Court File and Parties

CITATION: Mahdieh v. Chen, 2019 ONSC 4218

DIVISIONAL COURT FILE NO.: 774/18

DATE: 2019/07/11

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Arash Mahdieh, Tenant/Responding Party

AND: Yutian chen, Landlord/Moving Party

BEFORE: H. Sachs J.

COUNSEL: Rann Wang, for the Landlord/Moving Party

Arash Mahdieh, appeared in person

HEARD at Toronto: July 10, 2019

Endorsement

[1] This is a motion by the Landlord to quash the Tenant’s appeal on the basis that it is manifestly devoid of merit.

[2] The Tenant appeared in person, but filed no material on the motion. He stated that he had twice been emailed the Landlord’s materials, but had not been able to access the Landlord’s Motion Record. He had been able to access the Landlord’s factum and Book of Authorities. I gave the Tenant an opportunity to review the Landlord’s Motion Record (the contents of which are set out in the Landlord’s factum) and asked him if he would like an adjournment until July 12, 2019 to file material in response. The Tenant stated that he would rather proceed today than reappear on July 12, 2019.

[3] On March 28, 2019 the Landlord and Tenant Board (the “Board”) made an order that the Tenant was to pay the Landlord $25,000.00 representing the rent owing on the lease between the Tenant and the Landlord up to April 14, 2018.

[4] In June of 2018 the Landlord commenced eviction proceedings on the basis of non-payment of rent. The Board scheduled a hearing for August 18, 2018 and on that date, at the request of the Tenant, the matter was adjourned to November 2, 2018. As a condition of the adjournment the Tenant was ordered to deliver a written statement outlining his position and a copy of all the documents he intended to rely on 15 days prior to the hearing date. He was also ordered to make ongoing rent payments.

[5] On November 2, 2018 the Tenant requested another adjournment, which was denied. The Board accepted that the Tenant had not complied with the conditions of the prior adjournment. On November 27, 2018 the Board made an order terminating. the Tenant’s tenancy on the basis of non-payment of rent. The Tenant requested a review of this order, which request was denied on December 10, 2018.

[6] On December 12, 2018, the Tenant delivered his Notice of Appeal, appealing the Board’s orders terminating his tenancy and denying his review. As of the date of the motion before me, the Tenant had paid no rent for 31 months and owed the Landlord approximately $50,000.00.

[7] An appeal lies to the Divisional Court from an order of the Board, but only on a question of law. The basis for the Landlord’s motion to quash is that the Tenant’s appeal is manifestly devoid of merit.

[8] A court to which an appeal is taken may quash an appeal under s. 134(3) of the Courts of Justice Act where the appeal is manifestly devoid of merit (Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 1976 793 (ON CA), 13 O.R.(2d) 430). An appeal of an order of the Board that does not disclose a question of law may be quashed on the basis that it is manifestly devoid of merit (Jericho Investments Inc. v. Rankel, [2002] OJ No. 3880).

[9] In his Notice of Appeal the Tenant sets out three grounds for appeal and sets out the sections of the Act he is relying on to support his appeal in paragraph 4 of his grounds.

[10] The first ground of appeal is that the Landlord failed to serve the Tenant with the requisite notices to terminate his tenancy. The Tenant made the same submission to the Board and it determined that the Tenant had received notice. This is a question of fact, not a question of law.

[11] The second ground of appeal is that the “Landlord failed to include the last month deposit amount” in his termination application. The Board accepted that the Landlord had not retained the Tenant’s last month deposit and had applied it to the Tenant’s arrears in March of 2017, but found that this did not disqualify the Landlord from pursuing his application to terminate the tenancy. This was a matter that the Tenant could pursue by way of his own application.

[12] This is a question of law. However, the Tenant’s submission on this point is manifestly devoid of merit. The Act provides sanctions against landlords who fail to retain the last month rent deposit. It does not provide that a landlord may not pursue an application to terminate a tenancy on the basis of non-payment of rent if they do not retain the deposit. This case illustrates why imposing such a sanction would be unfair. Landlords who are not being paid rent may not be able to pay their expenses on their properties. If they seek to evict a tenant who is not paying rent they should not be prevented from doing so because the tenant’s actions in not paying rent forced them to use self-help by accessing the rent deposit. There are other ways to sanction this behaviour and the Act provides for them.

[13] The third ground of appeal raised by the Tenant is that the Landlord failed to pay interest on the last month’s rent deposit. My reasons for finding that this ground of appeal is manifestly devoid of merit are essentially the same as my reasons for finding that the previous ground was manifestly devoid of merit.

[14] For these reasons the Landlord’s motion is granted, the Tenant’s appeal is quashed, the stay is lifted and the Sheriff may forthwith enforce the eviction order. The Landlord is entitled to his costs of the motion, which I fix in the amount of $5,000.00, all inclusive.

Sachs J.

Date: July 11, 2019