Court File and Parties
COURT FILE NO.: 398/19
DATE: 20230321
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
BETWEEN:
ABDULKADIR ELMI MOHAMED
Appellant
– and –
TORONTO COMMUNIITY HOUSING CORPORATION
Respondent/Moving Party
COUNSEL:
No one appearing for the Appellant
Katie Douglas, for the Respondent/Moving Party
HEARD: March 16, 2023
REASONS ON MOTION
Schabas J.
Overview
[1] The Toronto Community Housing Corporation (“TCHC”) seeks to enforce an order to evict Abdulkadir Elmi Mohamed (“Mohamed”) from an apartment owned by TCHC which Mohamed occupies as a tenant. Enforcement is complicated by the passage of time, in part caused by a moratorium on evictions due to the COVID-19 pandemic, which has raised issues of jurisdiction and whether a Court order issued on May 21, 2021 authorizing Mohamed’s eviction continues to be effective. For the reasons that follow, I conclude that there is a valid order authorizing Mohamed’s eviction and direct that the order be enforced by the issuance of a writ of possession to TCHC.
Background
[2] TCHC provides housing to more than 110,000 tenants, the vast majority of whom are low-income, at rental rates that are subsidized according to the tenants’ income. The demand for housing at TCHC is very high. At the end of 2021, there were 78,789 households on the waitlist for subsidized housing in Toronto.
[3] Mohamed is a tenant of TCHC. Although he has in the past been eligible for subsidized housing, he appears to no longer be eligible for reduced rent based on his income. In any event, as set out below, he has failed to pay the full amount of even his reduced rent for many years.
[4] On June 11, 2019, the Landlord Tenant Board (“LTB”) issued an order evicting Mohamed from the unit he occupies, 317 – 407 Gerrard Street East in Toronto, due to rental arrears. At the time, Mohamed owed TCHC $16,498. On July 11, 2019, Mohamed appealed the LTB order to the Divisional Court, causing it to be stayed; however, he did not advance his appeal and on May 21, 2021 D.L. Corbett J. dismissed the appeal and ordered that TCHC “may file this Order with the Sheriff's Office in order to carry out eviction of the Appellant from the leased premises” (the “Order”).
[5] Enforcement of the Order was delayed until May 2022 due to a moratorium on evictions by TCHC during the COVID-19 pandemic. The moratorium ended in April 2022. TCHC filed the Order with the Toronto Enforcement Office (the “TEO”) on May 3, 2022, but was advised by the TEO that it would not execute the Order as the TEO took the position that the Order was not filed in time to carry out the eviction before the Order expired.
[6] On May 6, 2022, TCHC applied to the Superior Court for an order extending the time to enforce the Order. However, on May 13, 2022, Vermette J. declined to extend the Order, suggesting that the Superior Court did not have jurisdiction as the Order was made by the Divisional Court. Subsequently, on July 14, 2022, TCHC brought this motion in the Divisional Court seeking leave to issue a writ of possession based on the Order of May 21, 2021.
[7] In November 2022, when this motion first came before the Court, jurisdictional issues were raised by D.L. Corbett J. and the case was adjourned to permit TCHC to address those issues in both a supplementary motion record and a supplementary factum.
[8] Mohamed participated in two appearances on this motion in November 2022 and was involved in scheduling the hearing held before me on March 16, 2023. He was also served with all the materials, including the supplementary materials. However, Mohamed has filed no responding materials and did not attend the hearing on March 16, 2023. After waiting 30 minutes, the hearing proceeded in his absence.
[9] Mohamed now owes TCHC over $42,000 in rent arrears.
Issues
[10] TCHC makes three arguments to support its request for relief:
(i) the TEO was in error in treating the Order as expiring one year after it was issued, pursuant to Rule 60.10(3) of the Rules of Civil Procedure, as the Order was not a writ of possession and ought to have been accepted and enforced by the TEO;
(ii) in the alternative, as no writ of possession has been issued, the Court can and should now issue a writ of possession based on the Order of May 21, 2021; and
(iii) in the further alternative, if the Order has expired this Court should apply Rule 2.03 to extend the Order, so that it can be enforced by the TEO.
Does Rule 60.10 apply to the Order?
[11] Rule 60.10 states:
60.10 (1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made.
(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
(3) A writ of possession remains in force for one year from the date of the order authorizing its issue, and may, before its expiry, be renewed by order for a period of one year from each renewal.
[12] Rule 60.10(1) refers to the issuance of a writ of possession in Form 60C. Form 60C is quite specific. It directs a sheriff or enforcement officer “to enter and take possession of land” and “to give possession” of the land to another party. It contains space for the writ to be renewed by order of the court as contemplated by subsection (3) of Rule 60.10.
[13] The court’s Order of May 21, 2021 stated that Mohamed’s appeal from the LTB order was dismissed and ordered that TCHC “may file this Order with the Sheriff's Office in order to carry out eviction of the Appellant from the leased premises.” It is this Order that is relied on by TCHC, which is not a writ of possession in accordance with Form 60C. The Order has no provision limiting the time during which it may be enforced and therefore, presumptively, it is valid until set aside.
[14] Put against this interpretation is the legislative intent found in the Residential Tenancies Act, 2006, SO 2006 c 17 (“RTA”) and Rule 60.10(3) suggesting that eviction orders should be enforced promptly, and that landlords should not sit on their rights. For example, s. 81 of the RTA provides that “an order of the Board” evicting a tenant expires “six months after the day on which the order takes effect if it is not filed within those six months with the sheriff who has territorial jurisdiction where the rental unit is located.” Section 85 of the RTA provides that “[a]n order evicting a person shall have the same effect, and shall be enforced in the same manner, as a writ of possession.” A writ of possession, issued under Rule 60.10(3), is in force for one year, but may be renewed, yearly, before its expiration date.
[15] It is significant that neither of these time limits is rigid or final. The six-month deadline for filing an LTB order does not mean an eviction order must be executed within six months, or at any time; it simply means that it must be filed with the sheriff within six months. Similarly, a writ of possession, which can be based on an LTB order, if issued, can be renewed repeatedly, so long as it is renewed on a timely basis in accordance with the Rules.
[16] A somewhat analogous issue arose in Re Municipality of Metropolitan Toronto and Bremner (No. 2), 1980 1605 (ON CA). At that time, Rule 568 of the Rules of Practice (the predecessor to the Rules of Civil Procedure) contained a one-year time limit for enforcing a residential writ of possession issued in accordance with Form 122. In Bremner, however, pursuant to a judgment of the County Court, writs of possession were obtained in accordance with forms under the Landlord Tenant Act, RSO 1970, c. 236 (“LTA”), which did not contain an expiration date. Nevertheless, the writs of possession were not enforced as the sheriff took the position the writs expired after one year in accordance with Rule 568.
[17] The Court of Appeal disagreed with the sheriff. It drew a distinction between writs issued under the LTA and under Rule 568, noting differences in the forms under each regime, including the one-year limitation period that was specifically included in Form 122 as prescribed by Rule 568. As the writs had not been issued under the Rules of Practice in accordance with Form 122, the Court held that the writs had not expired and remained enforceable.
[18] Here the distinction is between an eviction ordered by the LTB and one issued by the court. Section 81 of the RTA imposes a time limit on orders of the LTB, but not on court orders. Although s. 85 says that an order evicting a tenant “shall have the same effect, and shall be enforced in the same manner, as a writ of possession”, this is addressing orders of the LTB. Accordingly, as the Order in this case is issued by a court and does not contain a time limitation it is, like all court orders, valid unless or until it is set aside.
[19] I am advised that TCHC does not usually obtain writs of possession because the TEO enforces eviction orders as if they are writs of possession. This appears to be the practice elsewhere: see, e.g., Sunrise North Senior Living Ltd. v. Regional Municipality of York (Sheriff), 2019 ONSC 2678, at paras. 16 -22, which raised the question of whether an LTB eviction order is subject to the temporal limit in Rule 60.10(3) but did not decide the issue. However, as the TEO treats eviction orders as if they are writs of possession, it applies the time limit on writs of possession to eviction orders, as it did in this case.
[20] The practice of the TEO in treating eviction orders like writs is efficient and sensible. It suits TCHC and landlords not to be required to obtain writs of possession in order to enforce an eviction. It also makes sense, consistent with s. 85 of the RTA, for the TEO to give an LTB eviction order the same time-limited effect as a writ of possession. This gives effect to the legislative intention that landlords should move promptly once an eviction order has been obtained.
[21] In its amended notice of motion, TCHC seeks an order “declaring that the one-year time limit that applies to writs of possession under section 60.10 of the Rules of Civil Procedure…does not apply to LTB eviction orders and/or Divisional Court orders granting vacant possession following an unsuccessful appeal of a Board eviction order.” I decline to go that far, nor is it necessary or desirable to do so. Rather, in the circumstances of this case, which involves the enforceability of an order of this court, it is sufficient to conclude that the Order remains valid and can form the basis for a motion for leave to obtain a writ of possession under Rule 60.10, which I address below.
Should the Court issue a writ of possession?
[22] In its original notice of motion, TCHC simply sought “an order for leave to issue a writ of possession on the basis of an order of this court issued May 21, 2021.” In my view this is the appropriate relief, still contained in the amended notice of motion, and the order should be granted.
[23] Rule 60.10 does not place any time limitation on when such a motion can be brought, so long as there is a valid order entitling a party to possession. It facilitates the issuance of a writ of possession without further notice following the obtaining of an order entitling possession, which is a prerequisite to obtaining a writ. As Shaw J. stated in Gauthier v. White 2019 ONSC 7336 at para. 16:
A writ of possession, itself, does not determine a right of possession. The purpose of the writ is to direct the Sheriff to enforce an order that, separately from the writ, has determined the right of possession.
[24] In many cases, where the writ is sought based on an LTB order, the writ must be issued within six months as the order only lasts that long by operation of s. 81 of the RTA. But in this case, following an appeal, the underlying Order is from this Court, and remains valid.
[25] I have considered the possibility that the Order, which is made as part of an order dismissing an appeal from the LTB, should be interpreted narrowly to reinstate the order of the LTB of June 11, 2019, and therefore a writ ought to have been sought within six months of the Order. However, an appeal may take more than six months, and in this case paragraph 2 of the Order provides specifically that it, and not the LTB order, may be filed and relied upon by the Sheriff’s Office to carry out the eviction.
[26] Any concern about fairness to tenants not being surprised by an eviction well after an order has been made can be addressed by a judge on a motion under Rule 60.10. The issuance of a writ of possession is discretionary. The court can have regard to the equities of the situation, as it does, for example, in cases involving relief from forfeiture under s. 98 of the Courts of Justice Act. See, e.g., Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363 at paras. 86-92. The court can also consider the length of any delay and the reason for it.
[27] In this case, the interests of justice favour the issuance of the writ. Mohamed has failed to pay the required rent to TCHC for many years. His rent was subsidized for a time based on his income, but the evidence suggests he can now afford to pay market rent. He has fallen behind in both circumstances. He continues to occupy an apartment in publicly-funded housing, which creates unfairness to the thousands of people who are waiting for subsidized housing.
[28] Mohamed delayed his eviction in 2019 by filing an appeal which he did not pursue. He was then the beneficiary of the TCHC moratorium on evictions caused by the pandemic until May 2022, following which TCHC has moved, with notice to Mohamed, to enforce the eviction. Mohamed has been allowed him to remain in the apartment for almost four years since the LTB order was made, during which he has continued to fall behind on his rent. While he participated in these proceedings in the fall of 2002, he did not appear to oppose this motion.
[29] In short, the equities all favour TCHC and there is no basis to relieve Mohamed of the effect of eviction.
Application of Rule 2.03
[30] In light of my conclusion that Rule 60.10 applies to permit the issuance of a writ of possession based on a valid court Order, it is not necessary to apply Rule 2.03 to avoid any time limitations. Furthermore, as no writ of possession has yet been issued, the issue of whether to waive the requirement of renewal of a writ within one year is not applicable.
Conclusion
[31] Leave is granted to issue a writ of possession for the premises occupied by Mohamed pursuant to Rule 60.10. TCHC does not seek costs and no costs are awarded.
Paul B. Schabas J.
Released: March 21, 2023
COURT FILE NO.: 398/19
DATE: 20230321
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
ABDULKADIR ELMI MOHAMED
Appellant
– and –
TORONTO COMMUNIITY HOUSING CORPORATION
Respondent/Moving Party
REASONS ON MOTION
Schabas J.
Released: March 21, 2023