Court File and Parties
DIVISIONAL COURT FILE NO.: 592/23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Antonio Pinarreta Landlord
AND:
Peter Hanzely Tenant
BEFORE: Justice O’Brien
COUNSEL: A. Pinarreta, Self-Represented
M. Naylor, Counsel for the Tenant
HEARD: Motion In-Writing
ENDORSEMENT
Background
1The tenant, Mr. Hanzely, has brought a motion to set aside the endorsement of Shore J. dated February 8, 2024 on the basis that he was not served with the notice of motion and did not know the motion would be proceeding in-writing. An order of the Landlord and Tenant Board dated August 25, 2023 ordered Mr. Hanzely’s eviction effective September 15, 2023 unless he paid the amounts required to void the order. Mr. Hanzley appealed the Board’s order and obtained a stay of eviction pending the appeal. By oral reasons following a case conference on December 11, 2023, Schabas J. directed terms of the ongoing stay pending appeal that required Mr. Hanzely to make various payments. If he failed to make any payments, the landlord was entitled to bring a motion with supporting affidavit seeking a lifting of the stay. The endorsement of Shore J. lifted the stay.
2In directions released on February 28, 2024, Matheson J. directed as follows:
The tenant has brought a motion to set aside the order of Justice Shore dated February 8, 2024. It appears that the landlord did not deliver a notice of motion. He was told to do so by the court office. By an email addressed ‘to whom it may concern’ the landlord said it was not required because Justice Schabas said, during a case conference, that it would not be required. However, that order was not made by Justice Schabas, as shown in his directions. Those directions cannot be revisited now. Further, the landlord should have, and did not, copy the tenant on that email to the court office.
In the circumstances, the endorsement of February 8, 2024 may be set aside unless the landlord can show that notice was given or provide other reasons why it should not be set aside. The landlord shall reply in that regard, setting out his position and providing any evidence relied upon. The landlord shall have two weeks from service of the motion to provide that responding material. If the tenant receives notice from the Sheriff of enforcement of the eviction order in the meantime, the tenant’s counsel shall promptly notify the landlord and the Court and seek interim relief. Tenant’s counsel shall also email the respondent and the Court on the expiry of the two-week time period and ask for the motion to be decided.
3In response to these directions, the landlord has filed an affidavit sworn on March 19, 2024, in which he attests to having served a copy of the notice of motion and affidavit by leaving a copy with Mr. Hanzely personally on January 2, 2024.
4However, Mr. Hanzely disputes this. He has filed a further affidavit in which he acknowledges that on January 12, he received an email copy of Mr. Pinarreta’s affidavit. But he denies he received the affidavit on January 2 and that he ever received a notice of motion. He explains that on January 2, Mr. Pinarreta attended at his residence but did not deliver any affidavit or notice of motion to him on that date. According to Mr. Hanzely, both parties called the police that day because of their interaction.
Analysis
5Mr. Pinarreta’s statement that he served a notice of motion on January 2 appears inconsistent with his email to the court office (referenced in Matheson J.’s directions) in which he stated all he was required to do was file an affidavit. Mr. Pinarreta has not attached a notice of motion to his affidavit, nor has he filed a notice of motion with the court. He also has not provided any other evidence to contest the motion to set aside.
Disposition
6In these circumstances, the February 8, 2024 endorsement shall be set aside. The stay of eviction therefore remains in effect pending appeal or further order or direction of this court. The parties shall notify the sheriff of this immediately, given the notice to vacate that has been served on Mr. Hanzely.
7However, this matter must move forward to an appeal on an expedited basis. In his notice of motion, Mr. Hanzely proposed that his appeal materials, including his factum, be due on February 29, 2024. Given that time has now passed, I will extend the time to April 3, 2024. The landlord’s material will be due by April 26, 2024 and the appeal will be scheduled to be heard in May 2024.
8In addition, it remains open to Mr. Pinarreta to renew his motion in-writing, on notice to Mr. Hanzely, for a lifting of the stay for failure to comply with the directions of Schabas J. If he does so, he must:
Serve a notice of motion and his affidavit on Mr. Hanzley. He may do this by sending the material by email to Mr. Hanzely’s lawyer.
File the notice of motion and affidavit as well as the affidavit of service and Divisional Court intake form with the court through the JSO portal. He should also include a copy of this endorsement.
Separately email the material to the court together with this endorsement and ask that it be brought to my attention.
I will then direct a date by which Mr. Hanzely would be required to respond. Mr. Hanzely should expect he would be given a short time frame to respond given he now has counsel who is well-aware of the issues.
O’Brien J
Date: March 21, 2024