Erdan Construction Company Ltd. v. Umetsu, 2020 ONSC 1550
DIVISIONAL COURT FILE NO.: 687/19
LANDLORD AND TENANT BOARD NO.: TSL-09619-19-RV
DATE: 20200311
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ERDAN CONSTRUCTION COMPANY LTD.
Romeo Finder, for the Respondent on Appeal (Landlord)
Respondent on Appeal (Landlord)
– and –
ROSEMARY UMETSU and WAYNE UMETSU
Wayne Umetsu, acting in person
Appellants on Appeal
HEARD at Toronto: March 11, 2020
Reasons for Judgment
FAVREAU J. (Orally)
[1] The Landlord, Erdan Construction Company Ltd., brings a motion to quash the appeal from an order of the Landlord and Tenant Board brought by the Tenants, Rosemary Umetsu and Wayne Umetsu.
[2] In a decision dated November 26, 2019, the Board found that the Tenants had not paid their monthly rent of $3,868.40 since May 1, 2019. At the hearing, Mr. Umetsu testified that his wife had made a large rent payment a few days prior to the hearing. The hearing officer held his decision in abeyance to give the Landlord an opportunity to confirm that the Tenants had paid all their arrears. However, a few days after the hearing, the Landlord provided written proof to the Board that the Tenants had put a stop payment on the cheque. The Board then issued an order evicting the Tenants and requiring the Tenants to pay $20,083.84 in outstanding rent.
[3] The Tenants requested a review of the eviction order, but in a decision dated December 9, 2019, the Board denied the request on the basis that there was no serious error in the original order.
[4] The Tenants have filed a notice of appeal dated December 13, 2019 with the Divisional Court. The grounds of appeal state that the tenants did not fully understand at the time of the review request that they could have made arguments that the maintenance and repair issues justified their non-payment of rent. They claim that there are issues with the washing machine, dishwasher, fridge and air ducts, and that this represents a substantial interference with their enjoyment of the tenancy.
[5] Since they filed the notice of appeal, the Tenants have taken no steps to perfect the appeal and they have not paid any of the outstanding rent arrears or their current rent.
[6] At the beginning of the hearing before me, Mr. Umetsu requested an adjournment for the purpose of retaining a lawyer. This matter has already been adjourned twice. The motion was originally scheduled before me on February 10, 2020. The Tenants did not appear that day, and I adjourned the motion because it appeared that they had been short served. The motion was then rescheduled to February 27, 2020. At that time, Mr. Umetsu sent a letter to the Court advising that he was out of the country and the motion was therefore adjourned to today’s date.
[7] Yesterday, Mr. Umetsu contacted the Court requesting an adjournment on the grounds that he intended to retain a lawyer, and that he had been traveling, was feeling unwell and had been advised not to go out. I directed Mr. Umetsu to provide medical evidence of his illness and that he was to participate in the motion via telephone. Prior to the hearing, Mr. Umetsu did not provide any medical evidence of his illness. As planned, the hearing proceeded by telephone.
[8] At the hearing today, I discussed potential terms of an adjournment with Mr. Umetsu. Mr. Umetsu said that he could pay $10,000 by the end of March and the balance of the rent owing by April 19, 2020. The Tenants have paid no rent since December 2018 which is over one year ago. (Besides the order of the Board under review, there was a prior order of the Board dealing with unpaid rent between December 2018 and May 2019 which has not been satisfied.) The outstanding rent now owed is over $50,000. The motion was served on the Tenants several weeks ago. There have already been two adjournments. While Mr. Umetsu says he will pay the outstanding rent if the motion is adjourned, there is a long history of non-payment including a stop payment on a cheque. Under the circumstances, I denied the request for an adjournment.
[9] Section 134(3) of the Courts of Justice Act, R.S.O 1990, c. C.43, gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R.(3d) 1 (C.A.), at para. 6. The Court also has the power to quash an appeal where it is an abuse of process. An appeal brought for the purpose of delaying an eviction while benefitting from the automatic stay and not paying rent has been found to be an abuse of process: Lou v. Abagi, 2018 ONSC 1587 (Sup. Ct.), at paras. 36-37.
[10] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 6, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board that does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.
[11] I am satisfied that this appeal is manifestly devoid of merit and that it is an abuse of process.
[12] The Tenants have not identified any errors of law in the Board’s eviction order or review decision. At the hearing before the Board, the Tenants argued that they ran into financial difficulties that made it difficult for them to pay their rent. Quite rightly, the Board did not accept this as a justification for non-payment of rent over a period of several months. However, the Board gave the Tenants an opportunity to pay their outstanding rent. The Tenants provided a cheque to the Landlord but then placed a stop payment on the cheque.
[13] At the review hearing, the Tenants again renewed their argument that they were having financial difficulties. The Board found that there was no serious error in the Board’s original order.
[14] The maintenance issues raised in the Tenants’ notice of appeal do not raise a question of law. If this was their legitimate explanation for not paying rent, they would presumably have led evidence on this point at the hearing rather than explaining that they were in financial difficulty. The new basis for not paying rent lacks an air of reality. In any event, the Tenants’ own failure to raise an issue or advance relevant evidence at the original hearing or review hearing does not raise a legal issue. Before me today, Mr. Umetsu said that he just wants an opportunity to pay his outstanding rent and show responsibility. Again, this is not a valid ground for an appeal. The appeal is therefore manifestly devoid of merit.
[15] Given the history of this matter, including the fact that the Tenants have not paid rent for over a year and that they have taken no steps to perfect the appeal, it is evident that the appeal is an attempt to further delay the eviction rather than a good faith attempt to pursue a meritorious appeal.
[16] Under the circumstances, I am satisfied that the appeal should be quashed.
[17] I make the following order:
a. The appeal is quashed;
b. The automatic stay of the Board’s decision is vacated;
c. The Tenants are to pay costs to the Landlord in the amount of $2,500 within 30 days of today’s date; and
d. The requirement for the Tenants’ approval of the form and content of the order is waived.
FAVREAU J.
Date of Oral Reasons for Judgment: March 11, 2020
Date of Release: March 12, 2020
v. Umetsu, 2020 ONSC 1550
DIVISIONAL COURT FILE NO.: 687/19
LANDLORD AND TENANT BOARD NO.: TSL-09619-19-RV
DATE: 20200311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ERDAN CONSTRUCTION COMPANY LTD.
Respondent on Appeal (Landlord)
– and –
ROSEMARY UMETSU and WAYNE UMETSU
Appellants on Appeal
ORAL REASONS FOR JUDGMENT
FAVREAU J.
Date of Oral Reasons for Judgment: March 11, 2020
Date of Release: March 12, 2020