Court File and Parties

CITATION: Hall Q v. Biason, 2020 ONSC 170

DIVISIONAL COURT FILE NO.: 582/19

DATE: 20200110

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Hall Q, Landlord/Respondent

AND: Norman Biason, Tenant/Appellant

BEFORE: Backhouse J.

COUNSEL: Steven K. Stauffer, Counsel for the Landlord/Respondent

Caryma Fayez Sa’d, Counsel for the Tenant/Appellant

HEARD at Toronto: January 9, 2020

Endorsement

[1] The landlord, Hall Q Corporation, seeks an order dismissing this appeal on the basis that it has no merit and represents an abuse of process. The tenant, Norman Biason, requests an adjournment on the basis that upon being personally served on December 24, 2019 with the landlord’s motion, his counsel immediately advised the landlord’s counsel that she had a scheduling conflict and that the tenant would be out of the country on the date chosen for the motion to be heard.

[2] The issue before the LTB was whether the premises leased by the tenant, known as Unit B-10 Morrow Avenue, Toronto, Ontario, was properly classified as predominantly commercial and therefore exempt from the provisions of the Residential Tenancies Act (“RTA”). Tenant’s counsel has prepared an amended notice of appeal in which an alleged error of law is raised, namely that the Landlord and Tenant Board (“LTB”) failed to apply the correct test under Subsection 5(j) of the RTA. The tenant has now ordered the transcripts of the proceedings before the LTB. The tenant wishes to bring a motion for fresh evidence.

[3] I granted the adjournment on terms. My reasons are set out below.

[4] This matter has been pending since the beginning of 2018. On September 11, 2018, the parties entered into a consent interim order at the LTB. At that time the tenant was 3 months in arrears of paying rent. The parties agreed that the tenant would immediately pay into trust on account of rent the reduced sum of $2500, which would be the rent if the RTA applied and HST was not payable, rather than $3107.50 which included the HST. This arrangement was expected to govern for a short time. The hearing was made peremptory on both parties who were required within 24 hours to provide dates they were available for a hearing.

[5] The hearing was adjourned a number of times and was finally heard on March 26, 2019. On June 5, 2019, the LTB found that the RTA did not apply to the tenant’s lease of the premises. The tenant requested a review of the order.

[6] On June 19, 2019 an interim order was issued by the LTB staying its June 5, 2019 order.

[7] On August 28, 2019 the parties consented to an interim order of the LTB that the funds it held be transferred to the tenant’s legal representative, Oleksandr Pichugin, and that henceforth the tenant continue to pay $2500/month into Mr. Pichugin’s trust account. The transfer of funds never occurred.

[8] On October 15, 2019, the review of the order by the LTB was denied, the order confirmed and the stay of the June 5, 2019 order lifted.

[9] The tenant filed a notice of appeal to the Divisional Court on October 17, 2019 which listed the grounds of appeal as “error of fact, breach of natural justice, errors of law”. The appeal was required to be perfected within 30 days thereafter.

[10] The registrar’s stay of the LTB order was issued on October 23, 2019. Under Rule 63.01 of the Rules of Civil Procedure, an automatic stay pending an appeal made under the RTA is available where a tenancy agreement is terminated or an eviction order is made. Here the order appealed from only provided that the RTA does not apply. There is no basis for the October 23, 2019 registrar’s stay.

[11] Around the end of October, 2019, the tenant attempted to obtain an order from the LTB releasing to him the monies he had been paying into trust pursuant to the interim orders of the LTB. A teleconference was held between Member Olabode of the LTB and the tenant. The landlord was not given notice of the tenant’s request and did not participate in the teleconference. Notwithstanding this, the funds were not released and the LTB continues to hold $35,000 paid by the tenant pursuant to the interim order.

[12] The tenant was given a Divisional Court date in early December, 2019 for the hearing of the appeal. A number of days prior to this date, he requested an adjournment on the basis that he was retaining counsel. The landlord did not consent because of what he considered the tenant’s history of using the courts for delay. The tenant then filed no materials which resulted in the matter being struck from the list.

[13] The tenant paid no rent into trust for November or December, 2019 pursuant to the interim order or otherwise. Starting on December 2, 2019, counsel for the landlord sent numerous requests to the tenant to advise whether he was available on specific dates for a motion to lift the stay and have the rent funds released to the landlord who has received no rent whatsoever since July, 2018. The tenant advised on December 3, 2019 that he would forward the request to his counsel the following day who would get back to the landlord’s counsel shortly. Having been advised by the landlord’s counsel that if they had heard nothing by December 9, 2019, they would be asking the Divisional Court to provide them with a court date for the motion to be heard, the tenant advised that his lawyer, Caryma S’ad, would contact the landlord’s counsel that week and that this would end correspondence between them. At no time did the tenant advise of a pending trip planned to Florida.

[14] The tenant’s counsel did not contact the landlord’s counsel as promised. Counsel for the landlord advised the tenant on December 9, 2019 that if his counsel chose to get on the record, the counsel could call him at any time but on December 10, 2019 they would be proceeding to obtain a court date. He requested the tenant to forward his email on to his proposed counsel.

[15] Still nothing was heard from the tenant’s counsel and accordingly, the date of January 9, 2020 was obtained for the motion. The landlord was put to the expense of serving the tenant personally which occurred on December 24, 2019.

[16] The tenant deposed in his affidavit sworn January 8, 2020 in support of his adjournment request that after informing counsel for the landlord on December 9, 2019 that he would be retaining Caryma Sa’d to assist him, he expected counsel to communicate directly with her going forward. This is specifically contradicted by the correspondence. He also deposed that at the time he booked his trip to Florida, on or about December 20, 2019, for a vacation from December 28, 2019 to January 12, 2020, he was not aware of any upcoming court dates. This is misleading, given that he was aware that the landlord’s counsel had been trying to get a consensual date for the motion since the beginning of December, 2019, that he had been advised that the landlord’s counsel was proceeding to obtain a date from the court and that some of the dates that were proposed were during the time the tenant then booked to be away.

[17] After the tenant was personally served with the motion, on December 24, 2019, counsel for the tenant served (but did not file) a notice of appointment to act and requested an adjournment on the basis of her having a scheduling conflict and the tenant being out of the country.

[18] Counsel attempted to work out terms of an adjournment without success.

[19] The tenant has paid no rent into trust or otherwise for January, 2020.

[20] The rent owed to the landlord under the lease if the appeal is dismissed is $59,042.50. There is a total of $40,000 held in trust ($35,000 by the LTB and $5000 by Oleksandr Pichugin, paralegal). The tenant has remained in the unit and has paid nothing for the last three months. The interim orders that allowed the tenant to pay less than the full rent set out in the lease have been subsumed by the final order of the LTB. There is no automatic stay of the LTB order under Rule 63.01 of the Rules of Civil Procedure.

[21] The tenant’s failure to pay rent for the last 3 months and his conduct of delay suggests that he is using the rules and procedures meant to protect residential tenants to instead manipulate the system.

[22] An adjournment is granted on terms. The return date shall be February 14, 2020 at 2:30 p.m. Both counsel stated that they were available on that that date. The landlord’s motion shall be heard first. If it is unsuccessful, then any motion for fresh evidence and the appeal shall be heard on that date. As I am now familiar with this matter, I shall remain seized.

[23] The adjournment is granted on the following terms:

(a) The $35,000 held in trust at the LTB and the $5000 held in trust with Oleksandr Pichugin, shall be forthwith paid out to the landlord.

(b) The balance owing under the lease (with the HST) of $19,042.50 shall be paid by certified cheque on or before January 22, 2020 to counsel for the landlord to be held in trust until the return of this matter on February 14, 2020.

(c) The tenant shall pay ongoing rent to the landlord in the amount of $3107.50/month until the appeal is heard.

(d) The Registrar’s stay of the LTB orders is lifted.

[24] The landlord seeks costs of today fixed at $5000. The tenant submits that $750 is appropriate. It was only at the last minute that the tenant agreed to the funds in trust being released to the landlord. He does not come to court today with a certified cheque for the 3 months for which he paid no rent, even at the lower amount that he says is owing. In all the circumstances, including the costs thrown away as a result of the tenant’s failure to proceed with the appeal and the delays caused by the tenant in scheduling the landlord’s motion including today’s adjournment, make it appropriate to award costs in the amount of $5000 which I order the tenant to pay within 30 days.

Backhouse J.

Date: January 10, 2020