Citation and Court Information
DIVISIONAL COURT FILE NO.: 599/23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
Title: GARY BACHELOR and MANDY CHAPPLE, Appellants AND YAN SANDRA SUN, Respondent
BEFORE: Leiper J.
COUNSEL: Tenants/Appellants – unrepresented and acting in person Shayan Kamalie and Karan Khak, for the Landlord/Respondent
HEARD: In writing
ENDORSEMENT
[1]
Background
This endorsements follows a prior endorsement dated January 5, 2024 concerning a motion by the landlord respondent to lift the stay of eviction granted by the Landlord and Tenant Board pending the appeal filed by the tenants. The background to the motion is as follows. The appellants appealed a decision of the Landlord and Tenant Board concerning an eviction order related to a unit on Scotia Avenue in the City of Toronto. The landlord, Ms. Sun raised concerns about the tenants’ failure to move the appeal forward and their ongoing failure to pay the monthly rent of $3,000 and the substantial arrears owing on the unit.
2On October 27, 2023, Justice Nishikawa directed a case conference and required that the tenants confirm the accuracy of the rental arrears of $24,800 found by the LTB and that the monthly rent is $3,000. The tenants were also directed to provide the court with proof of payment of any rent payments that were not reflected in the LTB's calculations.
3A case conference was convened before me on November 20, 2023, at which I was advised that the tenants were not notified of the case conference. Accordingly, on November 22, 2023, I issued anticipated directions providing the tenants with 7 days to respond with the information directed by Nishikawa, J. and for their submissions on the anticipated directions. I also directed that the landlord could move before me in writing, on notice to the tenants to lift the stay of the eviction order if the tenants did not respond to the second set of directions. The landlord moved to lift that stay.
4For reasons dated January 5, 2024, I found that the tenants had not responded and lifted the stay of the eviction order.
5On January 5, 2024, after receiving the decision lifting the stay of the eviction order, the tenants communicated with the court and provided a copy of an email which they had sent to the court (but had not provided to counsel for the landlord) on November 27, 2023. I issued a direction requiring that eviction proceedings await my further directions, following my review of the tenants’ material and submissions from November 27, 2023, and January 5, 2024.
[6]
Analysis
I have now received and reviewed the November 27, 2023 email. The email asserts that the landlord has not been open to any settlement of the rent/arrears, did not provide a proper address for service and had filed a deficient notice of termination before the LTB. The tenants have not filed any evidence that they have paid rent, or plan to pay rent nor did they provide any information on the amount of arrears they say are owed. They have not disputed the amount of arrears.
7The landlord’s affidavit on the motion to lift the stay established that the tenants have taken advantage of the stay pending this appeal to occupy the unit without paying the rent. The material filed by the tenants is entirely unresponsive to the court’s directions. The essence of the tenants’ position is that they should not have to pay rent pending their appeal, because of their unsworn and untested allegations about the landlord’s unreasonableness. This is not a tenable position on a motion to lift a stay of eviction where a tenant is defaulting on their rent payments for an extended period pending an appeal. As Corbett, J. wrote in Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739 at para. 15:
The obligation to pay rent as it falls due is fundamental. Where a tenant has defaulted in rent obligations for a long time, this court will require the tenant to make rent payments and reasonable payments on account of arrears to maintain a stay of eviction pending appeal. The statutory stay is intended to preserve the court’s ability to do justice at the end of the appeal, not to enable a tenant to abuse the process of the LTB and the court to live rent-free for a long time. Appropriate terms for interim payment of rent and arrears will depend on all of the circumstances of the case – to allow tenants with good faith appeals, who intend to meet their rent obligations within a reasonable period, to preserve their tenancies – and to bring an end to failed tenancies that cause further loss to the landlord every month that goes by.
[8]
Order
This principle applies in these circumstances. The tenants have defaulted in their rent obligations and provided no indication that they intend to begin now. This has the markings of a failed tenancy that will cause further loss to this landlord if it continues. Accordingly I order the following:
The stay of the eviction order made by the Landlord and Tenant Board matter is lifted, effective January 8, 2024;
The tenants shall advise the court, no later than January 19, 2024, on notice to the landlord if they intend to pursue their appeal and if so, to propose a schedule by which they will file their materials;
If the tenants do not advise the court, on notice to the landlord, by January 19, 2024 as to their intentions in pursuing this appeal, the appeal will be dismissed as abandoned.
9The landlord may prepare an order in these terms and provide it to the court for issuing and entering.
_______________________________ Leiper J.
Released: January 8, 2024