Casiechitty v. Imran, 2024 ONSC 5149
DIVISIONAL COURT FILE NO.: 133/24
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: LANGSFORD CASIECHITTY, Appellant
-and-
ANILA IMRAN, ABEER IMRAN, and NABEEL IMRAN, Respondents
BEFORE: FL Myers J
COUNSEL: Marshall Reinhart, for the Appellant
Anila Imran, for herself
Nicola Mulima, for the Landlord and Tenant Board
HEARD at Toronto (by videoconference): September 17, 2024
ENDORSEMENT
1The parties were on notice that this case conference was convened to consider both:
a. Setting a schedule for the landlord’s proposed re-assertion of a stay pending appeal; and
b. Whether an order should be made concerning access to the premises by the landlord and his children while the appeal proceeds.
2The Landlord and Tenant Board found that the tenants had made out their claim that the landlord had breached his duty to maintain the rental unit. The board granted an abatement of rent of just under $10,000. It also ordered that the tenants were entitled to further abatements of $1,000 per month until the landlord completes the required maintenance and repairs.
3The board ordered the landlord to hire professional contractors to:
a) Address the mould issue within the rental unit to include a complete inspection and remediation and replacement of all affected areas and materials;
b) Inspect and clean the ventilation in the ensuite to ensure it is working as prescribed by prevailing property standards;
c) Repair the caulking around the fixtures in the bathrooms to include remediation of any mould or moisture; and
d) Inspect, repair or replace the appliances to ensure those provide are in working order according to the prevailing property standards.
4This order remains in place and is not stayed pending this appeal.
5In my endorsement dated June 24, 2024, reported at 2024 ONSC 3630, I ordered:
[18] The landlord concedes he has yet to perform the ordered repairs, I can see no basis for his appeal to remain protected by a stay. The tenants are continuing to live in a sub-standard unit as found. The four months that have passed are no longer “prospective.” The landlord could have taken steps to have the appeal heard quickly. Instead, he proposes perfecting the appeal in August with a hearing no sooner than towards the end of the year. The fact that he is now moving before the board as a result of the tenants’ following the order while he remains in breach of it provides no equity or weight on the landlord’s side of the scales of justice.
[19] I therefore lift the stay of proceedings on the portion of the board’s order allowing the tenants an abatement of $1,000 for each month that the landlord remains in breach of his duty to repair. Once the landlord can prove that he is in compliance with all his legal maintenance and repair obligations, he may bring a case conference to seek to reinstate the stay pending appeal. The court will decide compliance for now in the context of a stay motion and it can do so in fairly short order.
[20] On consent the landlord shall perfect the appeal by no later than August 17, 2024. The tenants shall deliver their appeal book (if any) and factum by no later than October 6, 2024. The board may deliver a factum by no later than November 7, 2024.
[21] The Registrar is requested to schedule a hearing of the appeal before a single judge as soon as practicable after November 30, 2024.
6The appeal is now scheduled for December 2, 2024.
7Today, the landlord asks to schedule a motion to re-assert a stay of the LTB order that grants the tenants ongoing abatements of $1,000 per month until his work is completed.
8The landlord asserts that he has completed the required maintenance work. The tenant hotly contested the landlord’s assertion. Ms. Imran has forwarded numerous documents purporting to evidence improper or ineffective efforts by the landlord and his adult children to repair the unit. For example, she asserts that they simply painted over mould. She also asserts that the landlord has continued to have his children attend to perform much of the work that the LTB required be performed by professionals. She says they are hostile and have attracted the attention of neighbours and building management by their inappropriate conduct.
9All of the allegations are unsworn. Moreover, the parties must stop sending copies of their communications to the court. Evidence is to be given by sworn affidavits in formal proceedings. Informal communications with the court are only appropriate to ask about scheduling.
10The amounts in issue in this proceeding are modest. But the landlord takes umbrage at the ongoing accumulation of the $1,000 per month rent abatements. He asserts that he has competed the required maintenance and asks for a motion to be scheduled so that the tenant’s entitlement to withhold $1,000 per month from her rent will be stayed.
11I agree with Mr. Reinhart that the motion is likely to be contested on the facts. Cross-examinations will be required. In discussing a schedule for the proposed motion, it became apparent that the motion hearing date would butt up against the main appeal hearing in December. Mr. Reinhart took a few minutes with his client and then advised that the landlord does wish to proceed with the motion, but he also wishes to keep the appeal hearing date.
12Mr. Reinhart suggests that the landlord deliver his motion material in three weeks by October 8, 2024. Giving the self-represented tenant the same three weeks would make her evidence for the motion due on October 29,
- Her factum on the appeal is due October 6, 2024. But she has asked for an extra couple of weeks to deliver it. That would mean that she would be delivering her main factum and responding motion materials at about the same time.
13Mr. Reinhart then asks for time to deliver reply evidence. Then a week or two will be needed for cross-examinations and another week or two for factums to be exchanged for the motion.
14It is apparent that the motion cannot be heard before the hearing of the appeal.
15When Mr. Reinhart went to speak to his client, I frankly expected them to come back and say that since the motion cannot be heard before the appeal anyway, there was no point proceeding with the motion. But that was not the case. The landlord wants to assert that he has completed the repairs to stop the plaintiff from withholding the $1,000 per month authorized by the LTB pending the hearing of the appeal.
16I considered sending the parties back to the LTB for some kind of urgent motion about the enforcement of its order. But given that the order is under appeal and understanding that the LTB’s docket is no less full than the court’s docket, that does not work either.
17In my view, given that these parties simply cannot find a way to get along pending the performance of necessary work and the hearing of the appeal, the court needs to intervene. The parties want and need a resolution of whether the necessary work has been completed satisfactorily. While the context will be a stay motion rather than a final order, the court will be called upon to rule on the contested evidence and give the parties the answer they need at least for the interim.
18But, in my view, it would be inappropriate to continue the schedule for the main appeal while this motion proceeds. The landlord wants to have both together and that is neither fair to the tenant nor a good use of court resources. I already lamented last time that the landlord was not inclined to move forward on the merits of the appeal quickly. Once again, he could have had his motion material done by now given the passage of almost three months from my last endorsement. To me, trying to get these parties better clarity on the quality of the landlord’s performance of his maintenance obligation is more important and time sensitive than the issues on the main appeal.
19I therefore set the following schedule for a motion for a stay of the LTB’s order allowing the tenant an abatement of $1,000 per month pending the completion of required maintenance and repairs:
a. The landlord will deliver his motion record by October 8, 2024;
b. The tenants shall deliver their motion record by October 29, 2024;
c. The landlord may deliver reply evidence by November 5, 2024;
d. Cross-examinations shall be completed by November 15, 2024;
e. The landlord’s factum shall be delivered by November 22, 2024;
f. The tenants’ factum shall be delivered by November 29, 2024;
g. The motion will be heard for up to two hours on December 2, 2024.
20The appeal is adjourned to be rescheduled by the judge on December 2, 2024 or at a case conference thereafter as the judge may direct. The schedule previously ordered for the main appeal is vacated.
21In the interim, as the landlord asserts that his work is completed, there is no reason for him or his adult children to be attending at the unit. The LTB required that the work be performed by professionals in any event. I did not hear or read in any material that the landlord or his children purport to be qualified to remediate mould or to be licensed plumbers or electricians. Accordingly, pending the hearing of the motion for a stay, the landlord and his children are prohibited from attending at or entering into the rented premises in person. They may send licensed professionals to perform the tasks ordered by the LTB as listed above (if not yet completed) on due notice under the Residential Tenancies Act, 2006 and in compliance with all applicable rules of the building.
22I understand that there may be new maintenance issues that both parties agree are not part of these proceedings. Given that the tenant does not want the landlord or his children entering her premises, she should not be calling on them to perform any new services pending the hearing of the motion absent a true emergency.
23I do not know if one side is being more difficult than the other. I am not casting blame or making any findings of fact today. I do not know why maintenance tasks that appear to be fairly modest in value and are fairly routine in hundreds of thousands of rental units in Ontario, are the source of ongoing hostility and distress in this case. But I can think of no other way to avoid escalating risk of a breach of the peace in a dwelling unit where children are living.
24I urge the parties to settle their differences consensually. The cost to the landlord of the proposed motion could well exceed the amount that he will win even if he succeeds on the appeal. Ms. Imran is going to need to collect evidence from tradespeople, her building management, perhaps the City of Toronto, and she will need to draft affidavits for herself and any witnesses whom she wishes to have give evidence. Ms. Imran will be subjected to cross-examination. She will be entitled to cross-examine the landlord and his witnesses, but she does not really know how to do that. Ms. Imran is advised to speak to a lawyer to get advice about how to proceed. This process is complicated and will take intense effort (and therefore be stressful).
25It is obvious that Ms. Imran is as exacting in her demands as the landlord is reluctant to incur significant costs to address them. Both need to compromise if they want to avoid the cost of this and subsequent legal proceedings.
FL Myers J
Date: September 17, 2024