Citation: Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244

DIVISIONAL COURT FILE NO.: 098/20 DATE: 2020-05-26

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ISLOW ALI and ALI ALI Appellants/Moving Parties

– and –

NEW SPADINA GARMENT INDUSTRY CORPORATION Respondent/Responding Party on Motion

COUNSEL: N. Gitanjali Lena for the Appellants Ian K. Latimer for the Respondent

HEARD: May 14, 2020, additional written submissions May 20, 2020

Endorsement

Kristjanson J.

[1] This is an interim motion to return Ms. Islow and her three adult children to an apartment operated by the Respondent New Spadina Garment Industry Corporation, a non-profit housing corporation. By order of the Landlord and Tenant Board (“Board”) following a hearing, in November 2019 the Board terminated the family’s tenancy and ordered eviction. New Spadina leased the apartment to a new tenant on February 25, 2020, for March 1 occupancy. The Sheriff carried out the eviction on February 27, 2020. The next day, the appellants began an appeal of the Board’s order. Two months after the eviction, the appellants asked the court to schedule an urgent motion for interim relief to reinstate the family to possession of the apartment or another rent-geared-to-income three-bedroom apartment.

[2] Tenants have a right to appeal termination and eviction orders of the Board to the Divisional Court, within 30 days, on issues of law. Once an appeal is filed there is an automatic stay of the Board’s order pending appeal. Here, however, the appellants began the appeal after the order of the Board had been fully carried out. There is nothing to stay. Section 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) provides the court with discretion to provide a remedy to prevent prejudice to a party pending appeal. If an order sought under section 134(2) is like a remedy otherwise available under another statute or the Rules of Civil Procedure, the principles applicable to that remedy will also apply under CJA section 134(2).

[3] The relief sought is a mandatory interlocutory injunction directing the landlord to either terminate a third party’s existing tenancy or create a new interim tenancy in a different apartment. This requires a much higher test—a strong prima facie case—when assessing the strength of the moving party’s case for a mandatory interlocutory injunction, compared to the test for an interlocutory stay or a prohibitive interlocutory injunction. Considering the strength of the appellants’ case together with the issues of irreparable harm and balance of convenience I find the appellants have not met the test for a mandatory interlocutory injunction and dismiss the motion.

[4] I am expediting the appeal. The parties are to schedule a case management conference to set a schedule. The appeal can be argued on dates available in June and July.

Factual Findings

Events Prior to the Board Decision

[5] Ms. Islow, her adult son Mr. Ali, and her two adult daughters lived in a building operated by the landlord New Spadina for fifteen years. They occupied a rent-geared-to-income, three-bedroom apartment. Of the 140 apartments in the building, New Spadina provides rent-geared-to-income assistance to forty apartments. In August 2019 the appellants were dealing with two processes –first, the potential termination of their lease for persistent late payment of rent which the Board would hear, and second, a potential rent increase based on failure to declare income which New Spadina’s Rent Review Committee would determine.

[6] New Spadina sought to terminate the appellants’ tenancy. The statutory basis for the action was section 58(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“Residential Tenancies Act”) which provides that a landlord may give notice of termination of tenancy to a tenant for grounds including that the tenant “has persistently failed to pay rent on the date it becomes due and payable.” After giving notice, the landlord may apply under section 69 to the Board for an order terminating the tenancy and evicting the tenant.

[7] On August 20, 2019, New Spadina issued a notice of termination (N8) to terminate the tenancy on the grounds that Ms. Islow and Mr. Ali had persistently paid the rent late. The N8 form is entitled “Notice to End Your Tenancy at the End of Term.” It sets out the reasons for the proposed eviction (“you have persistently paid your rent late”). It attaches as a schedule the history of payments for the last 12 months, states that the landlord can apply to the Board for eviction, and that the Board would schedule a hearing. The landlord served the N8 on Ms. Islow and Mr. Ali on August 20.

[8] New Spadina issued an online application with the Board to terminate the tenancy and gain possession of the apartment. On August 20 the Board mailed the parties a notice of hearing and copy of the application. That includes Form L2, entitled “Application to End a Tenancy and Evict a Tenant.”

[9] New Spadina received the notice of hearing by mail on August 22. Ms. Islow and Mr. Ali received the notice, by mail, since they attended the Board hearing on October 8, 2019. I have no evidence about the date that they received the notice.

[10] The rent increase process began in late August. On August 29, New Spadina gave Mr. Ali and Ms. Islow a notice of rent increase decision, informing them that New Spandina would increase their rent on the grounds of failure to report all household income. Ms. Islow and Mr. Ali disputed the rent increase decision, and the New Spadina Rent Review Committee scheduled an internal review hearing for October 11, 2019. On October 14, 2019, the New Spadina Rent Review Committee confirmed the increased rent decision, although reducing the amount. As a result, beginning October 1, 2019, Ms. Islow and Mr. Ali had to pay New Spadina increased rent.

The Board Decision

[11] On October 8, Ms. Islow and Mr. Ali attended the Board hearing. Mr. Ali’s affidavit evidence states that he and his mother “thought” the Board hearing related to the recent rent increase. There was no reasonable basis for that belief. I find on the evidence that the N8, the Board notice of hearing and the L2 form clearly state that the eviction proceeding relates to persistent late payment of rent. I also have no admissible evidence about Ms. Islow’s knowledge or belief.

[12] The tenants requested an adjournment at two points. First, they requested an adjournment to give them time to obtain proof of their income as they were disputing the amount of rent being charged. The Member found that under s. 203(a) of the Residential Tenancies Act the Board had no jurisdiction to determine eligibility or amount of rent-geared-to-income. Section 203 of the Residential Tenancies Act, which restricts the jurisdiction of the Board, provides:

203 The Board shall not make determinations or review decisions concerning,

(a) eligibility for rent-geared-to-income assistance as defined in section 38 of the Housing Services Act, 2011 or the amount of geared-to-income rent payable under that Act; or

(b) eligibility for, or the amount of, any prescribed form of housing assistance.

[13] Based on this, the Member found the documentation was not relevant to the Board hearing on persistent late payment of rent, and the adjournment request was dismissed.

[14] Later, the tenants requested an adjournment so that they could obtain legal representation. The Member refused the adjournment on that grounds that she was not satisfied that the tenants had taken reasonable steps to find a legal representative in the nearly two months between receiving the N8 notice of termination and the hearing.

[15] By order dated November 28, 2019, the Board terminated the appellants’ tenancy for persistent late payment of rent. In her written decision, the Member found that the parties did not dispute that the tenants paid their rent late every month from August 2018 to August 2019. The Member considered section 83 of the Residential Tenancies Act, which requires that before evicting a tenant, the Board shall review all the circumstances, including whether it would be unfair to evict the tenants, or whether the eviction should be postponed. The Member found that conditional relief from eviction would not be appropriate, since the tenants conveyed they were unable to pay the rent by the first of the month and were not prepared to pay the current amount of their rent. The Member found that the date of payment is a material term of the tenancy agreement, and the Board lacked jurisdiction to alter the rent. Given the significant length of the tenancy, the Member delayed the eviction until January 31, 2010.

Events After Board Decision

[16] Section 210(1) of the Residential Tenancies Act provides that an affected party may appeal an order of the Board to the Divisional Court within 30 days after being given the order, but “only on a question of law.” Once an appeal is filed, there is an automatic stay of the Board’s order pending appeal unless the court orders otherwise: section 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The appellants did not appeal or request a review of the November 28 order until February 28.

[17] On February 2, 2020, New Spadina obtained a writ of possession and filed it with the Sheriff with instructions to the Sheriff’s Office that: “The Enforcement Office will send through ordinary mail a “Notice to Vacate” to the occupants with instructions to vacate the premises on or before 8:30 A.M. MONDAY FEBRUARY 24, 2020.” There is no evidence from the appellants about the Sheriff’s notice to vacate.

[18] The Sheriff of the City of Toronto carried out the eviction on February 27, 2020. The appellants filed their appeal from the November Board order on February 28, 2020.

[19] New Spadina signed a lease agreement for the unit with a new tenant on February 25, conditional on vacant possession. They obtained vacant possession on February 27, and the tenancy agreement became a valid and enforceable contract. The tenant then sub-leased the unit to a sub-tenant now occupying the unit and paying rent.

ISSUES and ANALYSIS

[20] There are two issues on this motion:

(1) Does this court have jurisdiction to reinstate the tenancy after eviction pending the hearing of the appeal, where the apartment has been leased and is occupied by a third party without notice of the motion? If not, does the court have jurisdiction to order the landlord to provide another apartment, if one is available, pending appeal?

(2) If the court does have jurisdiction, have the tenants met the requirements for interim relief pending an appeal?

Issue #1: Jurisdiction to Reinstate the Tenancy

[21] The respondent argues that this Court has no jurisdiction to restore a tenant to possession of a unit after enforcement of lawful eviction order but before service of a notice of appeal and stay, relying on Ecuhome Corp v. Darkwa, 2019 ONSC 3546 (Div. Ct.) at para. 18; Hendricks v. Mylavarapu, 2019 ONSC 4647 (Div. Ct.) at paras. 7 and 8, and 401701 Ontario Ltd. v. Aronow, 1992 CarswellOnt 2754 (Gen. Div.) at paras. 27-29.

[22] The appellant relies on the decision of Justice Favreau in Young v. CRC Self-Help, 2020 ONSC 1874, where she declined to follow those cases, instead holding that there was jurisdiction to grant a stay pending appeal under CJA section 134(2). I agree with Justice Favreau that none of the decisions relied on by the respondent “considered the court’s powers under section 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,” and that in each of those cases, the court found that the test in RJR-MacDonald had not been met.

[23] The jurisdiction under section 134(2) of the CJA is broad. The focus of the remedy is to prevent prejudice to a party in the context of the appeal. Because the eviction was completed and the apartment was leased before the appeal began, the automatic stay pending appeal under section 25(1) of the Statutory Powers Procedure Act is unavailable to the appellants. In Young, although the tenant had been evicted, the apartment had not yet been rented by the time of the interlocutory stay motion. Here, the apartment has been rented to an individual who is not a party to the motion, and who has paid first and last month’s rent under a tenancy agreement.

[24] Guidance on the availability of a remedy under section 134(2) of the CJA where a statutory remedy is unavailable is found in Abuzour v. Heydary, 2015 ONCA 249. In that case, the court issued a garnishment order directing the payment of insurance proceeds. The original order was not appealed. Third parties asserted they had not been provided with notice of the proceedings leading to the original order and sought to set aside or vary the original order for the payment of money. This motion was dismissed, and the third parties appealed. Because the motion to vary the original order was not an order for the payment of money, the automatic stay under Rule 63.02(1) of the Rules of Civil Procedure did not apply. Justice Huscroft found that interim relief under section 134(2) of the CJA was available to stay the payment of money, since CJA s. 134(2) establishes a broad jurisdiction for the court to make interim orders necessary to avoid prejudice to a party pending an appeal. He found that the test for granting interim relief under s. 134(2) is the same as for granting a stay pending appeal under Rule 63.02(1), the interlocutory injunction test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 at 334.

[25] Both the scope of any remedy available under s. 134(2) of the CJA, and the constraints on the availability of that remedy, will depend on the principles applicable to analogous remedies. As the Court of Appeal held in Waxman v. Waxman, 2003 22440 at para. 21:

The jurisdiction under s. 134(2) is broad, but it is not unlimited. The focus of any remedy provided under the section must be on preventing prejudice in the context of the appeal. The prejudice must relate to a party's ability to meaningfully participate in the appeal or to the court's ability to hear and decide the appeal on its merits in a timely fashion. Nor should s. 134(2) be construed as supplanting specific provisions of the CJA or the Rules of Civil Procedure governing orders lifting stays, imposing stays or orders for security for costs. The principles to be applied in determining the availability of those remedies are well established. Where the order sought under s. 134(2) is akin to an order lifting a stay, imposing a stay, or providing security for costs, the principles applicable to those remedies will play a central role in deciding whether any remedy should be granted under s. 134(2)…

[26] The same analysis applies here, where the automatic stay is unavailable. If an order sought under section 134(2) is like an order imposing an injunction, otherwise available under another statute or the Rules of Civil Procedure, the principles applicable to that remedy will also apply under section 134(2).

[27] I find the remedy sought by the appellants is a mandatory interlocutory injunction rather than a stay of proceedings. There is nothing to stay, since the order of the Board has been carried out, the tenancy has been terminated, the tenants have been evicted, and the landlord has entered into a new tenancy agreement for the unit which was the subject of the Board’s order. The Supreme Court of Canada in R. v. Canadian Broadcasting Corp, [2018] 1 S.C.R. 196, 2018 SCC 5 at para. 15 distinguishes between mandatory and prohibitive injunctions:

A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise "put the situation back to what it should be", which is often costly or burdensome for the defendant and which equity has long been reluctant to compel. Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it"the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial". The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR - MacDonald as "extensive review of the merits" at the interlocutory stage.

[28] The Supreme Court held that on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant's case at the first stage of the RJR—MacDonald test is not whether there is a serious issue to be tried, but whether the applicant has shown a strong prima facie case. While there may be reasons to depart from this test in certain cases, I apply the strong prima facie case standard here given the context.

[29] A party seeking interim or interlocutory injunctive relief under CJA s. 134(2) is also required to provide an undertaking as to damages required by Rule 40.03 of the Rules of Civil Procedure. Any party seeking an interlocutory injunction pending appeal must provide an undertaking to pay any damages the other party sustains because of the injunction, if they fail in the ultimate appeal. There is no undertaking to pay damages here, although if successful, that would have been a requirement.

The Original Apartment

[30] The apartment was leased to another tenant before the appellants appealed. The new tenant signed the lease with New Spadina on February 25, 2020, for March 1 occupancy. The eviction took place February 27. The appellants started their review and appeal on February 28th. This motion was not brought until April 23. To restore the apartment to the appellants on an interim basis, the existing lease would have to be terminated and the existing tenant would have to be evicted. The landlord and new tenant entered the lease almost one month after the statutory appeal period expired. The appellants brought their motion without notice to the existing tenant. Without notice, the court will not terminate the tenancy of a third party on an interim basis pending appeal. Applying the balance of convenience test on an interlocutory injunction, the balance of convenience overwhelmingly favours protection of the existing tenant.

Another Unit in the Same Building

[31] The alternative relief sought by the appellants is that the landlord should be ordered to provide another three-bedroom rent-geared-to-income apartment. In oral argument this was amended to ordering the landlord to provide a two-bedroom apartment with a “guarantee” of the first three-bedroom unit to become available pending the appeal.

[32] New Spadina argues that there is no jurisdiction to order that the landlord provide an alternative apartment. The statutory relief is a stay, a prohibitive order designed to preserve the status quo and enforce existing rights, not a mandatory injunction to create new rights.

[33] The request for an alternative three-bedroom apartment pending appeal is mandatory because the appellants are asking the court to order New Spadina to give them another unit pending the appeal even though there is no contractual entitlement to the other unit. The higher test set out in R. v CBC Broadcasting of a strong prima facie case should be required, since giving the appellants possession of another unit pending the appeal is, in effect, creating a new tenancy agreement for a different apartment on an interim basis, pending appeal.

[34] The appellants argue that a tenancy agreement can survive suspensions, and that relocation to a different unit for temporary purposes does not interfere with a pre-existing landlord and tenant relationship, relying on the Divisional Court decision in Morguard Residential v Asboth, 2017 ONSC 387 (Div. Ct.). They argue that an interim order requiring the respondent to provide the appellants with a temporary unit while their access to the original unit is suspended will not create a new tenancy agreement. The appellants acknowledge that the Court would have to clarify that it is not creating a new tenancy agreement, since the existing order terminates a different tenancy and authorizes the appellants’ eviction from the former unit.

[35] There are provisions of the Residential Tenancies Act that contemplate the possibility of continuance of a tenancy in another unit when the tenant is removed from the original unit (for example, for the landlord’s personal occupancy (s. 48.1) repair or renovation (s. 54) or following severance (s.55)). These statutory protections apply when a landlord has knowingly sought to interrupt a tenancy. Here, the landlords obtained an order from the Board, the tenancy was terminated in November, and the appellants did not appeal within the statutory appeal period. The new tenancy was not created in bad faith.

[36] There is no evidence that any two- or three-bedroom units are now available. The landlord has a waiting list for three-bedroom units. The tenants seek interim relief, and the appeal can be heard within the month, depending on how quickly the appellants perfect their appeal. I find in context that the test to be applied for the mandatory injunction is the test in R. v. Canadian Broadcasting Corporation, (1) a strong, prima facie case; (2) irreparable harm, and (3) the balance of convenience favours the injunction.

[37] The three steps in the test are interrelated, and not to be evaluated in silos. This is particularly the case with the analysis of irreparable harm and the balance of convenience.

Issue #2: Applying the Test for a Mandatory Interim Injunction

A Strong Prima Facie Case

[38] On appeal from the Landlord and Tenant Board under section 201(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: Young v. CRC Self-Help, 2020 ONSC 1874, para. 47. In applying the strong prima facie case test, the motions judge must be satisfied that there is a strong likelihood on the law and the evidence presented that the appellant would succeed on the appeal.

(i) New Issue on Appeal

[39] The appellants raise three main issues. They first argue that the Board erred in law in holding that under section 203(a) of the Residential Tenancies Act, it had no jurisdiction to determine the amount of geared-to-income rent payable to the tenant. On this motion, and presumably on appeal, the tenants will seek to argue that the rent-geared-to-income assistance here was payable under a Transfer Agreement rather than under the Housing Services Act 2011, S.O. 2011, c. 6, Sch. 1. The landlord argues that the assistance was, in fact, payable under the Housing Services Act, and thus the Member correctly held that section 203(a) applies to preclude the Board from dealing with the amount of geared-to-income rent.

[40] Based on the evidence and arguments before me, the new issue now raised by the appellants is requires evidence not before the Board, and is legally complex. Determination of the issue requires an analysis of the nature and history of the income assistance programs offered by New Spadina since 2002, an analysis of rent supplement programs administered by the provincial government prior to January 1, 2001 and their successor programs, the agreement between the City of Toronto and New Spadina relating to income assistance, and an analysis of the interrelationship of a number of statutory provisions of the Housing Services Act and regulations under that Act.

[41] These appellants are raising a new argument not raised before the Board. A court may refuse to deal with an issue that could have been raised before the administrative decision-maker but is only raised for the first time on appeal or judicial review. The rationale for declining to hear a new argument includes respect for the legislative decision to confer initial decision-making authority upon the administrative decision-maker, avoiding prejudice to the responding party, and ensuring that there is an adequate evidentiary record to decide the question (Alberta (Information and Privacy Commissioner) v. Alberta Teachers Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22-26). It appears from the evidence and arguments before me that New Spadina would need to adduce fresh evidence on appeal if the appeal court allows the new legal argument to proceed. I do not find a strong prima facie case.

(ii) Out of Time With No Credible Explanation

[42] The respondents argue that there is no strong prima facie case because the appeal is out of time. Although there is a discretion to extend, there is no credible explanation to support an extension of time. In accordance with Section 210 of the Residential Tenancies Act, the appellants had a right to appeal the order within the 30 days after being given the order. Section 191(3) of the Residential Tenancies Act provides that a document given by mail “shall be deemed to have been given on the fifth day after mailing.”

[43] The tenants received the hearing notice by mail since they attended the hearing. The Board mailed its order on November 28. New Spadina received the order by mail on November 29. Mr. Ali simply asserts he did not receive the Board order by mail; there is no evidence from Ms. Islow.

[44] To show that the appeal is not out of time, the appellants had to provide a credible reason to explain why they did not receive the order and the Sheriff's notice to vacate, both sent by mail. They failed to do so.

[45] The case law reflects that the appellants must provide a credible explanation for why mail was not received, not a bald assertion. In Khani v. Zhang, the Divisional Court upheld a decision of the Board because the tenant could not explain why she had not received the notice of hearing. She had received a copy of termination order in her mailbox after the hearing, and Canada Post did not return the notice of hearing: 2019 ONSC 1362 (Div. Ct.), at paras. 7, 10 and 21. On the other hand, in 2389316 Ontario Ltd. v. Toth, 2015 CarswellOnt 20024, at paras. 1-6, the Board granted the tenant's request for review because the tenant provided a credible reason to explain why he had not received the notice of hearing. In that case, the Board accepted the tenant’s evidence that when the notice of hearing was mailed, the landlord was performing renovations to the residential complex's entrance, where the rental unit's mailbox was located, and at times it was impossible to enter the residential complex because of the presence of scaffolding and other construction materials. The tenant in that case also provided in evidence an envelope from the Board that had been returned to the Board because Canada Post had could not deliver it. The envelope contained a copy of the Board's order, which the tenant also did not receive.

[46] The initial notice of hearing was sent by mail and the appellants received it. Mr. Ali’s statement that he did not receive the order by mail is a bald assertion which does not provide an explanation. There is no admissible evidence from Ms. Islow on this point. Nowhere in his affidavit does Mr. Ali state that he did not receive a notice to vacate from the Sheriff, also sent by mail. Under the statute, the order is deemed to have been given on December 5, which begins the statutory 30-day appeal period.

(iii) Section 83 Discretion

[47] The appellants argue that the Member erred in law in failing to consider all the circumstances under section 83 of the Residential Tenancies Act to see whether she should exercise her discretion in favour of the appellants. There is not a strong prima facie case on this ground either. A decision under section 83 is a discretionary decision involving the weighing of relevant factors, to which deference is owed. After looking at all the circumstances, the Member determined that the tenancy agreement should be terminated but the eviction should be postponed until January 31, 2020. The Member made that decision grounded in the facts before her because the appellants had advised the Member that because of the timing of Ms. Islow’s pay cheques, the appellants could not pay the rent on the first day of the month, and their statement that they would not pay the increased rent.

(iv) Procedural Fairness

[48] The appellants raise two procedural fairness arguments based on the failure of the Member to adjourn the October hearing. They argue that since the Board erred in interpreting its jurisdiction to deal with geared-to-income rent, it was a denial of procedural fairness to deny the adjournment requested by the appellants to obtain supporting income documentation on the grounds of lack of relevance. I have already found that the jurisdictional argument does not meet the strong prima facie case test, and the procedural fairness argument hangs or falls on the jurisdictional argument. The appellants also argue that the Member denied procedural fairness to the appellants in refusing the request for an adjournment to retain legal counsel. Decisions on adjournments are highly discretionary, deference is owed, the Member gave appropriate reasons justifying her decisions, and no strong prima facie case of failure of procedural fairness is established.

Irreparable Harm

[49] The appellants and the two daughters were evicted on February 27, 2020. The Notice of Motion for this urgent motion is dated April 23, two months after the eviction. The family members are now living with the mother’s sister. There are five adults in her 400 square foot, two-bedroom apartment. It is cramped and there is no privacy. Mr. Ali states it is impossible for these five adults to maintain the social distance required in the small apartment, and Ms. Islow is a health care worker who is at risk of contracting the COVID-19 virus.

[50] While not ideal, I do not find that living in a smaller apartment is irreparable harm, based on the actions of the appellants. On May 1, a large (768 square foot) two-bedroom unit in the building became available. New Spadina offered that the appellants could move into the unit and be placed on a waiting list for a three-bedroom unit, until the appeal was decided. That offer was refused because there was no “guarantee” of the first available three-bedroom apartment. The refusal of the appellants to accept the offer of a two-bedroom apartment much larger than the aunt’s apartment is evidence that, in their own assessment, the present living situation does not constitute irreparable harm.

[51] The allegation of irreparable harm is also appears to be based on the possibility that the family may soon have to leave the aunt's apartment and if that happens, Mr. Ali baldly alleges that they would have to go to a homeless shelter. Yet the appellants have not provided admissible evidence that this will happen. Paragraph 22 of Ali's affidavit states, “My aunt is taking a big risk by having us stay with her because her lease only permits one additional person and she has told us that we cannot maintain this arrangement for much longer.” This is not admissible evidence because Ali did not state the source of the information or that he believes the information is true. The lease is not in evidence. The aunt provided no evidence. Evictions in Ontario are stayed because of COVID-19, so the aunt could not be forced to leave the apartment, nor the family.

[52] Furthermore, without disclosing evidence of the total household income, in his affidavit Mr. Ali baldly asserts that “After the eviction, we could not find anywhere we could afford to live.” There is no evidence of steps taken to find another apartment, nor of the total family income. Mr. Ali’s bald assertion is inconsistent with the evidence that on February 28, Mr. Ali informed a New Spadina employee that Mr. Ali, his mother and his two sisters were working full time, could pay the market rent and did not need a subsidy, and that they would pay the rent on time if New Spadina let them back into the apartment.

[53] I find on the evidence before me that the appellants can remain in the aunt’s apartment, or can obtain alternative accommodations on an interim basis pending appeal.

[54] In evaluating irreparable harm, I also consider delay to date and how quickly the appeal could be argued. The appeal can be argued within a month. The urgent motion was brought two months after the eviction. The family has been out of the apartment for almost three months already.

Balance of Convenience

[55] Until the appeal can be heard, Mr. Ali and his family will keep living in their aunt’s cramped apartment. There is another tenant who is residing in the original apartment under a valid and enforceable lease. That tenant is not on notice of this injunction, and the Court will not put out an existing tenant in the circumstances.

[56] There is no evidence of an available two-or three-bedroom apartment, and evidence of a waiting list for three-bedroom apartments. The landlords would be forced to create a new tenancy agreement for what may be a one-month period, with potential eviction delays if the appellants are not successful.

[57] Given what I find to be weak arguments on the appeal, what is being sought is an interlocutory mandatory injunction to create a new tenancy in a different unit, lack of irreparable harm, the two-month delay by the appellants in bringing this urgent interim motion, and the speed with which an appeal can be scheduled, I find that the balance of convenience warrants denying the injunction, but ensuring the appeal is argued quickly.

[58] The appeal is to be expedited. There are dates available in June and July. The parties may seek a case management conference to set a schedule for the filing of materials and obtain an appeal date.

Costs

[59] The respondent is entirely successful and seeks partial indemnity costs of $13,896.97. Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceeding; and (5) to encourage settlements: Fehr v. Sun Life Assurance Company of Canada, 2017 ONSC 2218 at para. 34.

[60] Rule 57.01(1) of the Rules of Civil Procedure provides that in exercising its discretion under section 131 of the CJA to award costs, the court may consider several specified factors. In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 728, the Court of Appeal, at para. 26, held that the fixing of costs is not simply a mechanical exercise and that, overall, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. Reasonableness and proportionality are touchstones in the fixing of costs.

[61] The appellants request no order as to costs on the grounds of their low income. The appellants qualify for a housing subsidy. However, the limited financial circumstances of a party do not act as a shield against any liability for costs, although this may be considered when setting the quantum of costs or the schedule for payment of costs.

[62] The appellants are to pay costs to the respondent of $5,000.00 inclusive of fees, disbursements and HST, an amount I find reasonable and proportional in the circumstances.

Procedure

[63] Leave was granted permitting the motion to proceed as an urgent motion during the COVID-19 pandemic. The motion was heard by videoconference using Zoom. At the start of the hearing Mr. Ali swore his amended affidavit. Following the hearing I requested supplementary written submissions, received on May 20.

[64] I thank counsel for their very helpful written and oral submissions in this case.

ORDER

[65] The Order is to go as follows:

(1) The motion is dismissed with costs payable by the appellants to the respondents of $5,000.00, inclusive of fees, disbursements and HST.

(2) The appeal is expedited.

(3) The appellants are to perfect their appeal within 15 days, with 15 days for the respondents to complete their materials, including any motion to adduce fresh evidence, subject to extension by further court order.

(4) After the appellants have perfected the appeal, the parties are to seek a case management conference to obtain an appeal date and set a schedule.

(5) This endorsement is effective when made. No formal order is required.

Kristjanson J.

Released: May 26, 2020

Correction: The decision was corrected after release to the parties to replace “interim” with “interlocutory” in some paragraphs.