CITATION: Gharib v. Mohos, 2020 ONSC 1872

DIVISIONAL COURT FILE NO.: 008/20

DATE: 20200324

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

MOHAMMAD REZA GHARIB

Appellant

– and –

SUSAN MOHOS

Respondent

Self-represented

Reshma Kishnani for the Respondent

HEARD: March 23, 2020

kristjanson j.

[1] The Landlord and Tenant Board terminated the tenancy of Mr. Gharib, a renter, and ordered that he be evicted from a property owned by the landlord, Ms. Mohos. Mr. Gharib appealed to this Court on January 3, 2020. The eviction order was stayed pending appeal pursuant to section 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[2] Mr. Gharib did not perfect the appeal within the 30 days set out in Rule 61.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As a result, the Registrar provided notice to Mr. Gharib that the appeal would be dismissed on February 21, 2020 if he did not perfect the appeal. The Registrar extended the appeal period by an additional 10 days to allow Mr. Gharib the chance to perfect his appeal. Mr. Gharib did not do so. The Registrar ordered the appeal dismissed. Mr. Gharib now brings a motion to set aside the Registrar’s dismissal.

[3] The motion was originally scheduled to be heard on March 17, 2020, the day that Superior Court courtrooms in Ontario were closed due to the COVID-19 pandemic. There was urgency to the motion. An interim stay of proceedings was in place until March 17, which prevented eviction pending argument on the motion to set aside the Registrar’s dismissal of the appeal. When the courts closed I extended the interim stay of my own motion until today’s date, and directed that the matter proceed by way of telephone hearing on March 23.

[4] The Province subsequently announced that evictions will not be proceeding at the present time, as a result of the COVID-19 pandemic. Given the indeterminacy of when eviction proceedings will recommence, and the importance to both Mr. Gharib and the landlord, the parties proceeded to argue the motion by telephone. After argument concluded I became aware of an order of Chief Justice Morawetz that during the suspension of regular court operations, the eviction of residents from their homes pursuant to eviction orders issued by the Landlord and Tenant Board are suspended unless the court orders otherwise, and then only with leave granted pursuant to the court’s procedures for urgent motions.

Landlord and Tenant Board Proceedings

[5] There are four orders in issue. The first order is dated July 16, 2019. The landlord applied for an order to terminate the tenancy and evict the tenant on the grounds that the tenant refused to grant the landlord or her agents access to the rental unit three times in February and March, 2019, despite receiving valid notices of entry. Following a hearing in May 2019, Member Olabode found that the landlord was seeking access to the unit (a) to change the locks, and (b) the landlord wanted to list the unit for sale, and wanted the tenant to provide access to the real estate agent when the unit was listed. Member Olabode held that he was satisfied that Mr. Gharib had denied the landlord access to the rental unit after being served with valid notices of entry, and the conduct substantially interfered with the landlord’s lawful rights, privileges and interests. The Member denied the landlord’s application to evict the tenant, on the condition that the tenant provide the landlord with access to the rental unit on receiving valid notice of entry. The Member ordered that if the tenant failed to provide such access, then the landlord could apply under section 78 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, for an order terminating the tenancy and evicting the tenant.

[6] The second order is dated August 9, 2019. Member R. Lang found that Mr. Gharib did not comply with the July 16, 2019 Order. She found that on August 2, the tenant failed to provide the landlord’s agent with access to the rental unit despite receiving a valid notice of entry. Member R. Lang terminated the tenancy effective August 20, 2019 and ordered the eviction could be enforced by the Court Enforcement Office (Sheriff) commencing August 21, 2019.

[7] The third order is dated November 8, 2019. Mr. Gharib filed a motion to set aside the August 9 eviction order. Member A. Solomon held a hearing on September 19, 2019. She denied the tenant’s motion to set aside the eviction order. Member Solomon found on the evidence that the parties did not dispute that the tenant breached the July 16, 2019 order on August 2, 2019 when he denied access to the landlord and her agents after being provided with a valid notice of entry. The tenant had provided entry on June 14th but at the hearing claimed he did not understand that the July 16 order required him to provide further entry. The Member did not accept this evidence, and found his explanation was “unjustified and unreasonable.” The Member specifically found that Mr. Gharib’s “behaviour on August 2nd is consistent with his pattern of denying the Landlord and her agents entry after receiving valid notice of entry.” She found that the tenant “seems intent on keeping the Landlord out of the unit and he appears to want to thwart the sale of the unit and/or changing the locks.” In consideration of his lengthy tenancy – since 2001 – the Member delayed lifting the stay of the eviction order until December 31, 2019. In so doing, Member Solomon held: “I am reluctant to extend this deadline further because the Landlord wishes to sell the rental unit and I am concerned that the Tenant will continue to prevent her efforts to do so.”

[8] The fourth order is dated December 11, 2019. Mr. Gharib requested a review of the November 8, 2019 order, which was completed without a hearing. Member R. Lang found that the tenant’s review request did not identify any errors made in the order. The Member listened to the audio recording of the September hearing, and rejected the grounds of concern raised by the tenant. She held that absent a serious error, “a review is not an opportunity to reargue the case in hopes of a more favourable outcome.” The Member was satisfied that there was not a serious error in the proceeding and confirmed the November 8, 2019 order.

The Appeal

[9] The tenant appeals to this Court pursuant to section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, which provides that an affected party may appeal an order of the Board within 30 days after being given the order, but “only on a question of law.”

The Issue

[10] The only issue is whether the Court should grant the appellant’s motion to set aside the order of the Registrar dismissing the appeal for delay and should extend time for perfection of the appeal.

Law and Analysis

[11] The factors to be considered in determining whether to set aside the Registrar’s dismissal order and extend the time for perfecting the appeal include:

(i) whether the appellant formed an intention to appeal and maintained that intention to appeal;

(ii) the length of the delay and explanation for the delay;

(iii) any prejudice to the respondent;

(iv) the merits of the appeal (not with a view to determining whether the appeal will succeed, but to determine whether it has so little merit that the Court could reasonably deny the important right of appeal); and

(v) whether the “justice of the case” requires granting of the requested extension; i.e., an “umbrella” factor which requires the motions judge to step back, balance the proceeding factors, and consider any other factor that might be relevant in the particular circumstances of the appeal: see Farzana v. Abdul-Hamid, 2016 ONSC 8071 at para. 20.

Intention to Appeal

[12] Mr. Gharib formed an intention to appeal within 30 days of the final (review) order. Consistent with Rule 61.04, he filed a notice of appeal and the appellant’s certificate respecting evidence as required by Rule 61.05(1). The certificate indicated that no transcripts were required. As a result, Mr. Gharib was required to perfect the appeal within 30 days, in accordance with Rule 61.09. He was required to serve and file the appeal book and compendium, exhibit book and factum within 30 days. He failed to do so. Mr. Gharib appears to have taken no further steps other than filing the notice of appeal; while he states he had a continuing intention to appeal, he provided no evidence of the steps taken to try to perfect the appeal or his intention to appeal.

Length of Delay and Explanation

[13] Mr. Gharib was required to file the Rule 61.09 materials to perfect the appeal by February 2, 2020, 30 days. 50 days later, on March 23, Mr. Gharib has filed none of the required materials.

[14] The entirety of Mr. Gharib’s affidavit evidence dated March 5th is that “due to health issues that has arisen in the past weeks, I have not been able to gather the necessary documents required for my appeal.” He appends a letter from a psychologist, not properly introduced as evidence, which states merely that Mr. Gharib “is under psychological treatment for his injuries sustained by his Motor Vehicle Accident.” No additional information is provided as to restrictions or hindrances with respect to Mr. Gharib’s ability to gather documents for his appeal, or what documents he requires that he could not obtain. This falls far short of establishing that Mr. Gharib had a medical explanation for his failure to perfect.

[15] Mr. Gharib argues in his written submission that he has physical and psychological disabilities stemming from his motor vehicle accident, including memory loss and confusion, that mean he is unable to gather the necessary documents. Nothing in the record supports this. Citing health reasons without evidence is not sufficient. Of note, Mr. Gharib was involved in the motor vehicle accident in 2018. He represented himself throughout the Landlord and Tenant Board proceedings in 2019.

[16] In his oral submissions he stated that as a self-represented party he did not know or understand what he needed to do to perfect the appeal. While I appreciate that it is difficult, self-represented parties are required to determine their obligations, and then comply with the Rules of Civil Procedure.

[17] Mr. Gharib now asserts that he has spoken to a lawyer. However, this was not set out in his affidavit filed March 5. He has not retained a lawyer, and did not provide any material from a lawyer indicating that he or she had been retained. Mr. Gharib states that he has been denied Legal Aid, and there is no indication that Mr. Gharib has the funds to retain a lawyer.

Prejudice to the Respondent

[18] The respondent’s evidence is that she has been seeking to sell the property since February/March 2019, when she asked the renter for access to his unit to have her real estate agent list the property. She has filed evidence that her husband has been diagnosed with cancer, and they require access to the funds given his ill health. The delay to date has been eight months since the initial order and is likely to be longer given the present moratorium on eviction due to the pandemic.

The Merits of the Appeal

[19] The tenant’s notice of appeal was filed on January 3, 2020, appealing the orders of August 9, November 8 and December 11, 2019. The first ground of appeal is that the members of the Landlord and Tenant Board “erred in law.” The nature of any error is not specified, and in oral submissions Mr. Gharib did not identify any error of law. I find no error in law.

[20] The second ground of appeal is that the landlord “lied about changing the lock”, so the Board members “made a decision based on a landlord lie.” This is a question of fact, and irrelevant to the decisions of the Board. The eviction order was made on the grounds of denial of entry to the unit, which is a question of fact, not of law.

[21] The third ground of appeal is that the landlord entered the apartment on June 16, 2019. However, the Board did not base its decisions on this entry, and accepted that entry was afforded on June 16. It was the order of July 16, 2019 which required the tenant to afford future entry. The issue leading to the eviction order was the denial of entry on August 2, 2019. This ground is irrelevant, and is a question of fact only.

[22] Pursuant to section 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, appeals to this Court may only be made on a question of law. Mr. Gharib has not raised any question of law. There is no merit to this appeal.

The Justice of the Case

[23] The Landlord and Tenant Board granted an order of eviction after the tenant repeatedly refused to grant the landlord entry over the course of 7 months. The appellant has done nothing to perfect the appeal. The moving party bears the burden of proof on motions to set aside. Mr. Gharib has not met this burden on any issue other than his intention to appeal. The other factors all favour the respondent. Mr. Gharib has no plan for perfecting, and no reasonable excuse for failure to perfect. The landlord needs to sell the unit. There is no merit to the appeal, as no questions of law are raised. The request for an extension of time to perfect the appeal is a ploy by the tenant to extend the time to stay on the property. The interests of justice do not require granting an extension or setting aside the Registrar’s order.

Costs

[24] The respondent has been successful on the motion and is presumptively entitled to costs. She seeks costs on a substantial indemnity basis in the amount of $3,500.00 inclusive. I see no basis for granting costs on a substantial indemnity basis. Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceeding; and (5) to encourage settlements: Fehr v. Sun Life Assurance Company of Canada, 2017 ONSC 2218 at para. 34.

[25] Rule 57.01(1) of the Rules of Civil Procedure provides that in exercising its discretion under section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43, to award costs, the court may consider several specified factors. In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 728, the Court of Appeal, at para. 26, held that the fixing of costs is not simply a mechanical exercise and that, overall, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. Reasonableness and proportionality are touchstones in the fixing of costs.

[26] In this case, Mr. Gharib opposes any order to pay costs, on the grounds that he is on ODSP. His family assists him in meeting his rent payments. He is, he claims, impecunious. However, the limited financial circumstances of a party do not act as a shield against any liability for costs, although this may be considered when setting the quantum of costs or the schedule for payment of costs.

[27] On a partial indemnity basis, the fees incurred by the respondent are $2,250 inclusive of HST, with disbursements of $292.00, including HST, for a total of $2,542.00. This includes 8.5 hours of preparation, and attendance by phone. The lawyer is a 2011 call, and the hourly rate is $355 per hour. I find the costs sought are reasonable and proportional in the circumstances. I set costs at $2,400.00, to be paid by Mr. Gharib at the rate of $400.00 per month for the next six months, commencing on April 1, 2020. Mr. Gharib must continue to pay his rent, which is due on the 1st of each month.

Order

[28] The appellant’s motion to set aside the Registrar’s order is dismissed. The Orders of the Landlord and Tenant Board dated August 9, November 8 and December 11, 2019 are in force.

[29] The Province has presently suspended enforcement of eviction orders. The eviction may be enforced when the Province recommences enforcement through the Court Enforcement Office (Sheriff).

[30] Until the appellant delivers vacant possession to the landlord, or is evicted, he is ordered to continue to pay rent on the 1st of the month.

[31] The appellant is to pay costs to the respondent in the amount of $2,400.00 inclusive of fees, disbursements and HST by paying $400.00 per month for six months, commencing on April 1, 2020.

[32] This endorsement is effective when made. No formal order is required.

Kristjanson J.

Released: March 24, 2020