Court File and Parties
CITATION: Regan v. Ennis, 2016 ONSC 7143
DIVISIONAL COURT FILE NO.: 507/16
LTB FILE NOS.: TSL-75883-16 and TSL-76275-16
DATE: 2016-11-16
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JAMES FRANCIS REGAN, Tenant/Appellant
AND:
ROBIN ENNIS, Landlord/Responding Party
BEFORE: Thorburn J.
COUNSEL: James Regan, Self-Represented Michael Kholodenko and Adam Freud, for the Landlord/Responding Party
HEARD at Toronto: November 15, 2016
ENDORSEMENT
Relief Sought
[1] The Landlord seeks to quash the Tenant’s appeal of two Orders made by the Landlord and Tenant Board (“the Board”) on October 13, 2016. The landlord also seeks an Order lifting the stay of those Orders. The Landlord claims the Tenant’s appeal is without merit.
Preliminary Issues
[2] Nordheimer J. ordered that this matter be heard on an urgent basis on November 8, 2016. On November 8th, Horkins J. adjourned the matter to November 15, 2016 as the parties were before the Landlord and Tenant Board on November 8th.
[3] On November 14th, 2016 the Tenant sent a letter to the Court to advise that he would not be able to attend as he had scheduled a sports mediation on November 15th. He was advised by the Court office to attend before this Court on November 15th.
[4] On November 15th the Tenant sought to adjourn this proceeding on the basis that he had retained Mr. Blott to act on his behalf and Mr. Blott was not available that morning. He advised that he had spent two hours with Mr. Blott to prepare for the proceeding on November 14th and had paid Mr. Blott a $5,000 retainer to secure his services. He provided the court with Mr. Blott’s business card. Mr. Blott was contacted by the Court Registrar to ensure that he was aware the matter had been put over until 2:15 that day. Mr. Blott was asked to confirm to the court in writing whether or not he had been retained or asked to attend court to assist the Tenant at 2:15.
[5] Mr. Blott attended court. He advised that he had not accepted to act on the Tenant’s behalf and denied that he had received any monies from the Tenant. (This was disputed by the Tenant.) Given Mr. Blott’s assertion that he had not been retained and would not be acting on the Tenant’s behalf, he was excused.
[6] The matter proceeded at 2:15 p.m. and the Tenant represented himself.
The Evidence
[7] The Tenant resides in the upper unit of a house owned by the Landlord at 290 Avenue Road, Toronto. The Landlord occupies the downstairs unit of the house.
[8] The Tenant has resided in the unit since July 2, 2016. He has paid no rent.
[9] On August 3, 2016, the Landlord served the Tenant with a Notice to End a Tenancy Early for non-payment of Rent and a Notice to End a Tenancy for Interference with lawful right, privilege or interest.
[10] The Landlord scheduled two Applications to be heard by the Landlord and Tenant Board on September 8, 2016.
[11] On September 8, the Tenant asked the Board member to recuse herself for reasonable apprehension of bias because he had filed an appeal in respect of one of her orders.
[12] The Tenant further requested that the hearing of the Landlord’s applications be adjourned as the Tenant claimed he had not received a notice of hearing in the mail. The Board adjourned the applications on condition that the Tenant pay $2,500 to the Board by October 1, 2016 and monthly rent of $2,500 per month until the Application could be heard. On these conditions, the Applications were scheduled to be heard on October 11, 2016.
[13] The Tenant did not make the payments ordered by the Landlord and Tenant Board.
[14] On October 11, the parties attended at the Board for the hearing of the Landlord’s Applications. The Tenant again asked the Board member to recuse herself for reasonable apprehension of bias on the grounds that he had initiated legal proceedings against her, he had appealed one of her orders and she was anti-Semitic. The Tenant advised this court that the basis for this assertion was that his counsel was not in attendance as it was Yom Kippur. The Tenant was asked by the Board to produce something in writing from his legal representative to this effect and did not. (I note that in 2016, Yom Kippur 2016 began in the evening of Tuesday, October 11 and ended in the evening of Wednesday, October 12.) The Tenant’s request was denied.
[15] The Board declined to adjourn the proceedings and the Board member refused to recuse herself.
[16] The Tenant brought a second request for an adjournment on the basis that he had filed an application regarding unspecified maintenance issues and sought to have those matters dealt with first, he was not aware of the hearing date until October 3rd as he claimed the Landlord had interfered with his mail, and his counsel was unavailable. This request was also denied.
[17] The Tenant left the hearing. As he did so, he was told the matter would proceed in his absence if he chose to leave. The matter was held down for 30 minutes, efforts were made to contact the Tenant to no avail, and the matter proceeded.
The Board’s Decision
[18] The Board rendered its decision on October 22, 2016. The Board found that the Tenant:
a) had not paid any rent for the period of his occupancy although he continued to occupy the unit,
b) the monthly rent was $2,500,
c) he had not complied with the Board’s order to make payments, and
d) he had attended the landlord’s workplace and harassed her.
[19] The Board therefore found that it was inappropriate to grant him relief from eviction.
[20] As a result, the Board issued Orders to terminate the tenancy and required the Tenant to move out by October 24, 2016, pay rent in the amount of $8,712.19 (which included the rent monies and other compensation the Board found to be owing), pay an additional $82.19 per day from October 14 to the date he moved out, $340 which was the cost of filing the applications, and interest at the rate of 2% annually from October 25, 2016 until the balance outstanding was paid.
[21] The Tenant appealed these orders and thereby obtained an automatic stay of the Termination Orders pursuant to subsection 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
The Tenant’s Grounds for Appeal
[22] On October 21, 2016, the Tenant appealed the Board’s Orders of October 13, 2016 to the Divisional Court pursuant to section 83(2) and 210(1) of the Residential Tenancies Act, S.O. 2006, c. 17 (the “Act”). Section 83 provides that,
- (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[23] Section 210(1) of the Act provides that an appeal lies to the Divisional Court from a decision of the Board but only on a question of law. (Residential Tenancies Act, 2006, S.O. 2006, c. 17.) The Board is required to be correct on issues of law. (Dollimore v. Azuria, [2002] O.J. No. 4408 (Div. Ct.); Samuel Property Management v. Nicholson (2002), 2002 45065 (ON CA), 61 O.R. (3d) 470(C.A.).)
[24] 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. (Oatway v. Canada, [1945] S.C.R. 203; Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 1976 793 (ON CA), 13 O.R. (2d) 430 (C.A.); Hornstein v. Royal Bank, 2007 CarswellOnt 2413 (Ont. Div. Ct.).)
[25] The appeal gives rise to an automatic stay of the Board’s orders pursuant to s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
Analysis and Conclusion
[26] Section 134(3) of the Courts of Justice Act provides that this court may quash an appeal where it is demonstrated that the appeal is “manifestly devoid of merit” or where the appeal is an abuse of process because it has been brought solely for the purpose of delay.
[27] The Tenant filed no material in support of his Notice of Appeal.
[28] In his Certificate Respecting Evidence the Tenant relies on the transcripts of the Board hearings and all exhibits, affidavits of the Toronto Police (among others) and his oral evidence. However, the Tenant filed no affidavit evidence nor is there any evidence that he has taken any steps to order transcripts of the proceeding. (When asked by the Court to provide some evidence that he had ordered transcripts, he provided a request for transcripts in a different proceeding.)
[29] The Landlord filed an affidavit with supporting material.
[30] The Tenant argues that the lease was not a proper lease as the other party to the lease was a numbered company not an individual. Moreover, the Tenant claims he did not spend much time at the apartment because of the problems with the apartment, there were City orders requiring the landlord to do things, the Landlord somehow got his insurance policy and made an insurance claim under his name, and the Landlord harassed him by calling a friend of his a profane name, and because articles in newspapers and magazines had made disparaging comments about him which the Tenant ascribed to the landlord.
[31] There is no error of law articulated in the Notice of Appeal nor was any error of law articulated in his oral submissions.
[32] It is not an error to fail to consider evidence that was never sought to be introduced. Although there were many allegations made by the Tenant, none were supported by evidence.
[33] No copies of City orders were provided, no evidence in support of his allegation that the Landlord had taken his insurance policy was introduced and there was no corroboration of the allegation that the Landlord had called his friend a disparaging name. Moreover, the fact that there are magazine and or newspaper articles regarding the Tenant (assuming the information contained therein emanated from the Landlord and is false and defamatory), is not relevant to the Tenant’s obligation to pay rent if he chooses to remain in the unit.
[34] By contrast, it is not disputed that the Tenant has never paid rent although he has not vacated the unit.
[35] The Board properly considered the issues and the material filed. The Board ordered that rent and other monies be paid, noted that the allegations of the Tenant were never substantiated and ordered him to pay rent, costs of the Applications and a daily amount until such time as he had vacated the unit.
[36] I note that s. 195(4) of the Act provides that if a respondent is required to pay a specified sum into the Board within a specified time as a condition of an adjournment and the Tenant fails to do so, the Board may refuse to consider his evidence and submissions. Because the Tenant failed to comply with these provisions, the Board had the authority to refuse to hear the Tenant’s submissions.
[37] In any event, there no evidence that the Board refused to allow the Tenant to make submissions. It was the Tenant who chose to leave the hearing after the Board refused his requests for an adjournment notwithstanding that he was specifically warned of the consequences and the matter was stood down in the futile hope that he would return.
[38] Finally, I do not consider that there is any merit to the assertion that there was a denial of procedural fairness and natural justice by the Board. The Tenant knew that the proceeding had been adjourned on September 8 and was to proceed on October 11. He had notice of the proceedings and attended without counsel. Moreover, after making two requests for an adjournment, the Tenant declined to participate in the proceeding and left. This was all in the context of a Tenant who had paid no rent and produced no documentation to substantiate his claims.
[39] For the above reasons, there is no merit to the Tenant’s appeal from the Board’s Orders. Further, given the circumstances before the court and particularly that he has failed to pay any rent whatsoever for the premises from the outset of his tenancy, the Tenant’s appeal seems to be no more than an excuse not to pay his rent, which conduct is an abuse of process.
[40] The Landlord suggests the Tenant has engaged in a pattern of behaviour and produced records showing that this is the third time this Tenant has been involved in a landlord and tenant appeal following an eviction notice, allowing him to live in an apartment without paying rent pending the motion to quash the Appeal. The two prior attempts were unsuccessful.
[41] On the evidence before me the Appeal is without merit. For the reasons set out above his appeal is quashed. The decision of the Landlord and Tenant Board is therefore restored to good standing and the stay Order is lifted.
[42] The Sheriff is directed to give immediate and expedited vacant possession of the premises to the Landlord, not to be exercised before November 18, 2016.
Costs
[43] Because the Appeal is without merit and an abuse of process, I agree that the Landlord is entitled to substantial indemnity costs. The costs outline provides that those costs are $5,440.00 which includes preparation of the Motion record, Brief of authorities, factum and oral argument, disbursements and costs. Such costs are reasonable given the number of attendances, and the materials produced in this matter.
[44] These costs are fixed and payable forthwith.
[45] The approval of the draft Order as to form and content is hereby dispensed with.
Thorburn J.
Date: November 16, 2016