paid the outstanding water bill which was in the LTB Order, and no other rent amounts are outstanding.
4I reviewed the following terms with the tenants. I informed them that failure to meet these terms means that the stay of the eviction will be lifted. They are being granted additional time to obtain transcripts but must keep their rent current and move quickly on their appeal.
5As a result I exercise my discretion to order the following:
(1) The appeal is expedited, to be heard for two hours on January 13, 2021, before a panel of the Divisional Court.
(2) The motion to quash is also adjourned to January 13, returnable together with the appeal, on the following conditions:
(a) The tenants are to pay rent of $1,695.00 on the first of the month as it falls due (November 1, December 1, January 1).
(b) The tenants are to pay October rent of $1,695.00 on or before November 20.
(c) The tenants are to provide counsel for the landlord with proof that they have ordered the LTB transcripts of the original hearing, such proof to be provided by e-mail no later than November 6.
(d) The tenants are to perfect the appeal and serve and file their Appeal Book and Compendium, Exhibit Book, Factum, Transcripts and Certificate of Perfection, in accordance with the Rules of Civil Procedure, by December 6, 2021.
(3) If the tenants fail to comply with any of the conditions set out in paragraphs 2(a) through (d) set out above, then the landlord may move before the Court Registrar, by way of affidavit attesting to the tenant’s default, and the Registrar shall issue an Order vacating the stay of the eviction Order of the Landlord & Tenant Board in LTB File Nos. SWL-52700-21 and SWL-52700-21-RV.
Transcripts and the Appeal
6The tenants have obtained the LTB hearing recording. It is now their responsibility to order and pay for transcripts which must be prepared by an authorized court transcriptionist. The Guide to Divisional Court Appeals on the Ministry of the Attorney General website is useful in describing the process of preparing for an appeal, including how to obtain transcripts:
7For a transcript of a court proceeding, the Guide states that a party can obtain a court transcript by accessing the List of Authorized Court Transcriptionists at: https://courttranscriptontario.ca/ and making arrangements directly with an authorized court transcriptionist from the list (including availability to meet timelines, deposits, payment and delivery).
Other Directions Regarding the Appeal
8The respondent landlord will serve and file responding appeal materials by December 24, 2021.
The parties are directed to the court's Notice to Profession- Divisional Court dated February 18, 2021, at: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/div-ct-feb2021/ . Although it is called a Notice to Profession, self-represented parties like the Abrahams must also comply with this Notice.
9Materials are to be uploaded in accordance with section D4 of the Notice to the Profession - Divisional Court. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the section D5 of the Notice to the Profession:
10The parties are reminded to hyperlink the indexes to all documents uploaded to Caselines; to include a signed and entered order from the decision below; and to upload their costs outlines the week before the matter is scheduled to be considered.
11The parties are advised that during oral argument, the court expects them to refer to materials by CaseLines page number, and not by reference to the page number or by tabs in the record.
Kristjanson J.
Release Date: November 1, 2021