Court File and Parties

CITATION: Knight v. Radinovsky, 2020 ONSC 279

DIVISIONAL COURT FILE NO.: 668/19

DATE: 2020-01-15

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Dianne Knight, Appellant

-and-

Alexander Radinovsky, Respondent

BEFORE: F.L. Myers J.

READ at Toronto: January 15, 2020

ENDORSEMENT

[1] This appeal has been referred to me by the registrar under Rule 2.1.01(7) of the Rules of Civil Procedure, RRO 1990, Reg. 194, at the request of counsel for the respondent under Rule 2.1.01(6) dated January 13, 2020.

[2] The appellant appeals from the decision of the Landlord and Tenant Board dated November 19, 2019 terminating her tenancy and ordering her eviction.

[3] The appellant’s notice of appeal dated December 9, 2019 states:

THE APPELLANT ASKS that the judgment be varied as follows, extending my tenancy for a few more weeks, allowing me to live here until month ending, December 31, 2019, when I will have before year ending relocated my household to housing that is safe for me to live in with my two physical environmentally caused functional impairment disabilities and will soon have the financial ability to pay for it.

[4] Ms. Knight has complaints about the hearing before the Landlord and Tenant Board but notes principally in her notice of appeal that the landlord has created mould in the leased premises that is toxic to her. She needs to leave and has used the automatic stay of the board’s order under Rule 63.01(3) of the court’s Rules to obtain the extra time to move that she was apparently denied at the board.

[5] The use of an appeal solely to delay eviction due to the automatic stay is an abuse of the Rules and an abuse of the court’s processes.

[6] The appellant may have rights against the landlord available to her in other proceedings, but it is apparent on the face of the notice of appeal that she is not seeking to remain in the premises and, in fact, it would be poisonous for her to do so. Whatever risk of hardship the appellant feared under the board’s order has been avoided by the passage of time. Ms. Knight has already (wrongfully) obtained all of the relief that she sought in this appeal proceeding. There is therefore no point to continuing the appeal on the merits.

[7] This is one of the rare cases where the I am prepared to grant relief under Rule 2.1.01(1) without calling for written submissions from the appellant. The abuse of process is so plain on the face of the pleading that there is nothing that the appellant can say now to render the appeal proper. Moreover, each day that the appeal continues while awaiting submissions from the appellant would wrongfully inflict further losses on the landlord without any countervailing reason as the appellant seeks no further relief in the appeal. I therefore order that submissions from the appellant be waived under Rule 2.1.01(3) and dismiss the appeal as an abuse of the court’s process under Rule 2.1.01(1).

[8] If the respondent wishes to seek costs, he may serve and file no more than two pages of written submissions with the registrar of the Divisional Court by January 24, 2020. The appellant may respond with no more than two pages of costs submissions to be served on the landlord and filed with the registrar’s office by no later than January 31, 2020.

[9] This appeal is dismissed and the automatic stay of the board’s order is terminated. I dispense with any requirement for the respondent to obtain the appellant’s approval of the form and content of the formal order to implement this decision.

F.L. Myers J.

Date: January 15, 2020