CITATION: Holukoff v. Fenby, 2020 ONSC 3116
COURT FILE NO.: DC 20/116
DATE: 20200520
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO
RE: Holukoff v. Fenby
BEFORE: D.L. Corbett J.
COUNSEL: Kurt Holukoff and Robyn Marie Holukoff, self-represented, not appearing Tyler J. Nivins, for Mr Fenby Eli Fellman, for the Landlord Tenant Board
CASE MANAGEMENT ENDORSEMENT
[1] This endorsement reflects a case management conference held in this case on May 15, 2020. For the reasons set out below, the appeal is dismissed, on terms.
[2] This is a landlord and tenant matter. In September 2019, the Landlord and Tenant Board (“LTB”) terminated the tenancy of the appellants effective February 29, 2020. The appellants appealed to this court. That appeal was to be heard by a panel of three judges in Hamilton on February 7, 2020. The appeal was adjourned by the panel on February 7, 2020, at the request of the appellants. As terms of the adjournment, Ellies R.S.J., on behalf of the panel, directed as follows:
(a) The case be transferred to Toronto and heard on March 25, 2020;
(b) The return date be peremptory on the appellants; and
(c) The appellants pay rent during the period of the adjournment on the date that it falls due.
[3] In mid-March, as a result of the COVID-19 crisis, in-person hearings in the Divisional Court were suspended and the court directed that only urgent matters would be heard pending further directions from the court.
[4] By Notice to the Profession dated April 2, 2020, effective April 6, 2020, the Divisional Court advised the public that it would schedule cases – including non-urgent cases – at the request of any party. Directions were given respecting how to arrange to schedule a case, including how to arrange for a case management teleconference for the purposes of scheduling any matter.
[5] By letter dated April 22, 2020, counsel for the landlord requested that this matter be scheduled for hearing. Counsel did not receive a response and so inquired of the court about a response by email on May 11, 2020. On May 12, 2020, the court scheduled this case management conference for May 15th, and confirmed the date and time of the conference, with call-in particulars, all sent to the parties by email. The appellants did not respond to this email.
[6] The appellants did not call into the case management teleconference. The court remained on the teleconference with counsel for the LTB and counsel for Mr Fenby, meanwhile directing court staff to follow up with the appellants by email. The appellants were contacted by email ten minutes after the start of the case management conference. No response was received from them and they did not call into the teleconference.
[7] In his letter requesting that the appeal be scheduled, counsel for Mr Fenby advised the court that the appellants had not complied with the panel’s order respecting payment of rent when it fell due. During the case management conference, counsel advised of the following particulars respecting this non-compliance: he advised that he understood from his client that the appellants had made their monthly rent payment of $840 on March 1, 2020, but that the appellants had not made their rent payments on April 1, 2020 or on May 1, 2020. Mr Fenby advised that his client could provide the court with an affidavit attesting to the truth of this information by May 20, 2020: the landlord shall file such an affidavit forthwith.
Order
[8] I am concerned about three things. First I am concerned that the appellants failed to appear on this case management teleconference. Their failure to do so suggests that they may have abandoned this appeal.
[9] Second, I am concerned that the appellants have not complied with the order adjourning their appeal. The requirement to pay rent was the price of the adjournment they were granted. The order was not limited to the payment of March rent, although doubtless everyone expected the appeal would be heard, as scheduled, on March 25th. This too suggests that they may have abandoned their appeal.
[10] Third, I am concerned (a) that the appellants are taking advantage of the COVID-19 situation to prolong their tenancy, to pay no rent, perhaps thinking that they may not be evicted from their residence because of emergency measures protecting tenants during the ongoing crisis; and (b) that the appellants may have some explanation for all these events that is not apparent on the limited information before the court today. If matters are as they appear, as described in (a), then Mr Fenby is entitled to a prompt remedy. If, however, the tenants have some response, as suggested in (b), then they need to provide it to the court immediately.
[11] Balancing these points:
(a) The appeal is dismissed.
(b) The landlord may move for an order for permission to evict the tenants from the premises. Notice of such a motion must be provided to the appellants by leaving a copy of the motion materials in their mailbox and by sending a copy to them by email. Included in the materials giving notice to the appellants must be a copy of this endorsement. If the landlord does bring such a motion, it shall be returnable by case management teleconference on a date to be obtained from Divisional Court staff, which date should be shown on the notice of motion served on the appellants. Divisional Court staff are asked to provide such a date to counsel for the landlord at his request.
(c) If the appellants have not abandoned their appeal, then they may move to set aside this order, before this court. They should seek to bring this motion as soon as they learn about this endorsement: they should contact the Divisional Court to arrange for their motion without delay. In their motion materials, the appellants should explain both:
a. Why they did not attend the case management teleconference on May 15th; and
b. Why they did not comply with the panel’s order to pay rent for April and May.
(d) The appellants may communicate with the Divisional Court during COVID-19 by following the instructions set out in the Notice to Profession – Divisional Court – For Court Hearings During COVID-19 Pandemic (May 13, 2020), which may be found at the following link on the internet:
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-div-ct/
(e) As specified in the Notice to Profession, the appellants may contact the Divisional Court by email at the following address:
scj-csj.divcourtmail@ontario.ca
[12] If the appeal is reinstated, counsel for the LTB shall be given notice of future steps in the case; counsel for the LTB is not otherwise required to participate in these matters.
[13] This order was made orally during the case management teleconference; this endorsement is deemed effective from the date an unsigned copy of it is sent by email to the parties by Divisional Court staff; a signed copy of the endorsement will be forwarded to the parties in due course given current restrictions on ordinary court operations as a result of the COVID-19 crisis.
D.L. Corbett J.
Date: May 20, 2020