CITATION: Eldebron Holdings Limited v. Mason, 2016 ONSC 2544
DIVISIONAL COURT FILE NO.: 47/16
TSL-68712-15
DATE: 20160414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.A. BROAD J.
BETWEEN:
ELDEBRON HOLDINGS LIMITED
Landlord/Respondent
– and –
JEFFREY D. MASON
Tenant/Appellant
Michael Spence, for the Landlord/ Respondent
Not In Attendance
HEARD: April 14, 2016
D.A. BROAD J. (Orally)
[1] The respondent Eldebron Holdings Limited, as landlord, entered into a monthly residential tenancy with the appellant Jeffrey D. Mason on August 27, 2015 in respect of a residential property known as 103-251 St. George Street, Toronto, Ontario, M5R 2M2 (the “premises”). The appellant agreed to pay monthly rent to the respondent in the amount of $1700 on the first of each month commencing September 1, 2015.
[2] The appellant’s payment for the September 2015 rent successfully cleared but his cheque in payment for the October 2015 rent was returned and the appellant has made no further payments to the respondent in respect of rent. The appellant has continued to reside in the premises to date without paying the agreed rent.
[3] On October 16, 2015 the respondent served on the appellant a “Notice to End Tenancy Early for Non-Payment of Rent”.
[4] On November 19, 2015 the respondent filed an application with the Landlord and Tenant Board (the “Board”) seeking an order to terminate the tenancy, for payment of rental arrears outstanding and to evict the appellant from the premises.
[5] The respondent’s application was heard by the Board on January 4, 2016. The parties ultimately consented to the Board’s order terminating the tenancy, requiring the appellant to pay to the respondent rental arrears together with per diem compensation to the date that he moves out of the property and costs. The order further provided that if the property is not vacated on or before January 31, 2016 the respondent may file the order with the Sheriff so that the eviction may be enforced.
[6] The appellant did not pay the amounts required nor did he vacate the property pursuant to the order. On January 29, 2016, being the last day of business before the respondent could proceed with an eviction pursuant to the order, the appellant initiated the within appeal which had the effect of staying the respondent from proceeding with the eviction. The amount owing by the appellant to the respondent pursuant to the Board’s order as of today’s date is the sum of $11,147.74.
[7] The appellant’s Notice of Appeal asks that the consent order be set aside and that a judgment be granted that the tenancy not be terminated and that the rental unit need not be vacated. The grounds of appeal are stated as follows:
“the order issued by the Landlord and Tenant Board dated January 6, 2016 has an error in the calculations of the amounts owing as the appellant did not agree or consent to the terms and rates of the calculations in Schedule 1 Summary of Calculations as attached to the order. Such order is thereby flawed and should be set aside.”
[8] The respondent has brought a motion quashing the appeal, lifting the stay currently in place against the order of the Board, and directing the Sheriff in the Court Enforcement Office of Toronto to enforce the order and provide a vacant possession of the premises to the respondent immediately.
[9] The grounds for the motion include:
i. that the appeal is frivolous, vexatious and an abuse of process;
ii. the appellant consented to the order under appeal;
iii. the appeal is manifestly devoid of merit;
iv. the appeal does not raise a question of law as is required by section 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17;
v. even if the calculations in the order are considered incorrect, this is a question of fact and not a question of law; and
vi. no appeal lies without leave of the court to which the appeal is to be taken from an order made with the consent of the parties.
[10] The appellant filed no material in response to the motion. Counsel for the respondent advises that the appellant attempted to deliver a Notice of Abandonment to his office by email at approximately 5:00 p.m. yesterday. At approximately 4:00 p.m. to 4:30 p.m. I was advised by court staff that the appellant attended at the Divisional Court office seeking to file a Notice of Abandonment. I instructed staff to direct the appellant to appear today with his Notice of Abandonment. He has not appeared as of 10:30 a.m.
[11] The respondent seeks costs of the motion and of the appeal on a substantial indemnity basis in the sum of $5,639.08 inclusive. Included in that figure are fees in the sum of $4,014.00 and counsel fee for appearance today of $675.00, disbursements of $315.98 and also applicable HST.
[12] It is noted that, as disclosed in the affidavit of Ronald Kalifer in support of the motion, that on or about May 15, 2015, less than one year ago, the appellant’s former landlord brought a motion in this Court under File No. 191/15 to, amongst other things, quash the appellant’s appeal in respect of an order of the Board in respect of other residential premises, in similar circumstances, and on similar grounds. In the 2015 appeal under File No. 191/15, D. L. Corbett J. quashed the appellant’s appeal, lifted the stay of proceedings, and the directed the Sheriff to enforce the Board’s order in that case. Justice Corbett held that the appellant has been “gaming the system” before the Board by not paying any rent for as long as possible and then appealing the Board’s order to obtain a stay of proceedings (see Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.)).
[13] Justice Corbett, in quashing the appellant’s appeal, lifting the stay and directing the Sheriff to enforce the Board’s order in the Florsham case, ordered the appellant to pay costs to the landlord fixed at $3,000 inclusive.
[14] In the exercise of my discretion to control the process I declined to permit the appellant to simply abandon the appeal when he appeared at the Divisional Court office, but rather I have signed the order requested by the respondent quashing the appeal, lifting the stay and directing the Sheriff to enforce the Board’s order. I find that the appeal is manifestly devoid of merit. It does not raise a question of law as is required by s. 210 of the Residential Tenancies Act, 2006. Moreover, the order appealed from was on consent and the appellant did not seek or obtain leave to appeal, as required by s. 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C. 43. As held in the case of Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.) at para. 34, the Divisional Court, on motion, may quash an appeal if it is manifestly devoid of merit, or is an abuse of process seeking only to delay.
[15] It is readily apparent that the finding of D. L. Corbett J. in the Florsham case that the appellant had been “gaming the system” and the order of costs against him in the sum of $3,000 has not deterred him from continuing to “game the system”.
[16] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan (1999) O.J. No. 3707 (C.A.) at para. 24).
[17] In the present circumstances the first and third of these purposes are paramount. The inappropriate behavior of the appellant in “gaming the system”, as found by D. L. Corbett J. and as found by me, should be discouraged and sanctioned inasmuch as an award of costs may attempt do so. Not only are innocent landlords such as the respondent in this case and in the Florsham case hurt by the behavior exemplified by the appellant but the administration of justice is adversely impacted by the diversion of scarce judicial and court resources away from cases deserving of judicial attention towards completely unmeritorious and self-interested proceedings such as this. The only way that the objectives of indemnification and the sanction of inappropriate behavior may be addressed in this particular case is by an order that the appellant pay costs to the respondent on a substantially indemnity basis. It is ordered that the appellant pay costs of the appeal, including this motion, to the respondent on a substantial indemnity basis fixed in the sum of $5,639.08 inclusive. These costs are payable forthwith.
[18] As a final observation, counsel for the respondent brought to my attention the case of D’Amico v. Hitti 2012 ONSC 4467 (Div. Ct.) dealing with similar circumstances. At the conclusion of his reasons, at para. 6, Matlow J. stated as follows:
It is my hope that those in a position to amend the Rules of this Court will consider this judgment and see fit to restrict the right of appeal in residential landlord and tenant cases and, perhaps, require that leave to appeal be obtained before appeals can be brought.
[19] By these Reasons I would add my voice to the hope expressed by Matlow J. in the D’Amico case.
[20] I have endorsed the Motion Record, “For oral reasons delivered today, motion of the respondent/landlord allowed, with substantial indemnity costs fixed in the sum of $5,639.08. Order signed as per draft.”
D.A. BROAD J.
Date of Reasons for Judgment: April 14, 2016
Date of Release: April 15, 2016
CITATION: Eldebron Holdings Limited v. Mason, 2016 ONSC 2544
DIVISIONAL COURT FILE NO.: 47/16
TSL-68712-15
DATE: 20160414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. A. BROAD J.
BETWEEN:
ELDEBRON HOLDINGS LIMITED
Landlord/Respondent
- And –
JEFFREY D. MASON
Tenant/Appellant
ORAL REASONS FOR JUDGMENT
D. A. BROAD J.
Date of Reasons for Judgment: April 14, 2016
Date of Release: April 15, 2016