Young v. CRC Self-Help
Ontario Reports
Ontario Superior Court of Justice
Divisional Court, Favreau J.
March 26, 2020
150 O.R. (3d) 355 | 2020 ONSC 1874
Case Summary
Appeals — Jurisdiction — Divisional Court — Tenant in subsidized housing evicted for breach of terms of mediated settlement agreement — Landlord and sheriff executing eviction and changing locks before tenant filing appeal of eviction order — Tenant moving to reinstate tenancy pending appeal — Divisional Court had jurisdiction to grant relief sought — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2).
Civil procedure — Motions — Tenant in subsidized housing evicted for breach of terms of mediated settlement agreement — Landlord and sheriff executing eviction and changing locks before tenant filing appeal [page356] of eviction order — Tenant moving to reinstate tenancy pending appeal — Divisional Court had jurisdiction to grant relief sought — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2).
Courts — Jurisdiction — Divisional Court — Tenant in subsidized housing evicted for breach of terms of mediated settlement agreement — Landlord and sheriff executing eviction and changing locks before tenant filing appeal of eviction order — Tenant moving to reinstate tenancy pending appeal — Divisional Court had jurisdiction to grant relief sought — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2).
Landlord and tenant — Residential tenancies — Eviction — Tenant in subsidized housing evicted for breach of terms of mediated settlement agreement — Landlord and sheriff executing eviction and changing locks before tenant filing appeal of eviction order — Tenant entitled to reinstatement of tenancy pending appeal, having met requirements of serious issue to be tried, irreparable harm and balance of convenience.
The appellant was a veteran who suffered a workplace injury and whose only source of income was from Ontario Works. He was a tenant in building complex owned by the respondent, which provided affordable alternative housing for those hard to house. In 2016, the parties reached a mediated settlement in which the appellant was ordered not to post items or symbols of any kind in the common areas of the residential complex. In 2019, the respondent applied to the Landlord and Tenant Board ex parte to evict the appellant for breach of that order. The board made an eviction order in November 2019. The appellant requested a review, resulting in a stay of eviction. On January 21, 2020, the board confirmed the eviction and lifted the stay. The appellant did not move out of his unit by the deadline of February 1, but filed a review of the eviction order. On February 19, the appellant attended the board to discover that his review request had been denied the previous day. He returned to his unit to find that the sheriff's office had executed the eviction and that the lock had been changed, resulting in the commencement of an appeal to the Divisional Court and a stay of the eviction order. The respondent refused to allow the appellant back into his unit. The appellant moved for an order to reinstate his tenancy pending the hearing of the appeal.
Held, the motion should be allowed.
The Divisional Court had jurisdiction to reinstate the tenancy pending the hearing of the appeal. There was a broad jurisdiction under s. 134(2) of the Courts of Justice Act, which provided that a court may make any interim order considered just to prevent prejudice to a party pending an appeal. The appellant filed his appeal in time so there was no reason to deprive him of his rights simply because the respondent and the sheriff acted swiftly in executing the eviction order.
The test for interim relief was met. The January 21 order made no reference to the appellant's circumstances other than the fact that he had entered into an agreement not to post symbols. The board did not consider that there was no evidence that the appellant had not complied with the other terms of the settlement agreement, that the breach was relatively minor, that the breach came three years after the settlement was reached, that the appellant was on social assistance and that he depended on a rent subsidy for housing. The February review order found that the Board considered the appellant's circumstances, but nothing in the original decision justified the finding. The low threshold for a serious issue to be tried was met. In light of the appellant's homelessness and low income in the context of the COVID-19 pandemic, he met the [page357] requirement to show irreparable harm and likely would have done so even without the pandemic. As the respondent had relied on a relatively minor breach of the settlement agreement in support of the eviction, evidence that the appellant was a difficult tenant who had engaged in threatening behaviour was insufficient to establish that the balance of convenience favoured the respondent.
401701 Ontario Ltd. v. Aronow, [1992] O.J. No. 1718 (Gen. Div.); Ecuhome Corp. v. Darkwa, [2019] O.J. No. 3056, 2019 ONSC 3546 (Div. Ct.); Hendricks v. Mylavarapu, 2019 ONSC 4647 (Div. Ct.); King-Winton v. Doverhold Investments Ltd., [2016] O.J. No. 827, 2016 ONSC 1109 (Div. Ct.), consd
RJR-MacDonald Inc v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, J.E. 94-423, 60 Q.A.C. 241, 54 C.P.R. (3d) 114, 46 A.C.W.S. (3d) 40, REJB 1994-28671, apld
Other cases referred to
2169205 Ontario Inc (c.o.b. Lefroy Freshmart) v. Ontario (Liquor Control Board), [2010] O.J. No. 4310, 2010 ONSC 5382, 268 O.A.C. 365, 193 A.C.W.S. (3d) 1286 (Div. Ct.); Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692, 226 O.A.C. 56 (Div. Ct.)
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2)
Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 78(1), (6), (9) [as am.], (10) [as am.], (11) [as am.], 83(1), (2), 210(1)
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 21.2 [as am.], 23(1), 25(1)
MOTION to reinstate tenancy pending hearing of appeal from eviction order.
Seema Kawar and Lesli Bisgould, for appellant.
Spencer F. Toole, for respondent.
FAVREAU J.: —
Introduction
[1] Devin Young brings a motion to reinstate his tenancy pending the hearing of his appeal from an eviction order made by the Landlord and Tenant Board (the "Board").
[2] For the reasons below, the motion is granted.
Background Facts
[3] Mr. Devin was a tenant in a unit in a building complex owned by the respondent, CRC Self-Help ("CRC"), at 306 Berkley Street, Toronto.
[4] "CRC" is short for "Christian Resource Centre". As part of its mandate, CRC provides affordable alternative housing for people who are hard to house.
[5] Mr. Devin is 51 years old. He is a veteran. He suffered a workplace injury in 2008. After his accident, Mr. Devin was homeless or [page358] lived in temporary housing until 2012, when he moved into the building owned by CRC. Mr. Devin's only source of income is from Ontario Works. He receives $464 per month. His rent for the subsidized unit owned by CRC was $119 per month.
[6] In 2016, CRC brought an application to the Board to evict Mr. Devin. The parties participated in a mediation at the Board and reached a settlement reflected in an order of the Board dated November 2, 2016. The settlement contained a number of terms directed at Mr. Devin's behaviour, including a term that required Mr. Devin not to
substantially interfere with the reasonable enjoyment of the residential complex by the Landlord or another tenant, by among other things posting items or symbols of any kind in the common areas of the residential complex (with exception of the garden planters which are property of Mr. Young and only in the backyard), interfering with or destroying other tenant's plants in the garden of the residential complex, taking, damaging, altering or disposing of other tenant's or the Landlord's property[.]
(Emphasis added)
[7] The mediated settlement also provided that CRC could apply without notice to the Board to terminate the tenancy and evict Mr. Devin if he did not comply with the terms of the order.
[8] In 2019, CRC applied to the Board ex parte for an order evicting Mr. Devin on the basis that he did not comply with the terms of the settlement order. Specifically, CRC put forward evidence that Mr. Devin had painted a symbol on the door of his unit and that he had painted symbols on cinder blocks and other items in the yard of the building.
[9] On November 12, 2019, the Board made an order evicting Mr. Devin. The Board found that Mr. Devin did not comply with the terms of the mediated settlement by painting a symbol on his door and by painting symbols on cinder blocks and wooden planks in the yard of the complex. The Board ordered that Mr. Devin was to vacate the unit by November 23, 2019, failing which CRC could file the order with the Sheriff's office.
[10] Mr. Devin requested a review of the Board's eviction order, which resulted in a stay of the eviction. The hearing was held on January 14, 2020. On January 21, 2020, the Board released its decision, confirming the eviction and lifting the stay. The Board found that Mr. Devin breached the settlement agreement by marking the door of his unit with symbols made out of ash. The Board found that Mr. Devin did not breach the agreement by painting cinderblocks or other items in the complex. The Board nevertheless confirmed the eviction based on the following reasoning:
I find that the Board has a general obligation to uphold and enforce mediated agreements that are voluntarily entered into by landlords and tenants. [page359] Without the upholding and enforcement of voluntary agreements, there is no incentive for parties to agree to enter into the agreements. In this case, the Tenant freely entered into an agreement to not put symbols in the common areas of the residential complex. The Tenant testified that he understood that his religious symbols could not be put in the common areas of the complex with the exception of the garden planters and agreed to that.
On the evidence before the Board, I find that the Tenant chose to disregard the mediated agreement and placed his symbol in a common area contrary to the mediated agreement that he entered into.
As the Tenant has breached the mediated agreement, the tenancy will be terminated.
[11] The Order provided that Mr. Devin was to move out of his unit by February 1, 2020, and that, if he failed to do so, CRC could file the eviction order with the Sheriff's office on February 2, 2020.
[12] Mr. Devin did not move out of the unit on February 1, 2020, and the Board filed the eviction order with the Sheriff's office on February 2, 2020.
[13] Through counsel, Mr. Devin filed a request for review of the eviction order on February 14, 2020. This second request for a review did not give rise to a stay of the eviction order.
[14] On February 19, 2020, Mr. Devin attended the Board to find out about the status of his review request. The Board informed him that his request for a review hearing was denied and that the review decision was issued on February 18, 2020.
[15] In its February 18, 2020 decision, the Board found that there had been no serious error in the earlier proceedings. In particular, the Board member who denied the request for a review made the following determinations:
The Member essentially found that she was not satisfied that it would not be unfair to set aside the eviction order since the Tenant voluntarily entered into the mediation agreement, he understood the terms of the agreement and he appreciated the consequences of the breach. The member also considered the overall notion of fairness as it relates to honouring agreements that parties voluntarily enter into in good faith to resolve matters at the Board.
In the review, the Tenant claims that the Member did not specifically consider the following circumstances that he disclosed at the hearing: this was the Tenant's first breach of the mediation agreement; the Tenant has since removed the symbol from his door; the Tenant is motivated to maintain the tenancy; the Tenant has a history of homelessness; and the Tenant has a limited fixed income.
Even considering the above circumstances, the hearing Member had a reasonable basis for denying the motion -- the parties voluntarily entered into [page360] the mediation agreement and the Tenant voluntarily and knowingly engaged in conduct that he ought to have known to be in breach of the agreement. This reasoning is grounded in the evidence and submissions that were presented at the hearing. The circumstances disclosed by the Tenant do not undermine that reasoning. Accordingly, I am not satisfied that the Member exercised his discretion under section 78(11)(b) improperly or unreasonably. The ultimate decision that it would not be fair to set aside the eviction order was within the range of reasonable outcomes. Therefore, the review is denied.
[16] After obtaining the decision denying his request for a review, Mr. Devin returned to his unit to find that the Sheriff's office had executed the eviction and that the lock to his unit had been changed.
[17] With the assistance of counsel, Mr. Devin commenced an appeal to the Divisional Court on February 20, 2020. On February 24, 2020, he also obtained a certificate from the Divisional Court staying the eviction order. However, CRC has refused to allow Mr. Devin back into his unit given that the Sheriff's office had already enforced the eviction. The unit has not yet been rented to another tenant.
[18] Mr. Devin's parents are deceased and he is not to close to his siblings or other family members. Mr. Devin has been living in homeless shelters since February 19, 2020.
[19] Mr. Devin brings this motion for an order that his tenancy be reinstated pending the hearing of the appeal.
[20] Given the current COVID-19 pandemic, the Divisional Court, as other courts in Ontario, is only hearing urgent matters. On March 19, 2020, Corbett J. made an order permitting this motion to proceed as an urgent motion.
[21] I heard the motion via telephone conference on March 24, 2020. At the beginning of the telephone conference, CRC's affiant and Mr. Young affirmed the affidavits that had been filed by their lawyers on the motion.
Statutory Scheme
[22] Before getting to the analysis, it is worth reviewing the relevant provisions of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.
[23] Section 78(1) of the Act allows for landlords and tenants to enter settlement agreements that can be enforced without notice if the tenant breaches a term of the agreement:
78(1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied:
The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant. [page361]
A settlement mediated under section 194 or order made with respect to the previous application,
i. imposed conditions on the tenant that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application, and
ii. provided that the landlord could apply under this section if the tenant did not meet one or more of the conditions described in subparagraph i.
- The tenant has not met one or more of the conditions described in subparagraph 2 i.
[24] Section 78(6) gives the Board the power to end a tenancy if "the Board finds that the landlord is entitled to an order under subsection (1)".
[25] Section 78(9) of the Act provides that a tenant can bring a motion to set aside an order made under s. 78(1), and s. 78(10) provides for an automatic stay of an order made under s. 78(1) while the motion to set aside is pending.
[26] Pursuant to s. 78(11), the Board has the power to set aside an eviction order made under s. 78(6) "if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6)".
[27] Section 83(1) and (2) of the Residential Tenancies Act requires the Board to have regard to "all the circumstances" before making an eviction order:
83(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. . .
(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).
[28] The Board has the power to review its own decisions in accordance with s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and the rules of the Board. However, a request for a review does not lead to an automatic stay of an eviction order.
[29] Section 210(1) of the Residential Tenancies Act provides that "[a]ny person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law".
[30] Pursuant to s. 25(1) of the Statutory Powers Procedure Act, a tenant who appeals an eviction order is entitled to an automatic stay of the order unless the court orders otherwise. [page362]
Analysis
[31] Mr. Devin argues that this court has jurisdiction to reinstate his tenancy pending the hearing of the appeal pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. In addition, Mr. Devin argues that he meets the three-part test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, which is to be applied on a motion for interim relief pending an appeal.
[32] Relying on a number of cases, CRC argues that the court does not have jurisdiction to reinstate Mr. Devin's tenancy once the sheriff has executed the eviction order. Alternatively, CRC argues that Mr. Devin does not meet the test in RJR-MacDonald.
[33] There are therefore two issues to be decided on this motion:
(a) Does the Divisional Court have jurisdiction to reinstate Mr. Devin's tenancy pending the hearing of the appeal?
(b) If the court has jurisdiction, do Mr. Devin's circumstances meet the test in RJR MacDonald?
Issue 1 -- Whether the Divisional Court has jurisdiction to reinstate Mr. Devin's tenancy
[34] Mr. Devin relies on s. 134(2) of the Courts of Justice Act to argue that this court has jurisdiction to reinstate Mr. Devin's tenancy pending the hearing of his appeal. Section 134(2) provides as follows:
134(2) On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.
(Emphasis added)
[35] CRC relies on three decisions of this court and one decision of the Superior Court to argue that the court does not have jurisdiction to reinstate a tenancy once the Sheriff's office has executed an eviction order.
[36] I find that s. 134(2) of the Courts of Justice Act gives the court broad jurisdiction to grant relief pending the hearing of an appeal, including the relief sought on this motion. With the greatest of respect, the decisions relied on by CRC did not include a consideration of s. 134(2) of the Courts of Justice Act nor did they provide a rationale for the finding that the court has no jurisdiction to reinstate a tenancy after the Sheriff has executed an eviction order.
[37] The earliest decision relied on by CRC is 401701 Ontario Ltd. v. Aronow, [1992] O.J. No. 1718, 1992 CarswellOnt 2754 (Gen. Div.), which did not involve an appeal but, rather, a motion [page363] to set aside a writ of possession issued by a deputy registrar. The tenant argued that there were irregularities in the proceedings below and that the writ should not have been issued. Gibson J. denied the motion on a number of grounds, including a finding that he did not have jurisdiction to set aside the writ of possession once is was executed by the Sheriff. The motion judge stated that there were two lines of cases addressing whether the court has the authority to set aside a writ of possession once it is executed, and that he preferred the cases that found that there was no jurisdiction. No rationale is provided for this approach. Notably, the motion judge found that, even if he had jurisdiction, he would not have set aside the writ because the irregularities were not significant and because the tenant had a history of non-compliance.
[38] This court has refused to reinstate a tenancy pending an appeal in at least three cases relying in part either directly or indirectly on the decision in 401701 Ontario Ltd: see King-Winton v. Doverhold Investments Ltd., [2016] O.J. No. 827, 2016 ONSC 1109 (Div. Ct.), at para. 2; Hendricks v. Mylavarapu, 2019 ONSC 4647 (Div. Ct.), at para. 7; and Ecuhome Corp. v. Darkwa, [2019] O.J. No. 3056, 2019 ONSC 3546 (Div. Ct.), at para. 18. However, none of those decisions considered the court's powers under s. 134(2) of the Courts of Justice Act or provided a rationale for the finding that the court has no jurisdiction to reinstate a tenancy pending an appeal from an eviction order. In addition, and most significantly, in each of those cases the court first found that the appellants did not meet the test in RJR-MacDonald because the appeals lacked merit and/or because of the appellants' behaviour.
[39] I also note that, in Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692, 226 O.A.C. 56 (Div. Ct.), at para. 17, this court questioned the holding in 401701 Ontario Ltd that a court does not have jurisdiction to reinstate a tenancy once writ of execution has been executed. In Kwak, the court was dealing with the Board's authority to reinstate a tenancy. The court held that the Board has the authority to reinstate a tenancy after a tenant is evicted by the Sheriff's office pursuant the Board's power under s. 23(1) of the Statutory Power Procedure Act to make any order to prevent an abuse of process. In my view, the same reasoning applies here. The Courts of Justice Act gives the court broad powers to make an order to prevent an injustice pending an appeal.
[40] I can see no rationale for a blanket finding that the court does not have jurisdiction to grant the relief sought in this case on the basis that the Sheriff's office executed the eviction order before the appeal was commenced. Mr. Devin commenced his [page364] appeal within the prescribed time under s. 210(1) of the Residential Tenancies Act and, as such, he is entitled to an automatic stay of the eviction order pursuant to s. 25(1) of the Statutory Power Protection Act. There is no reason for Mr. Devin to be deprived of this right simply because the CRC and the Sheriff acted swiftly in executing the eviction order. The circumstances may be different if Mr. Devin was late in filing his appeal, but in this case he filed his appeal the day after he obtained the review decision. There was in fact no opportunity for him to appeal before the eviction.
[41] CRC's counsel argues that Mr. Devin should have protected his interests by filing an appeal at the same time as he filed a request for a review. He points out that CRC had alerted Mr Devin's counsel on February 3, 2020 that the eviction order had already been filed with the Sheriff's office. This suggestion is impractical, inefficient and unfair. The Board's rules provide for a right of review. The tenant should not be expected to go through the expense and complication of filing an appeal at the same time as a review request. Proceedings before the Board are meant to be accessible and efficient.
[42] In some cases, the unit may be rented to a third party after an eviction and before an appeal is filed. While this may affect the balance of convenience aspect of the RJR-MacDonald test, it does not oust the court's jurisdiction to reinstate a tenancy pending an appeal from an eviction order in appropriate cases. In any event, the unit has not been rented to a third party in this case.
[43] Ultimately, in many cases, the utility of an appeal from an eviction order disappears if the tenant is not allowed to stay in the rented unit. The automatic stay available in most cases reflects this concern. Given the broad language of s. 134(2) of the Courts of Justice Act, I find that this court has jurisdiction to grant the relief requested by Mr. Devin.
Issue 2 -- Whether the test for interim relief is met
[44] The parties agree that, if the court has jurisdiction to grant a reinstatement of the tenancy, the following three-part test for injunctive relief set out in RJR-MacDonald applies:
(a) Is there a serious issue to be tried?
(b) Will Mr. Devin suffer irreparable harm if the motion is refused?
(c) Does the balance of convenience favour granting the motion? [page365]
[45] In my view, the proposed appeal and circumstances of the case meet all three branches of the test.
A serious issue to be tried
[46] I find that there is a serious issue to be tried.
[47] The threshold for a serious issue to be tried is low. The moving party is only required to demonstrate that the matter is not frivolous or vexatious: 2169205 Ontario Inc. (c.o.b. Lefroy Freshmart) v. Ontario (Liquor Control Board), [2010] O.J. No. 4310, 2010 ONSC 5382 (Div. Ct.), at para. 12. In the context of an appeal from a decision of the Board under s. 210(1) of the Residential Tenancies Act, 2006, a proposed appeal does not raise a serious issue if the appeal is not on a question of law.
[48] Mr. Devin challenges the Board's eviction order and review decision on the basis that the Board failed to consider "all of the relevant circumstances" when deciding to evict him.
[49] There is no dispute that the failure to consider relevant factors would constitute an error of law. But CRC's counsel argues that Mr. Devin challenges the weighing of evidence, which he argues at most is an error of mixed fact and law.
[50] I am satisfied that the proposed appeal may raise a question of law, and in particular an issue as to the scope of factors the Board is required to consider when deciding whether to make an order evicting a tenant under s. 78(11) and 83(1) of the Residential Tenancies Act, 2006.
[51] As reviewed above, s. 78(11) of the Residential Tenancies Act requires the Board to "hav[e] regard to all of the circumstances" when considering a request to set aside an ex parte eviction order made based on the breach of settlement order. In addition, s. 83(1), which applies to all evictions, gives the Board the power to refuse to make an eviction order unless it is satisfied "having regard to all of the circumstances" that it would be unfair to do so. Section 83(2) precludes the Board from making an eviction order unless is has undertaken the necessary analysis under s. 83(1). While "all of the circumstances" are not defined, it is clear that eviction orders are significant and are not to be made without considering all of the circumstances surrounding the proposed eviction.
[52] In the order issued January 21, 2020, the Board made no reference to Mr. Devin's circumstances, other than the fact that he entered into an agreement not to post symbols in common areas of the apartment complex and that he should be bound by that agreement. The Board did not consider that there was no evidence that Mr. Devin had not complied with the other terms of the settlement agreement, that the breach was relatively minor, that the breach [page366] came three years after the settlement was reached, that Mr. Devin is on social assistance and that he depends on a rent subsidy for housing.
[53] The review order of February 18, 2020 makes a finding that the Board did consider Mr. Devin's circumstances in its January 21, 2020. However, the Board makes this finding in a conclusory fashion, without pointing to any aspect of the original decision that justifies the finding.
[54] During the hearing I conducted, counsel for the parties undertook to provide me with decisions dealing with what the Board is required to have regard to when considering "all of the circumstances" under ss. 78(11) and 83(1) of the Residential Tenancies Act. Counsel for both parties sent me a number of decisions following the hearing, however none of them were exactly on point. Nevertheless, given the direction in both of these sections to consider "all of the circumstances" and that there is no evidence that the Board considered anything other than Mr. Devin's agreement to the settlement and his minor breach of the settlement, I find that the appeal raises a serious issue to be tried.
Irreparable harm
[55] I find that Mr. Devin will suffer irreparable harm if the motion is refused.
[56] At the hearing, CRC's lawyer argued that Mr. Devin did not provide sufficient evidence of irreparable harm and that there are prior decisions of the court finding that eviction or risk of eviction on its own is not sufficient evidence of irreparable harm.
[57] It is important to emphasize that this motion was brought in the context of the COVID-19 pandemic. On March 20, 2020, Chief Justice Morawetz made an order suspending the eviction of all tenants from their homes in Ontario unless an order is obtained from the court allowing the eviction. In addition, the Board itself has suspended all eviction hearings, except for hearings dealing with urgent issues such as illegal acts or matters of impairment of health. On their own, these two initiatives make clear that these are not ordinary times and that everyone has an interest in having a home that allows them to stay healthy and assist in preventing the spread of the virus.
[58] Mr. Devin's evidence is that he is currently homeless and living in homeless shelters. His evidence is also that, given his low income, it would be very difficult for him to find alternative housing that he can afford, especially during the current health crisis.
[59] Even without the pandemic, Mr. Devin would likely meet the requirement to show irreparable home. During the current [page367] situation, when all Ontarians are being urged to practice social isolation for their own health and to prevent the spread of the virus, there is no doubt that if Mr. Devin is not restored to his unit, he faces a real risk of irreparable harm.
Balance of convenience
[60] I find that the balance of convenience favours Mr. Devin.
[61] On the motion, CRC filed an affidavit that sets out evidence of Mr. Devin's conduct in 2016 and 2018, suggesting that he is a difficult tenant and that he has engaged in threatening conduct towards other residents in the past.
[62] This evidence is not sufficient to convince me that the balance of convenience favours CRC. First, none of the conduct at issue is recent. Second, CRC did not rely on this conduct to evict Mr. Devin; rather, CRC relied on what can only be seen a relatively minor breach of the settlement agreement not to post symbols in common areas of the building complex. If Mr. Devin's conduct was sufficiently serious, presumably CRC would have sought an eviction order on that basis. Finally, if Mr. Devin engages in unlawful conduct or his behaviour poses a threat to the health and safety of other residents once he returns to his unit, CRC can address the issue by bringing an urgent application to the Board. However, based on the evidence on the motion, I am not satisfied that the balance of convenience favours CRC.
[63] Given the current global health crisis, the risk to Mr. Devin if he is not allowed to return to his unit and self-isolate significantly outweighs the speculative evidence that he may disrupt the lives of other residents if he is allowed to resume residence in his unit.
Conclusion
[64] For the reasons above, the motion is granted. Mr. Devin's occupancy of his unit is to be reinstated by no later than 4:00 p.m. on Friday, March 27, 2020 until the outcome [of] his appeal from the Board's eviction order is determined. As agreed between the parties, there shall be no costs of this motion.
[65] Before concluding, I make two observations.
[66] First, this motion should not have been necessary. Given the current pandemic, including the order made [by] the Chief Justice suspending all evictions and the direction of the Board that only urgent eviction matters will be heard, one would expect that landlords such as the CRC would work co-operatively with tenants to ensure that tenants are not left without a home pending the hearing of an appeal. [page368]
[67] Second, and the flip side of my first comment, the Chief Justice's order and the Board's direction do allow for urgent eviction hearings or the enforcement of eviction orders in appropriate circumstances. Therefore, while I was not persuaded that CRC's evidence was sufficient to prevent Mr. Devin from returning to his unit, if Mr. Devin does engage in unlawful behaviour or behaviour that endangers other tenants, his right to remain in his unit may be revisited and Mr. Devin should therefore ensure that he abides by the terms and spirit of the settlement agreement and other legal obligations arising from his tenancy pending the hearing of the appeal.
Motion allowed.
End of Document