Court Information and Parties
CITATION: 580 Christie Street v. Miha Halik, 2024 ONSC 4546
DIVISIONAL COURT FILE NO.: 379/24
DATE: 20240815
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
580 Christie Street Co-Ownership Inc. Applicant (Respondent on Appeal)
– and –
Miha Halik Respondent (Appellant)
Jake A. Fine, for the Applicant/Respondent on Appeal
Self Represented Respondent/Appellant
HEARD: August 15, 2024
SHORE J.
REASONS FOR DECISION
[1] The Appellant has brought a motion to stay the order of Justice Papageorgiou, dated June 20, 2024, pending hearing of the appeal.
[2] The Appellant sought other relief on this motion, but the motion was scheduled as a motion for a stay. I am not prepared to hear the other motions at this time. Prior directions made in this Court were clear that the other issues, such as jurisdiction, would be addressed at the hearing of the appeal, and the motion today was specifically to address the motion for a stay.
[3] There were several problems before this motion could begin. The Appellant was late serving and filing his materials. I made an order extending the deadline. He filed an unsworn affidavit, but he advised the Court that he swore a copy at the filing office counter. He filed a confirmation form requesting an adjournment because he did not have access to a telephone or computer. However, he attended at the court office, and he was directed to the courtroom where the registrar was present and was able to set up a computer for his use. He then advised he could not proceed because he did not have access to his material.
[4] This was rectified by the court printing up the Appellant’s motion material and proving the Appellant with a copy. I then heard the motion.
[5] The Appellant is seeking a stay of the order of Justice Papageorgiou, which gave the Respondent a writ of possession of the Appellant’s suite, so that they can sell the property and collect on the approximately $140,000 owing to them under previous court orders.
[6] There are two applications involving these parties. The first application was commenced by the Respondents in this appeal, to gain access to the Appellant’s suite to rectify a leak. Upon entering the unit, it was clear there was also a pest infestation in the unit.
[7] Several orders were made in that proceedings, with several judges making orders to encourage the Appellant to comply with the court orders. The initial orders urged compliance without ordering costs. The Appellant was not successful in his appeals of those orders. Ultimately, the litigation concluded, with the Appellant owing over $110,000 in combined damages and costs to the Respondent.
[8] The Respondent then commenced a second application, for an order for a writ of possession and the right to dispose of the property to collect on the money owing to them.
[9] After several court attendances, the application was heard, and a final order was made granting the Respondent a writ of possession and permission to sell the property.
[10] It is this order that is under appeal.
[11] The test for granting a stay pending appeal is well established and set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), 1994 CarswellQue 120F, [1994] 1 SC.R. 311 at para 48:
a. Is there a serious issue to be determined on the appeal;
b. Will the moving party suffer irreparable harm if the stay is not granted; and
c. Does the balance of convenience favour granting a stay?
[12] In analyzing the above factors, the overarching question is whether the interests of justice call for a stay: see Longley v. Canada (Attorney General), 2007 ONCA 149 at para 15.
[13] I find there are no serious issues to be tried on the appeal.
[14] I agree with the Respondent that the basis of the Appellant’s appeal is a collateral attack on the orders made in the previous application. Most of the grounds for appeal relate to the orders made in the first application and do not relate to the order of Justice Papageorgiou.
[15] In Wilson v. The Queen, 1983 35 (SCC), 2 S.C.R. 594 at par. 599, the Supreme Court of Canada stated that:
It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stand and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally – and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation or nullification of the order or judgement…
[16] The issues on appeal that relate to the order under appeal are:
a. The failure to recognize that the Appellant suffers from medical issues;
b. There are material factual issues in dispute and the matter should not have proceeded on a summary basis;
c. Costs; and
d. Multiplicity of proceedings.
[17] In the reasons for judgement, Justice Papageorgiou expresses empathy for the Appellant, in that he is elderly and suffers from mental health issues. However, Justice Papageorgiou then details all the reasons why the orders must, nonetheless, needs to be made.
[18] The Appellant submits that there are material factual issues in dispute and the matter should not have proceeded to summary judgement. However, when asked for details as to what facts are in dispute, he could not provide any details, other than the issues addressed in the previous application.
[19] The Appellant did not advance any ground of appeal with respect to the judge exercising discretion and awarding costs.
[20] The Appellant submits that Justice Papageorgiou should have had the ability to address the decision below and for this reason the two Applications should have been heard together. The Appellant fails to understand that the prior orders were not appealed, and the appeals of the prior orders were not successful. There is no multiplicity of proceedings.
[21] I find that there are no serious issues to be determined on the appeal. I do not need to address the other two parts of the test.
[22] I also find that it is not in the interests of justice for a stay to be granted in this case. The Applicant has ignored several court orders. He is in breach of orders of this Court. It would be contrary to the interest of justice to grant him relief when he has ignored several orders of this court and continues to have significant unpaid cost orders against him. He has been given numerous opportunities by the Court to comply. While I am very sympathetic to his circumstances, he is the author of his own misfortune. There is no one to blame for him being in this position but himself.
[23] On the issue of costs, the Appellant had no issue with the quantum of costs but thought the costs should be reserved to the appeal.
[24] As the successful party on the motion, the Respondent is entitled to their costs. They are seeking costs of $2,700 on a partial indemnity basis, which is reasonable in the circumstances.
[25] Order to go as follows:
a. The Appellant’s motion for a stay pending appeal is dismissed.
b. The Appellant shall pay the Respondent costs of the motion in the sum of $2,700.
SHORE J.
Released: August 14, 2024
CITATION: 580 Christie Street v. Miha Halik, 2024 ONSC 4546
DIVISIONAL COURT FILE NO.: 379/24
DATE: 20240815
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
580 Christie Street Co-Ownership Inc. Applicant (Respondent on Appeal)
– and –
Miha Halik Respondent (Appellant on Appeal)
REASONS FOR DECISION
SHORE J.
Released: August 15, 2024