CITATION: Homesky Properties Inc. v. Sugunan, 2024 ONSC 1365

DIVISIONAL COURT FILE NOS.: 405/23, 472/23, 710/23, 720/23 and 024/24

DATE: 20240306

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

BETWEEN:

HOMESKY PROPERTIES INC. CAPREIT LIMITED PARTNERSHIP

RENATO DEVELOPMENTS 3201 LAWRENCE AVENUE EAST

APARTMENTS 30 GILDER DRIVE APARTMENTS, Landlords/Respondents

AND

VELAUTHAPILLAI SUGUNAN, Tenant/Appellant

BEFORE:

Leiper J.

HEARD:

In writing at Toronto: February 29, 2024

Counsel as Agent for Homesky: P. Portman

Counsel for Capreit Limited Partnership, Renato Developments, 3201 Lawrence

Avenue East Apartments and 30 Gilder Drive Apartments: S. Toole

Counsel for the Landlord and Tenant Board: E. Fellman

Velauthapillai Sugunan: not participating

ENDORSEMENT

INTRODUCTION AND BACKGROUND

[1] On January 19, 2024, I held a case management teleconference to address five appeals brought by the same tenant, Velauthapillai Sugunan in relation to tenancies at five different units at various rental properties in Toronto. The tenant did not appear. His agent, licensed paralegal Mr. Phang attended, as did counsel for the Landlord and Tenant Board and counsel for the landlords in each appeal.

[2] The endorsement of January 22, 2022 describes the background to the joint case conference:

Each appeal relates to tenancies in which the named tenant has been the subject of eviction orders from the Board. Each appeal involves substantial arrears of rent. In the proceedings before this court, and before the Board, the tenant has a longstanding pattern of not attending hearings and instructing Mr. Phang to attend and request adjournments because of illness, sometimes with a medical letter, and on other occasions without. In four of five of these appeals, the tenant sought and received a certificate staying the order of eviction.

[3] A review of the records filed in those appeals reveals that the tenant, aided by Mr. Phang responded to ongoing eviction proceedings before the Board and then appealed to this court. The tenant made representations in each of those proceedings as follows:

• In the Renato Developments matter, (Divisional Court file 710/23), on February 28, 2023 the Board adjourned the hearing after Mr. Phang provided a doctor’s note stating that Mr. Sugunan was ill and needed to rest. The arrears owing on the unit at that time were found by the Board to be $16,236.

• In the Capreit Limited Partnership Order by the Board dated July 20, 2023, (Divisional Court file 472/23), the Board ordered eviction after refusing an adjournment sought by Mr. Phang for the tenant due to illness. The Board found that arrears were owing of $28,701.44.

• At the scheduled hearing for the appeal in the Capreit Limited Partnership matter, November 22, 2023, Mr. Phang attended for the tenant and advised that the tenant was too ill to attend. He provided two medical letters in support of that request and advised the court that his client was seeking financial help from his family to pay the arrears. Mr. Phang did not advise the court that his client was earning income from units rented in his name, or that there were concurrent proceedings before the court.

• On December 21, 2023, the Board ordered eviction in the 30 Gilder Drive matter (Divisional Court file 024/24) and noted that three prior hearings in that matter had been adjourned due to tenant’s illness. The arrears as of August 31, 2023, were found to be $15,670.05.

[4] Having heard from counsel for the landlords at the case conference, I gave directions as set out below.

DIRECTIONS AND ORDERS

Homesky Properties Inc. v. Sugunan, 405/23

[5] In this appeal, on July 14, 2024, (Homesky Properties Inc. v. Sugunan, 2023 ONSC 4624) Corbett, J. lifted the stay of eviction following a teleconference at which Mr. Phang attended to assist the tenant, who stated that he was suffering from an illness that made participating in the court process very stressful. The arrears stood at $45,000 and the monthly rent was $1900.

[6] The tenant has not filed material in this matter, nor has he ordered the recordings to perfect the appeal.

[7] I directed that this appeal would be dismissed as abandoned if the tenant did not file proof by February 1, 2024, that he has ordered the recordings from the Board and that he intends to perfect and argue this appeal.

[8] The tenant has not filed any such material as directed. This appeal is dismissed as abandoned.

30 Gilder Drive Apartments v. Sugunan, 024/24

[9] At the time of the case conference, counsel for 30 Gilder Drive Apartments advised the court that the eviction order had been carried out prior to the filing of the appeal.

[10] I directed that this appeal would be dismissed as abandoned if the tenant did not file proof by February 1, 2024, that he has ordered the recordings from the Board and that he intends to perfect and argue this appeal.

[11] The tenant has not filed any such material as directed. This appeal is dismissed as abandoned.

Capreit Limited Partnership v. Sugunan, 472/23; Renato Developments v. Sugunan 710/23; 3201 Lawrence Avenue East Apartments v. Sugunan, 720/23

[12] Following the case conference, I directed that as a condition of maintaining the certificates of stay of eviction in the matter of 472/23, 710/23 and 720/23, the tenant shall pay the arrears in full by February 1, 2024, and the rent on each unit as it falls due.

[13] I scheduled a motion in writing to address the landlord’s motion to quash the appeals and permitted the landlord to move in writing to lift the stays of eviction if the tenant failed to make the payments as directed.

[14] I also directed the landlords shall serve and file the tenant, Mr. Phang, any known occupants of the three units, and the Board with their materials on or before February 12, 2024.

Findings on the Landlords’ Motions to Lift the Stays in Appeals 472/23, 710/23 and 720/23

[15] Counsel to the landlords in these three appeals filed affidavit evidence confirming that the tenant has failed to pay the arrears and ongoing rent as a condition of maintaining the stay of the eviction order pending these appeals.

[16] As directed, the landlords in each of these appeals have served notice on the occupants of the units. Neither the occupants, nor the named tenant, have filed any material on these in-writing motions to lift the stays of eviction.

[17] The uncontradicted evidence is that the tenant has failed to pay any of the arrears or rent in the three appeals. The record reveals no intention to do so. I infer from the history of these proceedings that the tenant has been profiting from subtenancies, not remitting rent and has abused the process of the court by benefiting from the stay of eviction while exploiting others.

[18] I order that the stays of eviction in appeals 472/23, 710/23 and 720/23 are all lifted, immediately.

Findings on the Landlord’s Motion to Quash the Appeal for Delay in Appeals 472/23, 710/23 and 720/23

[19] The landlords also seek to quash these three appeals for delay or alternatively because they are an abuse of process of the court. I have no hesitation in doing so on either of these grounds.

[20] The tenant has filed no evidence of ordering the tapes of the hearings, has failed to attend at two prior case conferences, and one prior hearing of the appeal in 472/23, and had not paid rent for any of the units in which he is shown as a tenant. There is evidence that he is collecting rent from others in those units through an intermediary and failing to remit rent to the landlord.

[21] The tenant has not abided by orders of the court to pay rent pending the appeal. The only conclusion to be drawn from the pattern of conduct including seeking adjournments in each case from the Board and from this court based on varying descriptions of ill-health and promises that his relatives will assist in paying the arrears is that this is a scheme to profit from others, and that court’s process and certificate of stay provided on filing an appeal has been abused to continue that scheme and delay eviction.

[22] Pursuant to subrule 61.13(1) of the Rules of Civil Procedure, a respondent to an appeal may make a motion to the court to dismiss an appeal for delay where:

a. if transcripts are required for the appeal, the appellant has not ordered the transcripts within 30 days after filing the Notice of Appeal; or

b. if transcripts are not required for the appeal, the appellant has not perfected the appeal within 30 days after filing the Notice of Appeal.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, r. 61.13(1)

[23] The Tenant was required to file proof that he had ordered the transcripts within 30 days after filing his notice of appeal in each of these appeals. He did not do so. The appeal is thus liable to being dismissed for delay.

[24] Subsection 210(1) of the Residential Tenancies Act provides that an appeal to the Divisional Court of an order of the Board is only available on a “question of law”. As such, where an appeal raises a question of fact, or of mixed fact and law, the court does not have the jurisdiction to consider same: see Residential Tenancies Act, 2006, S.O. 2006, c. 17, as amended, s. 210; Linhares v. Rahman, 2023 ONSC 1435 (Div. Ct.) at para. 8; Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.) at para. 26.

[25] In these appeals, the tenant has raised questions of his inability to participate in the hearings below. While in some circumstances the record might raise a meritorious question of law on the issue of procedural fairness, the record on these appeals does not. The tenant was “gaming” the system and raising similar but shifting medical reasons for his nonattendance. The Board considered those requests and proceeded, in some cases after granting an initial adjournment. The “game” continued and was played in this court to similar effect with the same agent conveying the same type of information, right up until the final case conference.

[26] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that a court to which an appeal is taken may, on a motion, in a proper case quash an appeal. These are manifestly “proper cases” in which that discretion should be exercised. These appeals are quashed as an abuse of process, and because they are devoid of merit.

Costs

[27] The landlords seek their costs of these proceedings on a substantial indemnity basis, based on the tenant’s improper conduct and multiple abuses of process. They have filed costs outlines in support of these requests which are proportional and reasonable to the work done, the results obtained and the importance of the matters. Each of these matters required separate filings and each landlord was wholly successful. These proceedings arose wholly from improper conduct by the tenant in each case.

[28] I agree that costs on a substantial indemnity basis are warranted. In the matter of 710/23 the tenant shall pay the landlord’s costs in the amount of $5,111.00. In the matter of 720/23, the tenant shall pay the landlord’s costs in the amount of $2,908. In the matter of 472/23, the tenant shall pay the landlord’s costs in the amount of $6,559.

Leiper, J.

Released: March 6, 2024