Court Information and Parties
CITATION: Ross v. Danbar Property Holdings, 2024 ONSC 5446
DIVISIONAL COURT FILE NO.: 348/24
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: KEIOSHA ross and MARLINE JENKINS, Appellants/Tenants /Responding Parties to Motion
AND:
DANBAR PROPERTY HOLDINGS II LP, Respondent/Landlord/Moving Party
BEFORE: Matheson J.
COUNSEL: Self-represented Appellants not attending
Kristin A. Ley, for the Respondent/Landlord/Moving Party
HEARD at Toronto: October 16, 2024, by video-conference
ENDORSEMENT
[1]
Background
The landlord has brough a motion to quash this appeal. The appeal challenges the decision of the Landlord and Tenant Board (LTB) dated June 5, 2024 (the LTB Decision), evicting the appellants/tenants from the premises. The appellants brought this appeal and obtained a certificate of stay in relation to the LTB decision on June 17, 2024. Since that time, the appellants have not complied with this Court’s directions and have not delivered any court materials.
2Briefly, the appellants are tenants of a premises in Scarborough. On March 27, 2024, the LTB made a consent order arising from the landlord’s application to terminate the tenancy because the appellants had changed the locks. On consent, the LTB required that a key be provided on terms. The landlord then applied for termination of the tenancy based upon a lack of full compliance with the consent order. After a contested hearing, the LTB determined that the appellants had not complied with the consent order and terminated the tenancy effective June 16, 2024. This appeal was then commenced.
[3]
Procedural History
By my directions given in July 2024, the parties were obliged to provide a proposed schedule for the exchange of court documents within two weeks. The appellants did not do so. The landlord’s counsel emailed the appellants with a proposed schedule for the appeal. One of the appellants emailed in response, making broad allegations against various people, including a person who is described as a former supervisor in one of the appellant’s former workplace and others, alleging harassment and other misconduct.
4The landlord brought this motion to quash the appeal. By directions dated August 8, 2024, Justice O’Brien set a schedule for both the appeal court materials and the motion to quash court materials. Among other deadlines, the appellants were required to deliver their responding motion materials by August 26, 2024, and did not do so.
5As of the return date of the motion to quash, October 2, 2024, there were no court materials from the appellants and no one attended the hearing. I adjourned the hearing of the motion to quash until October 16, 2024, to give the appellants one more opportunity to respond to the motion, as set out in the following directions:
Justice Matheson’s endorsement regarding the motion to quash this appeal, which was scheduled to be heard on Oct. 2, 2024, is as follows. The self-represented appellants did not attend the hearing of the motion. After the court and counsel waited for 30 minutes, the appellants still did not attend. The appellants also did not serve, file or upload any court materials responding to the motion. Those materials were due in August. The only recent communication from the appellants was email yesterday on the topic of getting the LTB audio recording for the appeal. That recording was provided yesterday in response to that email. The LTB shall also provide the audio recording to the moving party’s counsel, who shall upload it to the Case Center.
Over the objection of the moving party, this motion is adjourned to Oct. 16, 2024, to give the appellants one last chance to respond to the motion. Given the history of this matter, including the failure of the appellants to comply with this Court’s directions, the appellants cannot request another adjournment of the motion. They are granted an extension of time to deliver their responding court materials for the motion – those court materials are now due on Oct. 11, 2024. Those court materials must be served, filed and uploaded to the Case Center by that date. If the moving party intends to deliver any supplementary motion materials, that must be done by Oct. 7, 2024.
This motion shall now be heard via Zoom on Oct. 16, 2024, at 10AM.
The appellants are encouraged to get legal advice.
[Underlining in original.]
6The appellants were not present when the hearing commenced today, nor had they delivered any court materials in response to the motion to quash.
7At the outset of the hearing, counsel to the moving party advised the Court that at about 9:42AM the appellants emailed the court office requesting the Zoom link, and counsel replied with the link at about 9:50AM. Shortly after 10AM, I directed that counsel email the appellants indicating that the court hearing had commenced and indicating that they should join the hearing. The court office also replied to the request for the link. I waited until 10:30AM to give the appellants the opportunity to join and they did not do so. About 10:33AM, Ms. Jenkins emailed asking if the hearing was at 4PM despite clarification the day before the hearing and emails earlier the same day that it was at 10AM. I directed counsel to email again to say that the court hearing had commenced and the appellants should join immediately. I waited again, to give them the opportunity to join. At 10:53AM, one of the appellants sent the following email to the Court, counsel to the landlord and several others including the Premier, the president of York University, the president of CUPE:
Please be advised:
[Supervisor] infiltrated the courts while I was attending York University and got me evicted.
He was to sexual assault me and us.
This matter is beyond visual description. It is astronomical his behavior and attempt our of lives and belongings are a invasion that is bloody and reckless to society and visible to the plain eye. He brags about having his judges and lawyers to do corruption
The superintendent tells me comes by the building to stock me. He has been doing this for for over fifteen years and his grandparents use to do this to my grandparents in Jamaica. "And the way/ channel we know about it this information is because he openly brags about it." Like, his use of [Judge] to confiscate my grandson with [another person].
Keiosha Ross
On behalf of Marline Jenkins
8Neither appellant joined the Zoom hearing by about 11AM. I then proceeded with the motion to quash and the hearing was completed in the morning. Although there were repeated emails to the appellants indicating that the hearing was at 10AM, my Registrar informed me that one appellant did join the Zoom link shortly before 4PM, when the hearing was over. The appellants had ample notice of the time of the hearing, which was clearly set out in my directions above, and if they were in any doubt they should have joined the hearing at 10AM or in the period between 10AM and 11AM given my directions.
[9]
Legal Framework
Moving to the motion, this Court has jurisdiction to quash an appeal under section 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43 where the appeal is “manifestly devoid of merit” or can be said to be an abuse of process because it has been brought solely for the purpose of delay: Regan v Ennis, 2016 ONSC 7143 (Div. Ct.), at para. 24.
10An appeal from the LTB is limited to questions of law: s. 210, Residential Tenancies Act, 2006, S.O. 2006, c. 17. The moving party seeks to quash the appeal on the basis that it does not give rise to a question of law, is manifestly devoid of merit, and, as shown by the history of the court matter, serves only to delay the enforcement of the eviction order.
[11]
Analysis
The issue giving rise to the LTB Decision was whether the appellants had complied with the prior consent order regarding the key. The Member heard from the parties and found that the appellants had not complied with the consent order, granting the eviction order.
12Although the appellants did not deliver any court material in response to this motion, I have proceeded on the basis that they object to the motion and have taken into account the grounds in their notice of appeal. I have also taken into account the above-quoted email from one appellant on behalf of the other, and the audio recording of the LTB hearing that resulted in the LTB Decision, which I have listened to.
13There is considerable overlap in the subjects raised in the notice of appeal, the above email and at the LTB hearing. The appellants have concerns about the conduct of persons that they believe have taken serious steps against them, including the supervisor at a prior work place that the appellants say is using the LTB to evict them as a reprisal for the appellants filing a sexual assault case against him and who they say is using the landlord to harass them. The grounds regarding those matters do not give rise to a question of law about the LTB Decision. The issue at the LTB was whether the appellants had complied with a prior consent order.
14To the extent that the appellants have raised issues about the finding of non-compliance, they are not questions of law giving rise to a right of appeal.
15There are also allegations in the notice of appeal that could be described as alleging procedural unfairness, which is a question of law. Specifically, the grounds say that the “judge” (which I read to mean the LTB Member) “attacked” the appellants’ character by saying they were “rambling” “when in fact the judge was “bias””. At the hearing, the appellants were providing answers to the Member’s questions that were again about the supervisor in the former workplace and allegations about what he and others did including harassment and other events. The recording shows that the Member was trying to obtain the appellants’ input on the issues before him and he ultimately did so. The appellants disagreed with the landlord’s position on compliance with the consent order. The Member interrupted the appellants and said that the issues regarding the former supervisor, harassment and related statements were irrelevant. Having heard the hearing recording and bearing in mind the context of what the Member was called upon to decide, the conduct of the hearing does not give rise to a reasonable apprehension of bias.
[16]
Disposition and Costs
I therefore grant the motion to quash because the appeal is manifestly devoid of merit. I further conclude that the appeal has served only to delay the enforcement of the LTB Decision. This shown by the repeated failure of the appellants to take the steps required by the Court to move their appeal forward.
17This appeal is quashed. The stay of the LTB Decision (LTB-L-028505-24) is lifted.
18The appellants shall pay the moving party costs fixed at $2,500, all inclusive.
19The moving party may provide the court with a form of order without the need to obtain approval as to form and content.
Matheson J.
Date: October 17, 2024