Court File and Parties
COURT FILE NO.: TBD DATE: 20200408 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: Morguard Corporation, Applicant – and – Nicolas C. Lozada Corredor et al., Respondents
BEFORE: F.L. Myers J.
COUNSEL: Martin Zarnett, for the Applicant
READ: April 8, 2020
Endorsement
Background – the Tenants’ Eviction
[1] Morguard Corporation is the landlord of the apartment building complex located at 85 Thorncliffe Park Drive in Toronto. The respondents are tenants residing in a unit in the complex.
[2] The landlord brought a proceeding before the Landlord and Tenant Board seeking to evict the tenants. The landlord alleged that eviction was required because the tenant Nicolas C. Lozada Corredor committed a sexual assault in the building complex.
[3] Mr. Corredor appeared before the board and did not contest the allegation. The board found:
At the hearing the Landlord's representative showed security camera footage taken on September 18, 2019 in the fitness room in the residential complex. This footage showed a female resident laying on a treadmill, NC approached the resident and stood close by for a few moments, then NC got on top of the resident and moved around. The resident then got up and moved away from NC quickly. She appears to be very agitated.
NC has been charged with sexual assault as a result of the incident on September 18, 2019. The charges have not been resolved…
Based on the Landlord's essentially uncontested evidence, I find, on a balance of probabilities, that NC climbed onto a resident while she was prone in the fitness room of the residential complex and that the resident did not consent to this touching. NC's conduct constitutes at least one serious offence under the Criminal Code and it affects the character and use of the residential complex. I therefore find that NC has committed an illegal act at the residential complex.
[4] By order dated March 6, 2020, the Landlord and Tenant Board terminated the tenants’ lease and ordered them to vacate their unit by April 6, 2020.
[5] The landlord wishes to ask the sheriff to carry out the eviction order.
The Eviction Moratorium in Ontario
[6] In response to the emergency declared by the government of Ontario in relation to the global COVID-19 pandemic, on March 19, 2020, the Attorney General brought a legal proceeding before Chief Justice Geoffrey B. Morawetz, the Chief Justice of the Ontario Superior Court of Justice. In that proceeding, the Attorney General sought an order “suspending the execution of all writs of possession to evict residents from their homes during the 2019 novel coronavirus pandemic”.
[7] As a result, by order dated March 19, 2020, in Attorney General of Ontario v Persons Unknown, the Chief Justice granted the following order:
THIS COURT ORDERS that, during the suspension of regular court operations by the Chief Justice, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended unless the court orders otherwise upon leave being granted to a party by the court pursuant to the courts procedures for urgent motions.
[8] The regular operations of the court were suspended by the Chief Justice in the Notice to the Profession dated March 15, 2020. The Notice to the Profession provides interim procedures for parties to bring urgent motions.
[9] Part “A” of the Notice to the Profession allows the following matters to be heard:
- The following CIVIL and COMMERCIAL LIST (Toronto) matters:
a. urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.
b. Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.
- Any other matter that the Court deems necessary and appropriate to hear on an urgent basis. The Bar and the public are advised that these matters will be strictly limited.
Jurisdiction
[10] Under s. 85 of the Residential Tenancies Act, 2006, an eviction order is enforced in the same manner as a writ of possession under the Rules of Civil Procedure, RRO 1990, Reg 194. By making an eviction order, the board has essentially given leave for the issuance of a writ of possession under Rule 60.10(1).
[11] However, the Chief Justice’s order has suspended the enforcement of all writs of possession related to residential evictions. The order creates a question as to whether and how the board’s order can or might be enforced. Rule 60.17 provides that “[w]here a question arises in relation to the measures to be taken by a sheriff in carrying out an order” an interested party may make a motion for directions to a judge.
[12] In my respectful view, the order for leave to evict a tenant despite the moratorium imposed by the Chief Justice’s order is properly a motion for directions under Rule 60.17 as supported by Rules 60.03, 60.10, and s. 85 of the statute.
Analysis
[13] Under the Chief Justice order, before a landlord may seek directions to enforce an eviction, it must first obtain leave of the court to make that request “pursuant to the courts procedures for urgent motions”.
[14] As delegate of the Regional Senior Justice in Toronto, I am required to consider whether the proposed motion for directions to lift the suspension meets the urgency requirements of the Notice to the Profession as set out above. In my view it does.
[15] The question of whether the tenant(s) should continue to reside in the building in face of the findings of the board quoted above is both time-sensitive and one that is necessary and appropriate for the court to hear urgently. Important interests of vulnerable third parties may be at stake. I am not today deciding whether the eviction may proceed despite the moratorium ordered by the Chief Justice. The legal basis for an order lifting the moratorium has not yet been briefed or argued by counsel for the parties. However, to allow for that issue to be considered, I grant leave to the landlord to bring a motion for directions on short notice.
[16] The terms set out in Schedule “A” apply to the hearing of this motion for directions.
[17] The landlord shall file an application record and factum in accordance with the Notice to the Profession as soon as possible and by no later than 3:00 p.m. on April 10, 2020. Service shall be made by leaving a copy of the materials in the front door mail-slot of the tenants’ apartment unit in addition to email (if the landlord has an email address for the tenants).
[18] The landlord’s counsel shall serve a copy of this endorsement on the tenant as well.
[19] The matter will be heard by the Court on April 15, 2020.
[20] The tenants are advised that free legal assistance may be available to them from Pro Bono Ontario who can be contacted at 1-855-255-7256.
[21] If any of the tenants requires accommodation for disabilities they may notify the Motions Coordinator.
[22] If the tenants wish to provide any evidence or legal argument to the court in answer to the landlord’s motion, they must deliver by email sworn affidavits containing all of the evidence on which they rely to Mr. Zarnett and to the court before 12:00 p.m. noon April 14, 2020. Mr. Zarnett is requested to assist the tenants to forward their evidence and argument material to the court.
F.L. Myers J. Date: April 8, 2020
Schedule “A” Terms
COURT FILE NO: TBD
[1] An urgent motion will be heard by Justice Leiper on April 15, 2020 at 10:15 p.m.
[2] Service of motion materials in this contemplated proceeding may be made by email and shall be deemed effective on the date the email is sent or, if sent after 4:00 p.m., on the next day. No acknowledgement of receipt for email service is required for this motion.
[3] All evidence, motion records, and factums shall be filed with the court by delivering them as attachments to an email to the other parties and the Motions Coordinator in searchable PDF format. No Books of Authority or statutory materials are to be sent to the other parties or the Motions Coordinator. References to case law or statutory material shall be made by hyperlinks to contained in the parties’ factums or in a separate list of authorities.
[4] The motion hearing will be held by telephone conference on a line arranged by the Motions Coordinator. The parties and the presiding judge may use videoconference technology (whether Skype or Microsoft Teams or otherwise) as may be available to them all and acceptable to the presiding judge.
[5] Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material he, she, or it delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor.
[6] This endorsement is effective when signed. No formal order is required.
[7] All parties are given notice that:
a. The presiding judge may convene one or more case conferences and make all orders as he deems appropriate under Rule 50.13(6) to ensure the efficient hearing of the urgent motion that is the subject of this endorsement; and
b. Notwithstanding Rule 59.05, orders and judgments made in this proceeding are effective from the date they are made, and are enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal judgments or orders need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party may nonetheless submit a formal judgment or order for original signing, entry and filing when the Court returns to regular operations;
c. All of the provisions of this order may be varied by the presiding judge on such terms and he or she deems just; and
d. The hearing may be recorded for the court’s purposes.
Date: April 8, 2020