CITATION: Holukoff v. Fenby, 2020 ONSC 4420
DIVISIONAL COURT FILE NO.: Hamilton Court File No. DC-20-116 DATE: 20200720
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Robyn Marie Holukoff and Kurt Holukoff
Appellants (Respondents on the motion)
– and –
Colin Fenby
Respondent (Moving Party)
Not appearing
Tyler Nivins, for the Respondent/Moving Party
HEARD at Toronto: July 6, 2020 by teleconference
Favreau J.
[1] Robyn Marie Holukoff and Kurt Holukoff (the “Tenants”) are tenants in a property owned by Colin Fenby (the “Landlord”).
[2] On September 3, 2019, the Landlord and Tenant Board (the “Board”) made an order evicting the Tenants on the grounds that the Landlord required the unit for his own use.
[3] The Tenants appealed the order of the Board to the Divisional Court, which led to an automatic stay of the eviction order.
[4] On May 20, 2020, Corbett J. made an order quashing the Tenants’ appeal, in part on the basis that they have not paid their rent pending the hearing of the appeal despite an earlier court order requiring them to do so.
[5] The Landlord now brings a motion for an order directing the Sheriff to enforce the eviction. Given the current COVID-19 pandemic and the March 19, 2020 order of Chief Justice Morawetz suspending all evictions, the Landlord requires a court order in order to enforce the eviction.
[6] Based on the record before me on this motion, I am satisfied that this is an exceptional case in which it is appropriate to make an order directing the Sheriff’s office to enforce the eviction.
Background
The parties and the tenancy
[7] The Tenants rent the ground floor unit in a property owned by the Landlord located at 178 Wellington Street North in Kitchener, Ontario.
[8] The Landlord is 63 years old. The Kitchener property is the only property he owns. Until 2018, the Landlord worked in Winnipeg. In May of 2018, the Landlord was diagnosed with the early onset of Meniere’s disease which causes ringing in his ears, dizzy spells and sleeplessness. He also has other health conditions, including pre-diabetes, asthma and severe allergies. After the diagnosis of Meniere’s disease, he left his job in Winnipeg, intending to move into his property in Kitchener.
The Board’s eviction order and the appeal to the Divisional Court
[9] In 2018, the Landlord brought an application to the Board to regain possession of the unit for his own use. His evidence was that he required the ground floor unit due to his medical issues. In a decision released on September 3, 2019, the Board accepted the Landlord’s evidence that he required the unit for his own use, and made an order evicting the Tenants. The order was to be effective on February 29, 2020.
[10] The Tenants appealed the eviction order to this Court, which resulted in a stay of the eviction.
[11] The Tenants did not perfect the appeal within the prescribed timelines. On January 10, 2020, the Tenants brought a motion to extend the time to perfect their appeal. In a decision issued on February 7, 2020, Sweeney J. made an order granting the motion and scheduling the hearing of the appeal to February 7, 2020.
[12] At the hearing on February 7, 2020, the Tenants requested an adjournment for the purpose of obtaining legal advice pursuant to a certificate they had recently obtained from Legal Aid Ontario. The adjournment was granted on terms, including the following:
a. The appeal was to be heard in the Divisional Court in Toronto on March 25, 2020;
b. The March 25, 2020 date was peremptory on the Tenants; and
c. The Tenants were to pay their rent during the period of adjournment.
[13] The March 25, 2020 hearing date did not proceed due to the suspension of normal court operations resulting from the COVID-19 pandemic.
[14] The Tenants paid their March 1st rent, but have not paid any rent since then.
Order quashing the appeal
[15] Following the issuance of the Divisional Court’s April 2, 2020 Notice to the Profession advising that the Divisional Court is scheduling electronic hearings, counsel for the Landlord requested a case conference with the Court.
[16] The case conference proceeded before Corbett J. on May 15, 2020. The Tenants did not participate despite being notified of the case conference.
[17] In an endorsement dated May 20, 2020, Corbett J. quashed the Tenants’ appeal on the following grounds:
[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.
[18] Corbett J. gave the Tenants the opportunity to bring a motion to reinstate their appeal if they abided by the following process:
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 May15th; and
b. Why they did not comply with the panel’s order to pay rent for April and May.
[19] Finally, Corbett J. also held that, if the Tenants did not bring a motion to reinstate their appeal, the Court would entertain a motion by the Landlord to enforce the eviction:
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.
The process leading up to this motion
[20] Following the issuance of the May 20, 2020 order, the Tenants did not bring a motion to reinstate their appeal. The Landlord brought this motion to enforce the eviction.
[21] The motion was originally scheduled to proceed before me via telephone conference at 10:00 am on June 18, 2020. Despite waiting until 10:15 am, the Tenants did not dial into the telephone conference.
[22] At the hearing on June 18, 2020, I noted that, while the materials were served in the manner required by Corbett’s J.’s May 2020 endorsement, they had only been served on the Tenants on June 15, 2020, which does not comply with the requirements in the Rules of Civil Procedure that motion materials be served seven days in advance of a motion. Under the circumstances, I adjourned the hearing to July 6, 2020, and required the Landlord to notify the Tenants by email and regular mail of the new date for the motion.
[23] Despite being given notice of the new date for the hearing, the Tenants did not dial into the hearing on July 6, 2020 nor did they respond in any way to the motion.
The Landlord’s current health and financial circumstances
[24] As part of the evidence on the motion, the Landlord swore an affidavit in which he provided evidence about his current financial circumstances and health situation.
[25] Since returning to Ontario, the Landlord has been living in a small rented apartment in Toronto. Given that the Tenants have not being paying rent, including rent arrears for the periods October 2019 to February 2020 and April 2020 to June 2020, the Landlord must fully finance all expenses for his property in Kitchener and pay rent for an apartment in Toronto. In order to meet these financial obligations, he has had to draw down on his RRSP and take a temporary job.
[26] The Landlord’s health concerns have been exacerbated by the pandemic. Given that the Landlord is over 60 years old, he is already at a higher risk of complications from COVID-19. His asthma and pre-diabetes conditions increase these risks.
[27] In addition, his current living conditions increase his risk of contracting COVID-19. He lives in an apartment building with common areas, making it difficult for him to socially distance from other tenants.
[28] Finally, in his affidavit, the Landlord describes a number of recent incidents involving the Tenants. He has had to attend the Kitchener property on a number of occasions to do some maintenance and repairs. The Landlord describes two incidents when he was confronted by one of the Tenants. In one incident, the Tenant purposefully coughed in the Landlord’s direction and, in another incident, the Tenant leaped out of his unit and started cursing at the Landlord. The Landlord’s evidence is also that the Tenants have damaged the property, including by forced entry into the upstairs unit and by causing damage to the garden.
Analysis
[29] There are two issues on this motion:
a. The Divisional Court’s jurisdiction to hear this motion; and
b. Whether there are exceptional circumstances in this case warranting eviction.
Jurisdiction
[30] By order dated March 19, 2020, Chief Justice Morawetz suspended the enforcement of eviction orders made by the Landlord and Tenant Board unless leave of the Court is obtained:
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.
[31] In Morguard Corporation v. Corredor, 2020 ONSC 2166 (Sup. Ct.), Myers J. held that a motion for leave to enforce an eviction during the operation of the Chief Justice’s March 19, 2020 order is to be brought to the Superior Court. This is because Rule 60.17 of the Rules of Civil Procedure provides that a motion for directions in respect of the enforcement of orders by the Sheriff is to be brought in the Superior Court.
[32] In Chalich v. Alhatam, 2020 ONSC 2569 (Div. Ct.), Kristjanson J. confirmed that it is the Superior Court, and not the Divisional Court, that has jurisdiction to grant leave to enforce an eviction order during the operation of the Chief Justice’s order. However, she noted that all Divisional Court judges are also Superior Court judges, and they therefore have the authority to decide the matter as Superior Court judges. She also noted that there are “logistical difficulties” facing parties bringing litigation during the pandemic, and that it would be “inefficient, increasing cost and delay, to traverse the motion to the Civil motions list to be re-assigned and re-heard”. In that case, the motion judge went on to decide the motion in her capacity as a Superior Court judge.
[33] The same considerations apply here. The Landlord has already incurred significant expense and delay caused by the Tenants and the pandemic since the Landlord and Tenant Board made the eviction order. In the circumstances, I am satisfied that it is fair and more efficient for me to decide the motion in my capacity as a Superior Court judge.
Enforcement of the eviction is warranted
[34] As referred to above, the March 19, 2020 order made by the Chief Justice suspends all evictions but provides that a court can grant leave to allow for enforcement.
[35] Since the issuance of the order, there have been a number of decisions that have considered the circumstances in which it is appropriate to lift the stay on evictions and permit the Sheriff’s office to enforce an eviction order.
[36] In Chalich, the motion judge held that 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”.
[37] In Neumann v. Anderson, 2020 ONSC 3518 (Sup. Ct.), at para. 46, Broad J. summarized the considerations that have emerged from the case law on these motions:
I find that the following principles may be drawn from the foregoing review of the Eviction Moratorium and the relevant case law:
(a) the intent of the Eviction Moratorium is to prevent evictions during the pandemic even though it could be expected to cause significant economic disruption and adverse financial effects. Thus, evidence of significant economic hardship to the landlord and resulting unfairness, viewed conventionally, will not by itself support an order that an eviction proceed;
(b) the interests served by the Eviction Moratorium are societal and directed towards the maintenance of existing shelter arrangements for individuals to assist in preventing the spread of COVID-19 during the pandemic;
(c) the Eviction Moratorium is not restricted to tenants who would otherwise be evicted for non-payment of rent in order to protect those who have lost income due to COVID-19 but applies to all evictions without limitation;
(d) on a motion to permit an eviction to proceed notwithstanding the Eviction Moratorium, the onus is on the landlord, as the moving party, to establish the existence of truly urgent and compelling circumstances which would justify overriding the societal interest that persons continue to shelter in place in order to prevent the spread of COVID-19, in the particular circumstances of the case;
(e) although the categories of urgent and compelling circumstances which may justify an order permitting an eviction to proceed are not closed, ordinarily they will involve illegal acts by the tenant or threats to health caused by the tenant; and
(f) a balancing of the concerns of the tenant and the landlord will be carried out primarily in the context of the societal objectives of the Eviction Moratorium directed towards the prevention of the spread of COVID-19 rather than focussing on economic disruption or economic hardship to the landlord, or conventional understandings of unfairness from a financial perspective.
[38] In this case, I am satisfied that the Landlord has met his burden and an order lifting the stay and permitting the Sheriff’s office to enforce the eviction order is appropriate for the following reasons:
a. The Tenants have shown no interest in pursuing their appeal or in arguing that they should be entitled to remain in the apartment, despite being served with Corbett’s J.’s endorsement and materials on this motion.
b. The Tenants have also shown complete disregard for prior court orders requiring them to pay their rent. While it may have been open to them to respond to the motion with evidence that they are unable to pay rent due to the pandemic, they have instead chosen not to respond at all.
c. The Landlord has established that, if he is not permitted to regain possession of the unit, his health and safety are at risk. Despite his age and health issues, he is currently living in circumstances that place him at greater risk of contracting COVID-19 than he would if he were able to live in his own house.
d. The Landlord has also established that the Tenants continue to cause damage to the property and to make him feel unsafe when he has attempted to make repairs or maintain the property.
[39] I agree with Corbett J. that the Tenants are taking advantage of the situation to remain in their unit without paying rent. They have failed to participate in these proceedings and have put forward no evidence that contradicts The Landlord’s evidence. In contrast, the Landlord has put forward compelling evidence of detriment to his health and damage to his property. Balancing all of the relevant considerations, I find that this is one of those rare cases in which it is appropriate to grant leave to the Landlord to be excepted from the order suspending enforcement of evictions.
Costs
[40] The Landlord seeks costs of the appeal and this motion in the amount of $17,089.70.
[41] I agree that the Landlord is entitled to costs and that these proceedings have been far more complex and lengthier than usual appeals from the Landlord and Tenant Board. However, having reviewed the costs outline submitted by the Landlord, I have some concerns with the hours claimed. The costs outline identifies close to 20 hours of work by lawyers other than Mr. Nivins, and it is not clear what work they contributed to the matter. In addition, amounts are claimed for the work of legal assistants, which is not normally recoverable in a costs award. In my view, an award of $10,000 in costs is fair and reasonable in the circumstances of this case.
Conclusion
[42] For the reasons above, the motion is granted, and I make the following order:
a. The Court Enforcement Office (the Sheriff) is directed to proceed with the eviction of the Tenants from the residential premises described in the Order of the Landlord and Tenant Board dated September 3, 2019, notwithstanding the Order of Chief Justice Morawetz dated March 19, 2020 suspending eviction orders;
b. Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord on or after August 3, 2020;
c. The Tenants are to pay outstanding rent to the Landlord in the amount of $7560; and
d. The Tenants are to pay costs of the appeal and this motion to the Landlord in the amount of $10,000 all inclusive.
[43] The Landlord’s counsel is to send a copy of this decision to the Tenants by courier and regular mail upon receipt of the decision.
[44] This Endorsement is effective when made. No formal order is required. If the Court Enforcement Office requires a formal order to enforce the eviction, one may be sent to my attention for signature.
___________________________ Favreau J.
Released: July 20, 2020
CITATION: Holukoff v. Fenby, 2020 ONSC 4420
DIVISIONAL COURT FILE NO.: Hamilton Court File No. DC-20-116 DATE: 20200720
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Robyn Marie Holukoff and Kurt Holukoff
Appellants (Respondents on the motion)
– and –
Colin Fenby
Respondent (Moving Party)
REASONS FOR JUDGMENT
FAVREAU J.
Released: July 20, 2020