COURT FILE NO. : CV-21-00667327-0000 DATE : 20230109 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EAGLE CAPITAL CORPORATION AND KERRY EVAN ADLER Plaintiffs

AND:

VICTOR MINAS and JANET MINAS Defendants

BEFORE: Justice Chalmers

COUNSEL: B. Salberg for the Plaintiffs J. McReynolds for the Defendants

HEARD: January 5, 2023, by videoconference

ENDORSEMENT

Overview and Factual Background

[1] A motion for leave to appeal is currently before the Court of Appeal. The Plaintiffs bring this motion for injunctive relief restraining the Defendants from dealing with the subject property pending the determination of the leave motion.

[2] The relevant chronology is as follows:

(a) The parties entered into a rental agreement on June 26, 2019, known municipally as 20 Sandringham Drive, Toronto. The lease was for a one-year term and then continued on a month-to-month basis.

(b) In December 2020, the Plaintiff/Tenant, Kerry Adler relocated to Dubai. He continued to make the lease payments.

(c) On August 16, 2021, the Defendants/Landlords took the position that the Tenants were in breach of the lease and terminated the tenancy. On August 25, 2021, the Landlord, Victor Minas moved into the residence. On November 12, 2021, the Landlord, Janet Minas joined him. The landlords have lived in the residence since that date.

(d) In August 2021, the Plaintiffs commenced this proceeding, seeking among other things, relief from forfeiture.

(e) The Plaintiffs brought a motion on an urgent basis for injunctive relief. The motion was heard by Dow J. in September 2021. After the motion was heard, but before the decision was released, the Plaintiffs commenced an application before the Landlord and Tenant Board.

(f) On October 22, 2021, Dow J. released his decision, dismissing the Plaintiffs’ motion for injunctive relief.

(g) The hearing at the Board took place on November 12, 2021. The Board released its decision on January 24, 2022. The Board ruled that the Landlords are to provide possession of the residence to the Tenants.

(h) The Landlords appealed the Board’s decision to the Divisional Court. There was an automatic stay of the Board’s decision pending the appeal to the Divisional Court.

(i) In March 2022, the Defendants listed the property for sale. The property continues to be listed for sale.

(j) On March 29, 2022, the Plaintiffs registered a caution on title. The Director of Land Titles determined that the caution was not proper, and the caution was removed from title on April 29, 2022.

(k) The Plaintiffs brought a motion before a single judge of the Divisional Court for a lifting of the stay and injunctive relief to enjoin the Landlords from dealing with the property pending the appeal.

(l) The motion was heard by Nishikawa J. on May 9, 2022. She dismissed the Plaintiffs’ motion on the basis that there was no “demonstrable unusual hardship” to justify lifting the stay. She also found that the Plaintiffs were not entitled to an injunction.

(m) The appeal of the decision of the Board was heard by the Divisional Court on November 22, 2022. The Divisional Court released its decision on December 2, 2022, dismissing the appeal.

(n) On December 13, 2022, the Defendants served a notice of motion for leave to appeal to the Court of Appeal.

(o) On December 27, 2022, the Plaintiffs brought this motion in the Superior Court for injunctive relief restraining the Landlord from dealing with the property pending the Court of Appeal’s decision with respect to the motion for leave. The motion was heard by me on January 5, 2023.

Analysis and Disposition

[3] The Divisional Court dismissed the Defendants’ appeal of the decision of the Landlord and Tenant Board. The Defendant brought a motion for leave to appeal the decision. There is no automatic stay. As a result, the order granting possession of the property to the Tenant is in force. The Plaintiffs have not taken any steps to enforce the order. The Defendants have not brought a motion to the Court of Appeal for a stay.

[4] The Plaintiffs bring this motion for interim relief to preserve the property pending the disposition of the leave to appeal motion. At issue is whether the motion for interim relief pending the disposition of the motion for leave is properly brought in the Superior Court or in the Court of Appeal.

[5] Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides jurisdiction to the Superior Court of Justice to grant an interlocutory injunction or mandatory order where it appears to the judge of the court to be just and convenient to do so. Rule 40.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that an interlocutory injunction or mandatory order under s. 101 of the Courts of Justice Act may be obtained on a motion to a judge by a party to a pending or intended proceeding.

[6] Where the proceeding is pending in the Court of Appeal, the Court of Appeal may grant interim relief pursuant to the powers set out in s. 134(2) of the Courts of Justice Act. Section 134(2), provides as follows:

On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.

[7] In Hakim Optical Laboratory Limited v. 1570710 Ontario Ltd., 2010 ONCA 627, Hakim Optical leased space from 1570710 Ontario Ltd. The landlord provided notice to Hakim that the lease would be terminated. Hakim applied for relief from forfeiture. The application was dismissed. Hakim appealed to the Court of Appeal. Hakim also moved before a single judge of the Court of Appeal for a stay of the decision dismissing the application. The landlord argued that Hakim was not actually seeking a stay because there was nothing to stay; the application was dismissed, as there was no order to be stayed. The landlord argued that Hakim is in effect seeking an injunction to prevent the landlord from taking possession of the leased premises pending the appeal. The landlord argued that the court did not have jurisdiction to grant injunctive relief pending an appeal.

[8] Laskin J.A. held that he had jurisdiction to grant an interim injunction pursuant to s. 134(2). He stated as follows:

[4] I agree with the landlord that a stay of the order dismissing its application for relief is of no benefit to Hakim. See Re Apotex Inc. and Attorney General for Ontario, [1986] O.J. No. 250. As the landlord points out, what Hakim really asks for is an interim injunction preventing the responding party from entering the leased premises pending appeal. I also agree with the landlord that r. 63 does not give me jurisdiction to grant an injunction pending appeal.

[5] However, I do have jurisdiction to grant an interim injunction under s. 134(2) of the Courts of Justice Act, which authorizes this court, on motion, to “make any interim order that is considered just to prevent prejudice to a party pending the appeal”. The jurisdiction conferred on the court under s. 134(2) may be exercised by a single judge. See s. 7(2) of the Courts of Justice Act.

[9] Laskin J.A. then went on to consider whether an injunction was appropriate in the circumstances of the appeal. He considered the merits of the appeal, and the balance of convenience. He found Hakim’s argument on the appeal to be weak. He found that the balance of convenience favoured the landlord. He refused to grant the injunction.

[10] In Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, 2011 ONSC 1305, the plaintiff obtained summary judgment against the defendant. The decision was appealed to the Court of Appeal. While the appeal was pending, the plaintiff brought a motion in the Superior Court for a Mareva injunction. Perell J. heard the motion. He described the power of the Court of Appeal to make interim orders pending an appeal as follows:

In P.M. Perell and J.W. Morden, The Law of Civil Procedure in Ontario (Markham: LexisNexis, 2010) at p. 803, John Morden describes the Court of Appeal’s jurisdiction to make interim orders to prevent prejudice, as follows: Section 134(2) has the same purpose as the provisions in Rule 63, which enable a judge of the appellate court to impose or to remove a stay, but the power is wider than that conferred by Rule 63. Section 134(2) provides a broad-based jurisdiction to make interim orders pending an appeal. The section addresses those situations for which no specific remedy has been provided by the Courts of Justice Act or the Rules of Civil Procedure and some form of judicial intervention is necessary to prevent prejudice to a party to the appeal. The provision is designed to prevent a situation where the appellant might be successful on the appeal but find that this result has been rendered nugatory ”: at para. 38.

[Italics in original.]

[11] Perell J. found that the plaintiff had made a procedural error when it sought injunctive relief from the Superior Court rather than the Court of Appeal: at para. 40. In that case there was an automatic stay of the judgment pending the appeal. Perell J. stated that the injunctive relief sought requires the court to lift the automatic stay. Pursuant to r. 63.01(5), only a judge of the court to which the appeal is taken may order that an automatic stay is lifted. Perell J. did not have jurisdiction to lift the stay and therefore could not grant the relief sought. He stated that both the motion to lift the stay and for interim relief ought to be heard by a judge of the Court of Appeal.

[12] Section 134(2) was recently considered by the Court of Appeal in Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 215. In that case there was an automatic stay of a judgment pending the appeal. The respondents to the appeal brought a motion to the Court of Appeal to lift of the automatic stay and for interim relief, namely security for costs. Paciocco J.A. considered the test for granting relief under s. 134(2) of the Courts of Justice Act. He stated that the test is the same as that for granting a stay pending appeal. It is based on the test for an interlocutory injunction as set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. This includes considering the strengths and weaknesses, such as whether there is a serious question to be adjudicated on the appeal: at para. 46. Paciocco J.A. found that the appeal was weak, which favoured granting the relief sought by the responding parties. He lifted the stay and ordered security for costs.

Summary

[13] Section 134(2) provides jurisdiction to the Court of Appeal to make interim orders in matters pending appeal. As noted by Perell J., s. 134(2) is designed to prevent prejudice to a party while the appeal is pending. Laskin J.A. determined that the interim relief that can be ordered by the Court of Appeal include injunctions. I am satisfied that the Court of Appeal has jurisdiction to grant the relief sought by the Plaintiffs.

[14] The Plaintiffs are seeking an interim injunction. As noted by Paciocco J.A., the test for interim relief under s. 134(2) is the same as the test for granting an interlocutory injunction and includes a consideration of the merits of the appeal. In both the Hakim Optical and Sub-Prime Mortgage cases, the determination as to whether interim relief ought to be granted turned, at least in part, on the strength of the appeal. It is my view that the Court of Appeal is in the best position to determine the merits of the Defendants’ motion for leave to appeal.

[15] The Plaintiffs are asking that I award interim relief to preserve rights pending the appeal. Section 134(2) specifically provides that this relief may be granted by the court to which the appeal is pending. The proceeding is now before the Court of Appeal. It is my view that it is appropriate and preferable that the motion for interim relief pending determination of the motion for leave, be addressed by the court before which the motion is pending.

[16] I decline jurisdiction to hear this motion. I find that this motion was brought in the wrong court and ought to have been brought in the Court of Appeal. Pursuant to s. 110 of the Courts of Justice Act, I transfer the Plaintiffs’ motion for injunctive relief to the Court of Appeal.

[17] Costs of the motion are reserved to the judge of the Court of Appeal who hears the Plaintiffs’ motion for interim relief.

Date: January 9, 2023