CITATION: Atkinson v. Lysak, 2020 ONSC 1878
DIVISIONAL COURT FILE NO.: 659/19
DATE: 20200326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ZOE ATKINSON
Ms Atkinson, self-represented
Appellant / Moving Party
- and -
GORD LYSAK
David Strashin, for the Respondent
Respondent / Responding Party
Read at Toronto: March 25, 2020
REASONS FOR DECISION
D.L. Corbett J.
[1] Ms Atkinson asks for relief from an eviction order of the Landlord and Tenant Board in the midst of the COVID-19 suspension of the court’s in-person hearings.
[2] The court ceased normal operations on March 17, 2020, and since that time has only decided urgent matters. Several cases have arisen respecting tenant evictions during the period of suspended operations, all of which, to date, have been resolved on an interim basis. In the meantime, the Landlord and Tenant Board has indicated that it will not make further eviction orders following directions from the Province to self-quarantine (in appropriate cases) and to observe social distancing, to slow the spread of COVID-19. The Sheriff likewise has announced that she will not enforce eviction orders during the current situation.
[3] The difficulty in this case is that the eviction order was made and recourse to this court was exhausted before the COVID-19 situation led to suspension of normal court operations. Ms Atkinson was given a chance to remain in her unit and to pursue her appeal in this court on terms imposed by Favreau J. on February 19, 2020. Those terms included payment into court of rent arrears and a deadline for perfecting the appeal all by February 28, 2020. Ms Atkinson did not comply with those terms, and the Registrar dismissed her appeal and lifted the stay of enforcement of the Board’s eviction order on March 6, 2020.
[4] Ms Atkinson has understood the import of these decisions throughout. Immediately after Favreau J. released her decision, Ms Atkinson sought an urgent motion to vary or set aside Favreau J.’s order. I denied this request on February 20, 2020 by way of handwritten endorsement:
Ms Atkinson moves to stay the order of Favreau J. and seeks an interim stay pending the hearing of her motion. The request for an interim stay is denied: Ms Atkinson would have to establish a common law basis for a stay, which she cannot do on the record: there is no basis to suppose that the order of Justice Favreau should be varied pursuant to R.37.
Ms Atkinson is entitled to seek a review of Justice Favreau’s order before a panel, but she will not be entitled to a stay in the meantime. Further, it is apparent that Justice Favreau balanced the interests of the parties carefully in her endorsement – Ms Atkinson would have to identify how Justice Favreau’s order would be unfair in order to persuade another judge to stay Justice Favreau’s order. Request for stay denied.
[5] Ms Atkinson then requested an urgent hearing of her motion to review the order of Favreau J. I dismissed this request for the following reasons:
Ms Atkinson seeks an urgent hearing of the motion to review the order of Favreau J. This request is denied. The court cannot accommodate this request, it would be unfair to the other side, and there is no evidence of urgency.
Ms Atkinson should pay the disputed rent as ordered by Justice Favreau. If she succeeds, this could be offset against future rent. If the rent is not paid, the landlord may never recover it if the landlord succeeds. The arrears arise because the tenant stopped paying her full rent without an order from the LTB authorizing a rent abatement.
All of this was before Justice Favreau, and her order that the tenant pay the disputed rent is consistent with the court’s obligation to be fair to both sides.
Ms Atkinson has now made three requests to the effect that she not be required to follow the order of Favreau J. because she disagrees with it. She shall follow that order until such time as it is varied or set aside, and there will be no further hearing on these issues prior to the payment date of February 28th.
[6] Notwithstanding the clear terms of Favreau J.’s order, and this court’s clear directions to Ms Atkinson, Ms Atkinson again sought urgent relief. This request was denied as follows:
There are no further steps available to Ms Atkinson prior to the deadline imposed by Justice Favreau. Prior endorsements have explained that she may seek a review of Justice Favreau’s decision in due course. In the meantime she must comply with Justice Favreau’s order or be subject to the consequences.
I understand that Ms Atkinson does not agree with Justice Favreau’s decision. That does not entitle her to an urgent review of Justice Favreau’s decision, which stands as authoritative. Further requests from Ms Atkinson for urgent relief from Justice Favreau’s order will not be addressed by the court: these questions have been answered already by the Divisional Court. The issues of interim terms and urgent relief have been decided.
[7] It was following these endorsements that, on February 28, 2020, Ms Atkinson failed to pay the disputed rent, following which the Registrar dismissed her appeal on March 6, 2020.
[8] The landlord did not arrange enforcement of the eviction order prior to the interruption of ordinary civil process as a result of COVID-19. Ms Atkinson now seeks urgent relief again, this time on the basis that she is unable to relocate during the current crisis: the YWCA (which provides her with support) does not have options for her at this time, and shelter spaces are all occupied. Ms Atkinson says that she is seriously disabled (which I accept for the purposes of this endorsement), and this makes it very challenging for her to find suitable new accommodation.
[9] The situation of persons like Ms Atkinson has been addressed by Chief Justice Morawetz, who, on March 19, 2020, on motion by the Attorney General of Ontario, ordered as follows (among other things):
- THIS COURT ORDERS that, during the suspension of regular court operations by the Chief Justice, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended unless the court orders otherwise upon leave being granted to a party by the court pursuant to the court’s procedures for urgent motions.
The order is posted on the internet web sites of the Attorney General of Ontario and the Ontario Superior Court of Justice.
[10] No motion has been brought by the landlord for leave to evict Ms Atkinson. Unless and until such a motion is brought and is granted by the court, enforcement of the current eviction order is suspended by the order of the Chief Justice. Thus there is no urgent need for this court to intervene: the Chief Justice has done so already.
[11] I wish to be clear with Ms Atkinson about her current situation, however. The Chief Justice’s order suspending evictions continues only so long as regular court operations are suspended. Once that ends, the landlord will be able to enforce the eviction order. Ms Atkinson may pursue a motion for further relief at that time, if she is so minded, but her motion will not be “urgent” until the suspension of enforcement of eviction orders is over.
[12] I appreciate that Ms Atkinson is in a difficult situation. But it is a situation of her own making. She decided to withhold a portion of her rent because she believed that the landlord was in default of his obligations. She was not entitled to do this. Before Favreau J., she argued that she withheld the rent on principle – the implication being that she had retained the disputed rent, not that she had spent it. Nowhere in her materials before this court has she explained why she did not pay the disputed rent into court by February 28, 2020, in accordance with the order of Favreau J.
[13] There is another point of concern. In her materials, Ms Atkinson speaks of a deteriorating situation at her residence. She places the blame for this situation on others. Now is not the time to weigh in on the merits of these matters. However, the situation she describes in her materials is obviously unacceptable: she has called police 12 times since mid-February, and apparently called 9-1-1 because, in her view, the landlord failed to keep a carbon monoxide detector in proper working order. Ms Atkinson has to find a way to live peaceably in her unit for the time being, until she finds new accommodations or until the COVID-19 situation passes and evictions resume. If the situation at the premises cannot settle into some state of normalcy and decency in the interim, the landlord may move to this court for leave to carry out the eviction. This does not mean the court will grant such a request, but even on just reading Ms Atkinson’s materials, she is not acting reasonably: calling 9-1-1 over a non-functioning carbon monoxide detector is, on its face, irresponsible and unreasonable conduct.
[14] Ms Atkinson refers in her materials to her motion to the panel to review the order of Favreau J., which she indicates is scheduled in April. It is not scheduled any longer. All matters in the Divisional Court have been postponed indefinitely, and only urgent matters will be heard pending resumption of ordinary court business or other direction of the Chief Justice. I ruled in February – before the COVID-19 situation - that this case was not urgent, and that Ms Atkinson would have to comply with the order of Favreau J. in the meantime. Ms Atkinson has not explained her failure to abide by the order of Favreau J., and nothing has changed that would warrant hearing this as an urgent matter in the current circumstances.
[15] I appreciate that Ms Atkinson is self-represented and may not well understand the court process. The order of Justice Favreau authoritatively disposes of the matters decided by Her Honour. That order permitted Ms Atkinson an extension of time, but on conditions. Nothing filed by Ms Atkinson since the decision of Favreau J. raises any question about the reasonableness of those conditions: like every tenant, Ms Atkinson must pay her rent unless she has been relieved of that obligation by the LTB or the court. Requiring her to secure disputed rent is a standard and reasonable term. Since she purports to have withheld a portion of her rent on principle, she should still have it. If she does not, she has not put forward evidence of this fact, nor has she explained why she did not retain the rent she withheld unilaterally, “on principle”. In short, nothing has changed altering the equities between the parties: what has changed is that the consequences for Ms Atkinson are suddenly and extraordinarily different. The order of the Chief Justice will give her some relief from the consequences of the situation, but when the immediate situation passes, she will still be subject to the eviction order she now faces as a result of her non-compliance with the order of Favreau J.
[16] Finally, I note the process followed in this matter. The court directed Ms Atkinson to serve and file a notice of motion and an affidavit, unsworn if Ms Atkinson was not able to get the affidavit commissioned, on the basis that Ms Atkinson could affirm or swear to the truth of the affidavit during a teleconference hearing.
[17] Upon reviewing the materials filed by Ms Atkinson and on behalf of the landlord, I have concluded that an oral hearing is not required, in light of the order of the Chief Justice, which has the effect of granting the relief Ms Atkinson could have obtained from this court. Ms Atkinson’s motion is therefore moot as a result of the Chief Justice’s order, and I dismiss it without an oral hearing, without prejudice to a fresh motion if circumstances change and there is a basis for urgent relief for either party.
[18] I have directed the Registrar to place Ms Atkinson’s motion to review the order of Favreau J. on a list of non-urgent matters to be scheduled before the panel as soon as Divisional Court begins to hear any non-urgent matters. The parties will hear from Divisional Court staff with the date for that hearing once the Chief Justice authorizes hearings of non-urgent matters.
D.L. Corbett J.
Released: March 26, 2020
CITATION: Atkinson v. Lysak, 2020 ONSC 1878
DIVISIONAL COURT FILE NO.: 659/19
DATE: 20200326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ZOE ATKINSON
Applicant
- and -
GORD LYSAK
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: March 26, 2020