CITATION: Chalich v. Alhatam, 2020 ONSC 2569

DIVISIONAL COURT FILE NO.: 030/20

DATE: 20200425

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ABED CHALICH

Respondent/Moving Party

– and –

DHARGHAM ALHATAM

Appellant/Responding Party

David Strashin for the Moving Party

Self-represented

HEARD: April 23, 2020

kristjanson j.

[1] The landlord, Mr. Chalich, seeks an order directing the Sheriff to enforce an eviction order issued by the Landlord and Tenant Board, arguing that the continued tenancy may jeopardize a real estate closing scheduled for April 30, 2020.

[2] The motion raises two issues.

[3] Once the Divisional Court has dismissed an appeal from the Landlord Tenant Board, does the Court retain jurisdiction to order the Sheriff to enforce the eviction order on an urgent basis during the COVID-19 pandemic?

[4] If not, then sitting as a judge of the Superior Court of Justice, should I order the Sheriff to carry out the eviction despite the provincial eviction moratorium, even though the tenant’s failure to move is directly related to the pandemic?

Background Facts

[5] The moving party, Mr. Chalich, executed an agreement of purchase and sale for a condominium unit occupied by the responding party, Mr. Alhatam. The agreement of purchase and sale was signed in August 2019 with a completion date of October 31. The landlord was to deliver vacant possession. The landlord sought to evict the tenant. The tenant unsuccessfully pursued the matter at the Landlord and Tenant Board. On November 13, 2019 the Board terminated Mr. Alhatam’s residential tenancy. The Board ordered that the landlord could file the eviction order with the Court Enforcement Office (Sheriff) after November 25, 2019. Once the order was filed with the Sheriff, the Sheriff was directed to give vacant possession of the unit to the landlord.

[6] The tenant sought a review by the Board. The Board affirmed the November eviction order. The tenant appealed to the Divisional Court under section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. 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.

[7] The tenant arranged to move. On February 17, 2020, the tenant signed a lease agreement with a new landlord for an apartment commencing on May 1, 2020. The tenant and the landlord in this case then negotiated a resolution, which included entering into a consent order.

[8] On March 18, 2020, Justice Corbett issued the Consent Order dismissing the appeal, vacating the stay, and ordering that the eviction order of the Landlord and Tenant Board could be enforced.

[9] The next day Chief Justice Morawetz imposed a provincial eviction moratorium, issuing an order with the following term:

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.

[10] Regular court operations were suspended by the Chief Justice effective March 17, 2020. In a Notice to the Profession dated March 15, 2020, the Chief Justice set out interim procedures for parties to bring urgent civil and commercial motions, including “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.”

[11] Justice Favreau issued a direction granting the landlord leave to bring the motion on an urgent basis, to be heard by telephone, because the real estate closing scheduled for April 30, 2020 might not proceed if the eviction order was not enforced.

[12] The residential sale of this property was originally scheduled to close October 31, 2019. Due to the Landlord and Tenant Board proceedings, however, the closing of the transaction was extended several times. Since October 31, 2019, the landlord has paid the purchaser’s monthly rent of $2,300.00, additional moving costs of $400.00, and additional legal costs of the extensions of $1550.00. The landlord has paid both the property taxes and common expenses for the condominium unit. The closing date has been extended until April 30, 2020.

Issue #1: Does the Divisional Court have jurisdiction?

[13] The Divisional Court is a statutory court with two broad areas of jurisdiction. It exercises civil appellate jurisdiction, hearing appeals from certain Superior Court judgments and orders and from Small Claims Court judgments. It also exercises a broad supervisory jurisdiction over administrative tribunals and public decision-makers, through applications for judicial review and statutory appeals from decisions of administrative decision-makers.

[14] As to evictions, the Divisional Court has jurisdiction to hear statutory appeals from the Landlord and Tenant Board under the Residential Tenancies Act, 2006. Once an appeal is dismissed the Divisional Court does not retain jurisdiction to enforce eviction orders except in rare circumstances, for example, the manadamus application in Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469. Section 85 of the Residential Tenancies Act, 2006 provides that an eviction order has the same effect, and shall be enforced in the same manner, as a writ of possession under the Rules of Civil Procedure. In the normal course, eviction orders are enforced by the Sheriff upon filing of the Landlord and Tenant Board’s eviction order and payment of the required fee.

[15] In Morguard Corporation v. Corredor, 2020 ONSC 2166, Myers, J. clarified the enforcement route for eviction orders during the eviction moratorium in Ontario. Rule 60.17 of the Rules of Civil Procedure provides that “[w]here a question arises in relation to the measures to be taken by a sheriff in carrying out an order” a party may make a motion for directions to a judge. As Justice Myers states in para. 12, “the order for leave to evict a tenant despite the moratorium imposed by the Chief Justice’s order is properly a motion for directions under Rule 60.17”, made to a justice of the Superior Court of Justice. Motions for enforcement should not be taken to Divisional Court, and I have no jurisdiction to deal with the motion as a single judge of Divisional Court.

[16] In Toronto, a motion for directions under Rule 60.17 about the Sheriff’s enforcement of eviction orders is to be heard by a single judge of the Superior Court of Justice sitting on the Civil Team.

[17] That said, I recognize the logistical difficulties faced by parties to litigation during the pandemic. It would be inefficient, increasing cost and delay, to traverse the motion to the Civil motions list to be re-assigned and re-heard. Because I was concerned with the question of jurisdiction, before the hearing I requested that Justice Myers, co-Team Lead of the Civil Team in Toronto, assign the matter to me for resolution if I were to find that the Divisional Court lacked jurisdiction. When informed of my ruling on the lack of jurisdiction, the parties agreed to have me hear this as a motion for directions in a civil proceeding pursuant to the Morguard Corporation decision.

Issue #2: Should the Sheriff be ordered to carry out the eviction?

[18] The landlord argues that the eviction moratorium should apply only to tenants who would otherwise be evicted for non-payment of rent, to protect those who have lost income because of COVID-19. I disagee. There are no limiting terms in the Chief Justice’s order, except for urgent motions. It is not limited to those cases where eviction is related to COVID-19 non-payment of rent; it is not restricted to new evictions arising after March 17th. It applies to all evictions. Given its breadth, the clear intent of the Chief Justice’s eviction moratorium was, during the pandemic, to prevent evictions even though the moratorium could be expected to cause significant economic disruption and adverse financial effects. The Landlord and Tenant Board has also suspended eviction hearings except for those dealing with urgent issues such as illegal acts or threats to health: Young v. CRC Self-Help, 2020 ONSC 1874, para. 57. True emergencies will be dealt with. But the primary interest protected is ensuring that everyone stays home and stays healthy during the lockdown period.

[19] The burden is on the landlord, as moving party, to establish that this is an urgent situation which requires eviction of the tenant in the middle of the pandemic. The landlord has not identified a truly urgent situation such as illegal acts by the tenant or threats to health caused by the tenant.

[20] The landlord cites the loss of a real estate closing. I find the landlord’s evidence is speculative, and the landlord has not met his burden of establishing irreparable harm or urgent and compelling circumstances. The evidence of harm must be definite rather than speculative: Grant v. Grant, 2020 ONSC 2455. I find the landlord’s evidence speculative.

[21] The landlord has obtained extensions of the closing date of the agreement of purchase and sale from the purchasers consistently since October 2019. He has certainly had to incur significant costs for those extensions. Yet the landlord chose to sign an agreement of purchase and sale delivering vacant possession when the condominium was occupied by a tenant who pursued a claim at the Landlord and Tenant Board and an appeal to Divisional Court, as was his right. Until the Consent Order of March 18, 2020, the landlord could not deliver vacant possession.

[22] In negotiating a resolution of the Divisional Court appeal with the tenant, the landlord sought an extension of the agreement of purchase and sale, and the purchaser granted an extension until April 30.

[23] To implement the negotiated resolution, the tenant, Mr. Alhatam, acted in good faith. He signed a lease agreement on February 17, 2020 and paid first and last months rent to the new landlord for an apartment available on May 1.

[24] Even so, both parties are now victims of the domino effect. On April 17, the new landlord advised Mr. Alhatam that the unit would not be available until June 1, 2020 as there is a tenant in the unit and he cannot move out at this time. The new landlord’s email states that he cannot evict the tenant, the matter is out of his control because of COVID-19, and the health of the tenant’s family may be at risk if he is evicted.

[25] Mr. Alhatam lives with his wife and his two young children. He and his family cannot be put on the street. I take judicial notice of the fact that it is harder to visit potential apartments because of COVID-19 risks, and of the fact that if an existing tenant refuses to move, as is the case with the new apartment, it is challenging for a landlord to evict the tenant because of the provincial eviction moratorium.

[26] I balance the concerns of the tenant against the landlord’s speculative evidence of harm. There is no evidence that the landlord/vendor has asked for a further extension. There is no evidence that any further extension has been refused. The landlord filed a letter from his real estate lawyer, rather than an affidavit. The lawyer’s letter states merely that:

To our knowledge, the Purchasers have not provided any indication that they guarantee any further extensions should our clients fail to close this transaction on the schedule closing date of April 31, 2020 [sic]. As such, our client is at risk of being held in breach of contract should the Purchaser refuse to grant a further extension.

[27] There is no evidence that the sale will not close. There is no evidence of damages that could be asserted against Mr. Alhatam, or legal defences such as force majeure that might be raised against the purchaser.

[28] The clear intent of the moratorium is to protect tenants in exactly the kind of situation Mr. Alhatam is in. He has been paying the money ordered by the Landlord and Tenant Board. He signed a lease for May 1, which the new landlord defaulted on. The new landlord stated he could not evict the existing tenant but has clarified that the apartment will be available June 1.

[29] The landlord’s counsel properly conceded that even if an order directing enforcement by the Sheriff were issued today, there would be no guarantee that it could be enforced for May 1. There is no evidence before me that the landlord has even filed the eviction order with the Sheriff’s office. As a result, the landlord’s motion is dismissed.

[30] Mr. Alhatam must continue to try to secure a new apartment to give effect to his agreement to vacate the apartment and abandon his appeal as reflected in the Consent Order. I set out terms reflecting this obligation in the order below.

[31] Mr. Alhatam did not ask for costs, and none are awarded.

Order

[32] The landlord’s motion is dismissed, without costs.

[33] Mr. Alhatam is ordered to write to the new landlord, by email, on May 1, May 10, May 15, and May 20 requesting that the new landlord confirm that the unit will be ready June 1, 2020. Mr. Alhatam is to copy Mr. Stashin on these emails. Mr. Alhatam is to provide the new landord’s replies to Mr. Stashin.

[34] I encourage Mr. Alhatam to discuss with the new landlord whether the apartment will really be ready by June 1 and if not, to obtain the return of his deposit and continue his search for an apartment. Mr. Alhatam should keep a record of all apartment searches since if this matter continues, he will be required to show the steps he has taken to obtain a new apartment.

[35] If the new landlord does not confirm vacant possession by May 15, then Mr. Chalich may bring a further motion for directions to me. Mr. Chalich must provide evidence that he has filed the Board’s Order with the Sheriff’s Office and paid the fee for enforcement.

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

Kristjanson J.

Released: April 24, 2020