CITATION: Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469

DIVISIONAL COURT FILE NO.: 257/19

DATE: 20200123

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M.G.J. Quigley, Conway and Favreau JJ.

B E T W E E N :

SUNRISE NORTH SENIOR LIVING LTD. (C.O.B. SUNRISE OF RICHMOND HILL)

Applicant

– and –

THE SHERIFF OF THE REGIONAL MUNICIPALITY OF YORK, ENFORCEMENT OFFICE OF THE SUPERIOR COURT OF JUSTICE (NEWMARKET) AND ROHAN SALMON

Respondents

Robyn Grant for the Applicant

Robert B. Lawson and Chantelle Blom for the Respondent The Sheriff of the Regional Municipality of York

Melissa Miller for the Respondent Rohan Salmon

HEARD: July 2, 2019 and January 14, 2020

BY THE COURT:

Introduction

[1] The applicant, Sunrise North Senior Living Ltd ("Sunrise"), seeks an order in the nature of mandamus compelling the Sheriff of the Regional Municipality of York (the "Sheriff") to comply with an order requiring the eviction of the respondent Rohan Salmon from a unit in a retirement home operated by Sunrise.

[2] In November 2017, the Landlord and Tenant Board (the "Board") made an eviction order that was to take effect on May 31, 2018. To date, Mr. Salmon has not moved out and the Sheriff has refused to enforce the eviction order because of health and safety concerns.

[3] For the reasons below, we grant an order in the nature of mandamus requiring the Sheriff to deliver vacant possession to Sunrise of the unit occupied by Mr. Salmon. However, given the unique circumstances of this case, the Sheriff is given until March 31, 2020 to comply with the order.

Background facts and procedural history

The parties

[4] Sunrise operates a retirement home located in Richmond Hill. Retirement homes in Ontario are governed by the Retirement Homes Act, 2010, S.O. 2010, c. 11.

[5] Mr. Salmon is 50 years old. Mr. Salmon has been living at the Sunrise retirement home for over 15 years. He was seriously injured in a car accident over 16 years ago. There is some dispute in the evidence over whether he is paraplegic or quadriplegic, but there is no dispute that the accident has left him with significant physical impairments. Mr. Salmon is also morbidly obese. He requires extensive care and assistance in his daily life, including a lift for his transfers, personal support workers for his personal care and hygiene needs, and assistance with all household tasks. There is no issue about Mr. Salmon’s capacity to make decisions about his own care; he is capable and has no difficulties communicating verbally and in writing.

[6] As detailed below, the Sheriff is responsible for enforcing eviction orders made under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. As explained in the Sheriff’s evidence on this application, in Ontario the Sheriff is no longer a specific person. Instead, duties assigned to the “Sheriff” in various statutes are performed by authorized Enforcement Officers within Court Enforcement Offices of the Ministry of the Attorney General.

Proceedings before the Landlord and Tenant Board

[7] In July 2017, Sunrise applied to the Board to terminate Mr. Salmon's tenancy due to the non-payment of rent. According to Sunrise, up to that point Mr. Salmon had a long history of not paying his rent and Sunrise made the application to the Board as a "last resort" after years of attempting to negotiate a resolution.

[8] Mr. Salmon was represented by counsel throughout the Board proceedings and these proceedings.

[9] Before the matter went to a hearing before the Board, Mr. Salmon and Sunrise reached a settlement. On November 3, 2017, the Board issued a consent order reflecting the terms of the settlement, which were as follows:

a. The tenancy between Sunrise and Mr. Salmon was terminated;

b. Mr. Salmon was to move out of his unit by May 31, 2018;

c. Sunrise would not seek payment of Mr. Salmon's unpaid arrears, which at that point exceeded $18,000;

d. Mr. Salmon was to pay a daily rate of $202.96 for the remainder of the tenancy on the 15th of every month. If Mr. Salmon failed to make these payments, Sunrise could move without notice to the Board for an earlier eviction;

e. The Sheriff was to give vacant possession of the unit to Sunrise on or after June 1, 2018;

f. If the unit was not vacated on or before May 31, 2018, starting on June 1, 2018, Sunrise could file the Board's order with the Sheriff for enforcement; and

g. Sunrise was to undertake good faith efforts to assist Mr. Salmon in identifying adequate alternative housing.

[10] It appears that Mr. Salmon did not initially pay the daily rate agreed to under the Board's consent order. In December 2017, Sunrise applied to the Board for relief. On March 7, 2018, the Board issued an order in which it found that Mr. Salmon did not meet his payment obligations and required him to move out on April 23, 2018.

[11] Mr. Salmon and Sunrise then reached an agreement to reinstate the consent order that required Mr. Salmon to move out of his unit by May 31, 2018. The Board issued an order on April 23, 2018, that reflects this agreement.

[12] Mr. Salmon never appealed the Board's eviction order.

[13] Mr. Salmon did not move out of his unit at Sunrise on May 31, 2018, as required under the eviction order.

Sunrise's efforts to enforce the eviction order and the Sheriff’s response

[14] Given that Mr. Salmon did not move out of the unit, on June 11, 2018, Sunrise filed the Board's eviction order with the Newmarket Court Enforcement Office for enforcement by the Sheriff. As part of the process, Sunrise was required to provide information about any special circumstances relevant to the eviction. Sunrise advised the Court Enforcement Office about Mr. Salmon’s health circumstances, including that he is a paraplegic with severe obesity, that he requires a mechanical lift to be transferred from his bed, and that he requires the ongoing care of service providers.

[15] Following Sunrise's filing of the eviction order with the Court Enforcement Office, Enforcement Officers took a number of steps to assess how they would conduct the eviction. They attended Mr. Salmon’s unit to serve him with the eviction order. At that time, Mr. Salmon advised that he would not willingly leave his unit and that he had no place to go. Enforcement Officers also met with the York Regional Police who advised that their role “would be limited to keeping the peace, and that they would not forcibly remove or apprehend Mr. Salmon … if he refused to leave”. Based on these consultations with the police and its own internal assessment, the Court Enforcement Office concluded that “there was no safe place for Mr. Salmon to be moved in light of his underlying physical challenges and associated daily care needs”.

[16] In the circumstances, the Court Enforcement Office requested that Sunrise apply to the Superior Court of Justice to obtain directions on how to carry out the eviction pursuant to Rule 60.17 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Justice Bale's decisions

[17] Sunrise brought an application for directions to the Superior Court in Newmarket on September 21, 2018. The application was before Bale J. The Sheriff and Mr. Salmon were respondents on the application.

[18] On September 21, 2018, the application judge made an order based on the consent of the parties that included the following terms:

a. The Sheriff "is authorized to take such steps as are reasonably required to evict" Mr. Salmon "and provide vacant possession" of the unit to Sunrise on November 30, 2018.

b. The parties could re-apply to the application judge if they required further directions on four days notice.

c. The March of Dimes, Centre for Independent Living and A Place for Mom were to provide information to Mr. Salmon's lawyer about when Mr. Salmon placed his name on their waiting lists and when he could reasonably expect to be accommodated. This information was then to be provided to Sunrise and the Sheriff.

d. The Local Health Integration Network (the "LHIN") was to provide Mr. Salmon with "information relating to the options available for patients with the needs of Mr. Salmon", and that information was to be shared with Sunrise and the Sheriff.

[19] In his brief endorsement, the application judge also stated that "it is the expectation of the court that Mr. Salmon, through counsel, will pursue alternate accommodations, over and above that available through the organizations" listed in the order.

[20] Despite this order, Mr. Salmon did not identify a place where he was to be moved to and the Sheriff did not enforce the eviction order by November 30, 2018.

[21] On January 8, 2019, Bale J. issued a further endorsement in this matter based on the written submissions of the parties. In his decision, he found that he did not have jurisdiction to make the order sought by Sunrise because Rule 60.17 of the Rules of Civil Procedure does not contemplate a freestanding application for directions but, rather, a “motion” for directions in the proceeding in which the order was originally made. He also held that a motion for directions was not the appropriate procedure for Sunrise to seek the enforcement of the eviction order.

[22] Despite finding that he did not have jurisdiction over this matter, the motion judge made findings in relation to the efforts made by Mr. Salmon to comply with the September 21, 2018 order to find alternative housing:

[11] In response to my request for further submissions, Ms. Miller, on behalf of Mr. Salmon, advised that she had been informed by each facility to which he has applied that they are unable to provide information with respect to his place on their list. They have no way of knowing when a place will become available, and when one does, they have to interview the next person on the list to determine whether the placement is appropriate. Ms. Miller also advised that she had spoken with the Central LHIN manager and had been told that they could not provide any information as to what facilities may be available and appropriate for Mr. Salmon, because he has not applied for long-term care. The reason that he has not applied is that he believes long-term care facilities to be inappropriate for him, given his relative youth, and mental acuity. She reports that Mr. Salmon is frustrated and depressed at his inability to find an appropriate placement.

[23] The motion judge went on to describe the Sheriff's responsibilities:

[20] The law applying in this case is clear. Sunrise is entitled to possession of the rental unit, and has been so entitled since June 1, 2018. Pursuant to s. 141(1) of the Courts of Justice Act and s. 85 of the Residential Tenancies Act, 2006, the sheriff is required to enforce the eviction order, in the same manner as a writ of possession, and has been required to do so since the order was filed with her on June 11, 2018.

[21] With absolutely no disrespect to Mr. Salmon, and while I have sympathy for the position in which he finds himself, having no right to remain at Sunrise and nowhere to go (he says), he is, in effect, a homeless paraplegic. I am confident that in Ontario in 2018 (and now 2019) there is some place, or places, to which the sheriff may safely take such a person, upon carrying out an eviction order. It is, in my view, the public duty of the sheriff to determine what that place or places are, and to carry out the eviction.

[24] Finally, the motion judge held that an application to enforce the eviction order should be brought to the Divisional Court by way of an application for judicial review:

[22] Sunrise has not asked the court to order the sheriff to fulfill her public duty by enforcing the eviction order, and in any event, my view is that such an order is not available on a motion for directions under rule 60.17. If the sheriff continues to delay in enforcing the order, Sunrise's remedy would be an application to the Divisional Court for judicial review, pursuant to s. 2 of the Judicial Review Procedure Act. However, it is my expectation that the sheriff will now proceed to enforce the eviction order, without requiring the applicant to engage in further, and unnecessary, litigation.

Justice Charney's decision

[25] Following Bale J.'s January 8, 2019 decision, the Court Enforcement Office took additional steps to find a suitable place to which Mr. Salmon could be taken upon his eviction. They contacted a number of organizations and shelters in the York Region and the Greater Toronto Area, and concluded that there was nowhere they could take him because Mr. Salmon’s consent would be needed for admission or because the places they had contacted were not able to accommodate Mr. Salmon’s medical needs.

[26] The Court Enforcement Office also contacted the LHIN, which informed them that it could facilitate Mr. Salmon’s admission to a long-term care home, even on a temporary or urgent basis, but that Mr. Salmon’s consent would be required for admission. In addition, the Enforcement Office identified a number of retirement homes that had vacancies and that could accommodate Mr. Salmon. Again, admission to a retirement home would require Mr. Salmon’s consent.

[27] The Enforcement Office shared the information it obtained about the availability of long-term care homes and retirement homes with Mr. Salmon. In response, his counsel advised that Mr. Salmon would never consent to placement in a long-term care home and that the retirement homes identified were “not appropriate”.

[28] On March 12, 2019, the Enforcement Office ultimately advised Sunrise that they would not carry out the eviction unless Mr. Salmon consented to be moved to alternative accommodations. The Sheriff also raised an issue about the eviction order expiring on the one-year anniversary of its being filed with the Court, which was June 11, 2018.

[29] Sunrise then brought an urgent application for judicial review before a single judge in Newmarket. The application was heard by Charney J. on April 26, 2019.

[30] In a decision released on April 29, 2019, Charney J. granted a one-year extension of the eviction order, starting from the date of his decision. The extension was without prejudice to Sunrise's ability at a later date to argue that the order does not expire. Having renewed the eviction order, the application judge went on to find that the matter was no longer urgent, and that it should be heard by a full panel of the Divisional Court. The matter was transferred to Toronto so that it could be heard more expeditiously.

Adjournment of July 2, 2019 hearing

[31] The application for judicial review came before this panel on July 2, 2019.

[32] At the beginning of the hearing, the panel heard initial submissions from Ms. Miller, counsel for Mr. Salmon, and from Sunrise. However, rather than continuing with the full hearing of the application, the panel then encouraged the parties to try to resolve the matter. The parties were then able to reach agreement on a process that was meant to lead Mr. Salmon to identify and move to suitable alternative accommodations, failing which the matter was to come back for a hearing before the panel at a later date. The agreement of the parties was reflected in an order of this Court, which included the following terms:

a. By July 16, 2019, Mr. Salmon was to provide consent to Sunrise and the Sheriff disclosing his personal health information for purposes of inquiring into potential new accommodations on his behalf.

b. By July 16, 2019, Mr. Salmon was to provide Sunrise and the Sheriff with copies of his applications to The March of Dimes, Centre for Independent Living and A Place for Mom.

c. By July 16, 2019, Mr. Salmon was to serve Sunrise and the Sheriff with the medical records relevant to his search for new accommodations.

d. By July 16, 2019, Mr. Salmon was to advise the parties of the parameters he was using to identify potential new accommodations.

e. By July 16, 2019, Mr. Salmon was to provide the list of parameters to his LHIN caseworker. Mr. Salmon was to ask his LHIN caseworker to inquire into all long-term care homes that can reasonably accommodate his parameters. If a long-term care home could not meet his parameters, Mr. Salmon was to ask his LHIN caseworker to advise which long-term care homes, if any, can come closest to accommodating his parameters.

f. By July 30, 2019, the Sheriff and Sunrise were to provide Mr. Salmon with a list of potential new accommodations. Sunrise and the Sheriff were permitted to update the list from time to time.

g. Mr. Salmon was to continue reasonable efforts, independent of Sunrise and the Sheriff, to identify and pursue potential new accommodations.

[33] In addition to the terms above, the order also required Mr. Salmon to report regularly on his communications with potential new accommodations, to provide details about why he found potential new accommodations not suitable and to report on his communications with his LHIN caseworker about potential accommodations in a long-term care home.

[34] Paragraph 10 of the order also provided that:

If Mr. Salmon maintains that long-term care home is not a suitable destination, he is to complete a medical assessment and to serve the report of the medical assessor regarding his eligibility for admission to a long-term care home by no later than 30 days after the assessment.

[35] Finally, Mr. Salmon was to advise the Sheriff where he was to be moved by November 30, 2019. In the event Mr. Salmon failed to do so, the matter was to come back before this panel on a date to be arranged with the Court for early 2020, and a schedule was set for the parties to deliver their materials. Mr. Salmon's materials were due on December 17, 2019.

Events since July 2, 2019

[36] Unfortunately, following the July 2, 2019 order, Mr. Salmon did not identify a place where he was to be moved, and the matter came back before the panel on January 14, 2020.

[37] In advance of the hearing, Sunrise and the Sheriff filed supplementary materials, outlining what has occurred since July 2, 2019. Mr. Salmon did not file additional materials.

[38] Based on the evidence filed by the parties, it appears that Sunrise and the Sheriff met their obligations under the order made July 2, 2019. Mr. Salmon met some, but not all, of his obligations.

[39] Mr. Salmon did provide a list of parameters he is using to search for new accommodations. He is seeking a 500 square feet suite or a space with a layout that can accommodate specified equipment. Counsel for Sunrise points out that the list includes some equipment that Mr. Salmon does not currently have in his unit and that he did not include his budget as part of his parameters.

[40] While Mr. Salmon provided a copy of his application to The March of Dimes, he did not provide copies of his applications to either the Centre for Independent Living or A Place for Mom.

[41] With respect to the option of moving to a long-term care home, it appears that Mr. Salmon maintained his objection to this option throughout most of the time leading to this hearing despite the requirement in the July 2, 2019 order that he explore this option with the LHIN:

a. In a letter dated July 15, 2019, counsel for Sunrise asked counsel for Mr. Salmon to advise of his inquiries with his LHIN caseworker about the long-term care homes that could accommodate his parameters. In response, in correspondence of the same date, Mr. Salmon’s lawyer stated:

I’m not sure how many other ways I can say that there is no discussion of LTC facilities if there is no consent for same. That’s how it works. So no specific options were discussed. That part of the order is now satisfied in my view. Further compliance is not possible as long as my client has not provided his consent to be placed in LTC.

b. In a letter dated July 15, 2019, the LHIN described a meeting it had with Mr. Salmon. In the letter, the LHIN indicated that Mr. Salmon’s caseworker could assist him with the admission process to a long-term care home, but that “Mr. Salmon declined to apply for admission…”

c. On August 21, 2019, the LHIN provided Mr. Salmon with a list of 14 long-term care homes that may be able to accommodate him, and encouraged him to take a virtual tour of the facilities. In the same correspondence, the LHIN indicated that it could not assess Mr. Salmon’s suitability for the homes without his consent.

d. In correspondence dated August 29, 2019, Mr. Salmon’s lawyer again advised Sunrise’s lawyer that Mr. Salmon was not consenting to be placed on a long-term care home list, and that the assessment process could therefore not begin.

e. In October 2019, Sunrise’s counsel and the Sheriff’s counsel contacted this panel, seeking direction on the basis that Mr. Salmon was not meeting his obligations under our order of July 2, 2019. On October 18, 2019, the panel made a written direction that included a requirement that Mr. Salmon was expected to comply with all of the terms of the order in good faith.

f. On November 5, 2019, Mr. Salmon’s lawyer wrote to the panel with the following information:

I can further advise that my client has now made an application with the CLHIN for the sole purpose of inquiring about long-term care options to comply with the Order. His intention remains clear that he does not wish to be placed into long-term care, but he will advise what options exist. This confirms the advice of the CHLIN that an application to long-term care does not equate to admission to long-term care, which still requires his consent.

g. Finally, on November 25, 2019, Mr. Salmon’s lawyer advised counsel for Sunrise and the Sheriff that her client advised her “that he did formally apply for long-term care and is waiting to hear back on suitable accommodation”. She also advised that Mr. Salmon was on his way to the hospital due to an infection and that he would not be able to meet the November 30th deadline.

[42] With respect to the option of moving to another retirement home, both Sunrise and the Sheriff provided Mr. Salmon's lawyer with lists of retirement homes that appeared to meet Mr. Salmon's needs and that had vacancies or upcoming vacancies. Mr. Salmon's lawyer provided some emails her client had sent to a number of retirement homes, including some of the retirement homes identified by Sunrise and the Sheriff. However, it is hard to accept that these emails represent a serious effort to find a suitable place. For example:

a. The criteria identified in the emails are higher than what Mr. Salmon has in his current unit. For instance, his email makes reference to three lifts, when he currently only has one, and to needing space for items he currently does not have, such as a power wheelchair and rehab arm-bike.

b. Mr. Salmon's budget is unclear, arguably making it sound like he has a lower budget than he has. At Sunrise, his rent is $6,000 per month and he pays separately for support workers. However, his emails to retirement homes suggest that he has a ceiling of $6,000 per month for his rent and for his support workers.

c. There is no evidence of follow up. For example, one retirement home said that they may be able to accommodate his needs, but there is no follow up correspondence from Mr. Salmon.

[43] Mr. Salmon also did not comply with the requirement that he undergo a medical examination to determine his suitability for a long-term care home. As reviewed above, the July 2, 2019 order required him to undergo a medical examination if he maintained his position that long-term care was not suitable for him. In its October 2019 correspondence, Sunrise advised that Mr. Salmon had still not undergone a medical assessment. In our subsequent direction, the panel required that Mr. Salmon undergo a medical assessment by no later than November 15, 2019, and as stated above that he “comply with the terms of the Order in good faith”. Despite this direction, it appears that Mr. Salmon did not undergo a medical examination. Instead, at the hearing before us, his counsel argued that he was not required to undergo the medical examination because he had applied for long-term care. Up until the November 5th communication from Mr. Salmon’s counsel, Mr. Salmon had made it clear to Sunrise and the Sheriff that he was only applying for long-term care to comply with the order. However, since it is plain that he had no intention of actually consenting to a placement, it is hard to see that Mr. Salmon’s refusal to undergo a medical assessment to determine his suitability for long-term care was made in good in faith.

[44] Finally, and most significantly, Mr. Salmon did not advise where he was to be moved by the November 30, 2019 deadline. As indicated above, his lawyer did advise Sunrise and the Sheriff that he would not be able to comply with this term of the order due to his hospital admission in late November. However, Mr. Salmon returned to the Sunrise retirement home in early December, and nevertheless did not comply with this aspect of the order after that date nor did he provide an explanation for not doing so.

[45] Besides Mr. Salmon’s failure to comply with the July 2nd order, Sunrise’s evidence is that Mr. Salmon has not paid the full amount of rent owed since that time. Mr. Salmon maintains that three of the cheques he provided to Sunrise were misplaced. Even if this were true, it could be easily remedied with replacement cheques, which he has not provided. In addition, without going into detail or deciding who is in the wrong, it is evident from Sunrise’s evidence that relations between Mr. Salmon and Sunrise’s staff continue to deteriorate. There are significant disagreements over the scope of services Mr. Salmon is to receive while he is still at Sunrise, and Sunrise’s staff have complained that Mr. Salmon is rude and has threatened them.

Adjournment request

[46] At the beginning of the hearing on January 14, 2020, Mr. Salmon's lawyer requested an adjournment. She advised that Mr. Salmon was in the hospital and that she had not been able to get instructions from him over the past seven weeks. She indicated that the latest medical information she had received was from Mr. Salmon's sister on the Friday before the hearing, who indicated that Mr. Salmon was in the hospital due to internal bleeding. Mr. Salmon's lawyer indicated that she was unable to serve responding materials because of Mr. Salmon's unavailability due to medical issues.

[47] Both Sunrise and the Sheriff opposed the adjournment. Sunrise provided an affidavit that indicated that Mr. Salmon was hospitalized between November 25 and December 3, 2019, and again since December 31, 2019. This suggests that Mr. Salmon was at home for most of December and, yet, in that time period, he took no steps to comply with the requirement that he advise where he was to be moved nor with the deadline for providing responding materials by December 14, 2019.

[48] After hearing submissions from the parties, we denied the request for an adjournment. For the sake of completeness, we take the opportunity to explain here the reasons for denying the adjournment.

[49] There is no doubt that Mr. Salmon has serious health issues and challenges. In the normal course, the Court would grant an adjournment request in circumstances where one of the parties is hospitalized and has not had an opportunity to instruct counsel. However, in this case there has already been an almost two year delay since the eviction order was made. In the interim, Mr. Salmon's rent payments have been sporadic, and Sunrise and Mr. Salmon now disagree on many issues related to the services Mr. Salmon is to receive while he remains at Sunrise.

[50] The application is brought against the Sheriff to compel the enforcement of the eviction order. While Mr. Salmon certainly has an interest in the application, the relief Sunrise seeks on the application is not directly against him.

[51] In seeking the adjournment, Mr. Salmon's lawyer argued that Mr. Salmon should have an opportunity to file materials in response to the supplementary materials filed by Sunrise and the Sheriff. The materials filed by Sunrise and the Sheriff address what has occurred since July 2, 2019. This information is only marginally relevant to the issue of whether Sunrise is entitled to an order in the nature of mandamus requiring the Sheriff to enforce Mr. Salmon's eviction. We granted the adjournment on July 2, 2019 because it was evident to us that it would be preferable for this matter to be resolved consensually, without further court intervention. That is why we granted that adjournment to give Mr. Salmon the opportunity to voluntarily find and choose an alternative place to live. However, ultimately, Sunrise's entitlement to the relief it seeks does not depend on what efforts Mr. Salmon has made or not made to find an alternative place to live.

[52] As seen below, while we find that Sunrise is entitled to the order it seeks, we have taken Mr. Salmon's current circumstances into consideration in setting the date by which the eviction order is to be enforced.

Jurisdiction of the Court

[53] Pursuant to section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, this Court has the power to make an order in the nature of mandamus on an application for judicial review.

Analysis

[54] The issue raised on this application is whether the Court should make an order in the nature of mandamus requiring the Sheriff to enforce the Board's eviction order.

[55] The remedy of mandamus "compels an individual to perform a statutory duty imposed on him or her": Zaki v. Ontario (Director, Disability Support Program, 2017 ONSC 1324 (Div. Ct.), at para. 45.

[56] The parties agree that the test for mandamus is the eight-part test articulated by the Federal Court of Appeal in Apotex v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 FC 742 (C.A.), at para. 55. This test has been consistently adopted and applied by all levels of court in Canada, including in Ontario: National Farmers Union - Ontario v. Ontario, 2013 ONSC 6452, at para. 79. The eight parts of the test are as follows:

a. The party against whom the order is made must have a public legal duty to act;

b. The duty must be owed to the applicant;

c. The applicant must have a clear right to the performance of that duty;

d. Where the duty sought to be enforced is discretionary, certain rules apply;

e. There is no other adequate alternative remedy available to the applicant;

f. The order sought will be of some practical value or effect;

g. There is no equitable bar to the relief sought; and

h. The balance of convenience favours granting an order in the nature of mandamus.

[57] Sunrise argues that it has met the requirements for mandamus, and that the Court should exercise its discretion and make an order requiring the Sheriff to enforce the eviction order.

[58] The Sheriff agrees that the first four parts of the test are met, but argues that Sunrise has not met the last four parts of the test. Mr. Salmon's lawyer supports the argument made by the Sheriff, and emphasizes that the balance of convenience favours her client.

[59] We are satisfied that the eight-part test is met and that an order in the nature of mandamus should be made requiring the Sheriff to carry out the eviction.

[60] Despite the respondents' concession that the first four parts of the test are met, our analysis addresses each part of the test with emphasis on the last four parts.

The Sheriff has a legal duty to act

[61] The statutory regime that governs evictions and the powers of the Sheriff make clear that the Sheriff has a duty to enforce eviction orders made by the Board.

[62] Section 85 of the Residential Tenancies Act, 2006 provides that an "order evicting a person shall have the same effect, and shall be enforced in the same manner as a writ of possession".

[63] Section 141(1) of the Courts of Justice Ac, R.S.O., c. C.43, states that "orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement".

[64] As held by Bale J. in his decision of January 8, 2019, in combination these two provisions make clear that the sheriff "is required to enforce the eviction order, in the same manner as a writ of possession…"

The duty is owed to the applicant

[65] The eviction order was issued in favour of Sunrise. Sunrise filed the eviction order with the Sheriff's office. The purpose of enforcement is to provide Sunrise with vacant possession of the unit.

The applicant has a clear right to performance of the duty

[66] Pursuant to Apotex, this part of the test requires Sunrise to demonstrate that:

a. It has met all of the conditions precedent giving rise to the duty; and

b. There was (i) a prior demand for performance of the duty, (ii) a reasonable time to comply with the demand unless refused outright, and (iii) a subsequent refusal which can be either express or implied.

[67] In this case, the only condition precedent to the Sheriff's duty to enforce the eviction order was that Sunrise file the order with the Sheriff's office, which it did.

[68] Sunrise has made repeated requests that the Sheriff enforce the order; the initial request was made in June of 2018, which is over 18 months ago; and the Sheriff's office has taken the position that it will not effect the eviction unless Mr. Salmon consents to be moved to a specific retirement home, long-term care home or other location.

[69] Therefore, we are satisfied that Sunrise has established that it has a clear right to the performance of the duty.

The duty is not discretionary

[70] The Sheriff does not have the discretion to decide not to enforce the eviction orders.

[71] In Central Guaranty Trust Co. v. McRae (1993), 1993 8542 (ON SC), 13 O.R. (3d) 295 (Sup. Ct.), at para. 12, the Superior Court held that the Sheriff has a duty to enforce validly made writs of possession and no discretion not to do so:

A writ of possession is an order of the court. It is granted only after a Judge or master has made a judicial determination which includes consideration of the rights of the occupants. A Sheriff is an officer of the court, sworn to uphold the law. Refusal by a law enforcement officer to enforce an order of the court can only serve to undermine respect for the judicial system and bring the administration of justice into disrepute. A Sheriff, therefore, has no discretion to refuse to execute a writ of possession.

[72] The same principle clearly applies to the Sheriff's obligation to enforce an eviction order made by the Board, given that section 85 of the Residential Tenancies Act provides that an eviction order is to be enforced in the same manner as a writ of possession.

There are no adequate alternative remedies

[73] The Sheriff argues that Sunrise must exhaust other remedies before seeking mandamus, and that, in this case, Sunrise ought first to seek a contempt order against Mr. Salmon.

[74] We reject this argument.

[75] The record before us does not suggest that a contempt order would serve a practical purpose. Despite the eviction order to which Mr. Salmon consented which was made almost two years ago, he has taken few steps to find alternative accommodations and he has not voluntarily made arrangements to move out of the unit.

[76] The Sheriff suggests that a contempt order could be enforced through escalating fines. Again, this is unsatisfactory because it would lead to further delay in implementing the eviction order. Significantly, economic sanctions would have the effect of depriving Sunrise of potential rent while Mr. Salmon remains in the unit and of depriving Mr. Salmon of funds he will likely need to relocate to other accommodations.

[77] More importantly, the legislature has created a clear enforcement mechanism to deal with eviction orders by allowing landlords to seek enforcement by the Sheriff. Requiring landlords to first bring contempt proceedings defeats the legislative scheme and would have the effect of dragging out what should be a fairly efficient process once the eviction order is made and appeal rights are exhausted.

The order sought will have some practical value or effect

[78] The Sheriff argues that an order compelling the Enforcement Office to carry out the eviction order will have no practical value for two reasons. First, the order would be redundant because section 141(1) of the Courts of Justice Act already compels the Sheriff to enforce eviction orders. Second, the police have already advised that they will not assist in evicting Mr. Salmon unless there is a place to which he can be safely taken.

[79] On the first issue, while the Enforcement Office acknowledges the Sheriff’s statutory obligation, Enforcement Officers have not yet fulfilled that obligation. Mandamus is available to require compliance with a statutory obligation. A court order will therefore not be redundant, but will require the Sheriff to comply with its obligations despite its perceived impediments to doing so.

[80] On the second issue, while there is evidence that the police would not assist the sheriff with the eviction last year, there is no evidence that the police will not assist in the face of a court order requiring the Sheriff to fulfill this statutory duty. In fact, we note that in the affidavit filed on behalf of the Sheriff in response to this application, the affiant states that the York Regional Police “could not provide assurance that they would remove the tenant if he refused to leave without a court order directing them”.

[81] Section 21(1) of the Execution Act, R.S.O. 1990, c. E.24, provides that, when acting under a writ of possession, the Sheriff "may use reasonable force to enter and take possession of the land and premises referred to in the writ". Section 141(2) of the Courts of Justice Act gives the Sheriff the authority to "require a police officer to accompany the sheriff in the execution of the order".

[82] The Sheriff relies on the decision in Canada Post Corporation v. Doe et al., 2018 ONSC 7283, at para. 15-20, where Hainey J. of this Court found that the court does not have the power to direct the police to enforce an order arising out of a civil proceeding. That case arose out of a labour dispute between Canada Post and one of its unions. Canada Post was seeking an order from the Court compelling the police to enforce injunctions that had been granted against protesters.

[83] The circumstances in this case and the order sought by Sunrise are different. Sunrise does not seek an order against the police, but against the Sheriff who has a clear statutory duty to enforce the eviction order. If mandamus is granted, the Sheriff will be responsible for figuring out how to implement the order and what assistance, if any, will be required from the police. At this point, it would be premature for this Court to assume that Mr. Salmon will not be more cooperative in the face of an order from this Court or that the police will not assist in enforcing the Court’s order.

[84] In Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 SCR 3, at para. 109, the Supreme Court of Canada held as follows:

Prerogative relief should only be refused on the ground of futility in those few instances where the issuance of a prerogative writ would be effectively nugatory. For example, a case where the order could not possibly be implemented, such as an order of prohibition to a tribunal if nothing is left for it to do that can be prohibited… [emphasis added]

[85] This is not such a case. The evidence before us does not establish that an order from this Court would have no utility or effect.

There is no equitable bar to mandamus

[86] The Sheriff and Mr. Salmon argue that, as between Sunrise and Mr. Salmon, the equities favour Mr. Salmon. In our view, weighing the interests of the parties is relevant to the balance of convenience, but not to whether there is an equitable bar to the relief sought.

[87] In considering whether there is an equitable bar to the relief sought, the Court is concerned with whether the applicant, in this case Sunrise, comes to the Court with clean hands: Zaki, at para. 92; Khalil v. Canada (Secretary of State), 1999 9360 (FCA), [1999] 4 F.C. 661 (C.A.), at para. 15.

[88] Based on the record before us, there is no doubt that Sunrise has acted fairly and appropriately throughout these proceedings. Initially, in the proceedings before the Board, Sunrise consented to an order that provided Mr. Salmon with a generous period of time for finding alternative accommodations, while foregoing significant arrears in rent. More than two years have elapsed since that order was made. In the interim, while Sunrise has pursued its right to enforcement of the eviction order, the record before this Court makes clear that Sunrise has worked cooperatively with Mr. Salmon and the Sheriff in trying to find alternative accommodations for Mr. Salmon.

[89] Under the circumstances, we see no equitable bar to granting the relief sought.

The balance of convenience favours granting the order

[90] The Sheriff and Mr. Salmon argue that the balance of convenience favours not granting mandamus because Sunrise’s interests are only economic, whereas Mr. Salmon’s interests, and by association the Sheriff’s interests, are matters of health and safety.

[91] In Apotex, at para. 118, the Federal Court of Appeal stated that “denying mandamus appears to arise in instances where potential health and safety risks to the public are perceived to outweigh an individual’s right to pursue personal or economic interests”. At the same time, at paras. 124-125, the Court also recognized that, in weighing the balance of convenience, the Court’s discretion to refuse mandamus should only be exercised in the “clearest of circumstances”, given the public interest in upholding the rule of law.

[92] Therefore, in balancing the relevant interests in this case, the Court is not only to consider the relative interests of Sunrise and Mr. Salmon, but also the public interest in ensuring that eviction orders are complied with and enforced.

[93] With respect to Sunrise’s interest, by this point, its interests are not just economic. It is evident that the relationship between the parties has deteriorated to such a point that it is difficult for Sunrise and its employees to deal with Mr. Salmon while he remains in the unit.

[94] With respect to Mr. Salmon’s interests, neither the Sheriff nor Mr. Salmon have established that complying with the order will inevitably endanger Mr. Salmon’s health and safety and that there are no alternatives other than leaving Mr. Salmon in his unit at the retirement home.

[95] First, based on the evidence available since July 2, 2019 and reviewed above, it is evident that there are retirement homes within the general geographic area identified by Mr. Salmon that have vacancies and that can accommodate his needs. It is also evident that there may be long-term care homes that can accommodate Mr. Salmon on an urgent, short-term or long-term basis, but that Mr. Salmon has made only limited efforts to explore this option. This is not a case in which there is nowhere, other than Sunrise, that can accommodate Mr. Salmon. The only impediment to these options appears to be Mr. Salmon’s consent.

[96] Second, while it is clear from the record that Mr. Salmon has serious disabilities and health needs, the evidence on the application does not establish that he cannot be moved safely nor does it establish that there is nowhere where he can be accommodated on a temporary basis. Mr. Salmon has been moved to and from the hospital from time to time. Therefore, he clearly can be moved. In addition, while the Sheriff’s affiant states that the Enforcement Office has explored temporary options, very little evidence is provided on this point. This cannot be the first time the Enforcement Office has faced a case in which an individual with significant health issues has refused to move in the face of an eviction order. Therefore, based on the record before us, we are not prepared to find that Mr. Salmon cannot be moved safely to another location, even without his consent.

[97] With respect to the public interest, there is no doubt that this is a difficult situation. There is a long-outstanding order requiring Mr. Salmon to vacate his unit at the Sunrise residence. While Mr. Salmon has significant health issues and limitations, the evidence before us plainly demonstrates that there are alternatives available to Mr. Salmon that are within his budget. The evidence before us also suggests that he has acted unreasonably by failing to cooperate in the search for an alternative home. There is no doubt that this places the Sheriff in a difficult situation. However, this does not give the Sheriff an excuse to abdicate a clear statutory duty. There is a clear public interest in ensuring that valid eviction orders are enforced.

[98] Weighing Mr. Salmon’s interests, Sunrise’s interests and the public interest, it is evident that the eviction order should be enforced. Otherwise, the Court would be sanctioning Mr. Salmon’s deliberate non-compliance with a valid eviction order that has been in place for over two years.

Additional issues raised by Mr. Salmon

[99] While not pressed at the hearing, Mr. Salmon raised two issues in his factum that we address briefly here.

[100] First, he seems to argue that the original eviction orders made by the Board were unfair or improper. However, these orders were never appealed. They are valid orders, and the only issue appropriately raised on this application is their enforcement. Any attack on their validity is an impermissible collateral attack: Ontario (Human Rights Commission) v. Ontario, [2000] O.J. No. 2419 (Sup. Ct.), at para. 13.

[101] Second, Mr. Salmon also argues that, in enforcing the eviction order, the Sheriff must comply with the Human Rights Code, R.S.O. 1990, c. H.19. Again, this issue was not pressed by Mr. Salmon’s counsel at the hearing. However, we note that compliance with the Human Rights Code cannot mean that Sunrise is not entitled to the enforcement of a validly made eviction order. As the evidence above demonstrates, both Sunrise and the Sheriff have worked together for almost two years to assist Mr. Salmon in finding alternative accommodations.

Appropriate remedy

[102] For the reasons above, we have concluded that Sunrise is entitled to an order in the nature of mandamus requiring the Sheriff to carry out the eviction order. The only remaining issue is whether we can and, if so, should include directions as to how the Sheriff is to carry out the order.

[103] During the hearing, counsel for Sunrise and the Sheriff conceded that the Court likely has no authority to compel Mr. Salmon to be placed in a specific long-term care home or retirement home. Indeed, section 7 of the Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, requires a resident to consent to an assessment for admission or to be cared for in a long-term care home, and section 46(1) provides that consent for admission “must be given voluntarily”. In addition, section 53(1) of the Retirement Homes Act, 2010 requires residents and retirement homes to enter into an agreement before a resident can start living at the retirement home. We were provided with no authority that would allow this Court to bypass this requirement. Indeed, Mr. Salmon is capable and, as such, if his consent is needed, he cannot be compelled by this Court to consent. In any event, the Court cannot compel a third party retirement home or long-term care home to accept Mr. Salmon. Furthermore, the Court is not in a position to assess which specific retirement home, or long-term care home, may be suitable for Mr. Salmon.

[104] In any event, we note that in North Vancouver (District) v. Canada, [1978] F.C.J. No. 619 (T.D.), at para. 38, the Federal Court issued a mandamus order, finding that the harbour authority in that case had a statutory duty to address unlawfully moored houseboats, but that it was not up to the Court to dictate how that duty was to be fulfilled. In our view, the same point is equally applicable here.

[105] While Sunrise and the Sheriff have worked hard and cooperatively to find an alternative home for Mr. Salmon, the Sheriff's responsibility is ultimately not to find a permanent home for him but to carry out the eviction order. This may mean that Mr. Salmon has to be brought to a temporary location. Where Mr. Salmon is to be taken will be for the Sheriff to determine. As mentioned above, this cannot be the first time the Sheriff has been faced with an eviction involving a resident with serious health issues who is reluctant to move.

[106] While we are satisfied that an order compelling the Sheriff to perform its statutory duty to evict Mr. Salmon is appropriate in this case and while we find that it would not be appropriate for the Court to give directions on how the order is to be carried out, we wish to ensure that the parties are given sufficient time to implement the order.

[107] At the time of the hearing, Mr. Salmon was in the hospital. He should be given time to return from the hospital, and an opportunity, in the face of this decision, to finally find and consent to alternative accommodations. As mentioned above, toward the end of November, his lawyer indicated that her client had finally applied for long-term care. Working with his LHIN caseworker, based on the Sheriff’s evidence about the availability of urgent and short term long-term care, we are confident that Mr. Salmon should be able to find accommodations, even in the short term, and thereby have control over where he is to be taken. Alternatively, given that there are retirement homes with vacancies that can accommodate his needs, he should be able to make arrangements with a retirement home.

[108] At the same time, in the event that Mr. Salmon does not do so, the Sheriff will require some time to identify a temporary location where Mr. Salmon can be taken.

[109] Accordingly, while we grant the mandamus order, we find that it is appropriate that the Sheriff be given until March 31, 2020 to comply with the order. In the meantime, we remind Mr. Salmon that he is required by the eviction order to continue paying rent to Sunrise.

Costs

[110] At the conclusion of the hearing, we requested that the parties confer on the issue of costs to see if they could reach an agreement. Counsel for Sunrise and the Sheriff indicated that they had reached agreement as between their clients. They agreed that the successful party was to receive $35,000 in costs. Counsel for Mr. Salmon indicated that she acts pro bono for Mr. Salmon and that she is not seeking costs and argues that no costs should be awarded against Mr. Salmon.

[111] With respect to costs payable by the Sheriff to Sunrise, we find that $20,000 in costs is appropriate in this case. While the Court would normally accede to the agreement made between the parties, $35,000 is far in excess of the costs that would normally be awarded on an application for judicial review. In accordance with the Court of Appeal’s decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (ed) 291 (C.A.), at para. 26, the prevailing principle in awarding costs is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding”. In this case, we note that the Sheriff is a public official whose representatives were trying to deal with what could be described as an impossible situation. Any additional costs incurred by Sunrise were not attributable to the Sheriff’s conduct, but rather to Mr. Salmon’s circumstances and reluctance to fully engage in efforts to find alternative accommodations. In these unique circumstances, we find that it is appropriate to reduce the amount agreed to by the parties, and to limit the costs payable by the Sheriff to Sunrise to $20,000, all inclusive.

[112] We accept the submission made by Mr. Salmon's counsel, and order that there shall be no costs payable by or to Mr. Salmon.

Conclusion

[113] For the reasons above, this Court makes the following order:

a. An order in the nature of mandamus is granted directing the Sheriff to enforce the Board’s eviction order and to deliver vacant possession of the premises to Sunrise by no later than March 31, 2020; and

b. The Sheriff is to pay costs to Sunrise in the amount of $20,000 within 30 days.

M.G.J. QUIGLEY J.

CONWAY J.

FAVREAU J.

RELEASED: January 23, 2020

CITATION: Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469

DIVISIONAL COURT FILE NO.: 257/19

DATE: 20200123

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M.G.J. Quigley, Conway and Favreau JJ.

B E T W E E N :

SUNRISE NORTH SENIOR LIVING LTD. (C.O.B. SUNRISE OF RICHMOND HILL)

Applicant

– and –

THE SHERIFF OF THE REGIONAL MUNICIPALITY OF YORK, ENFORCEMENT OFFICE OF THE SUPERIOR COURT OF JUSTICE (NEWMARKET) AND ROHAN SALMON

Respondents

REASONS FOR JUDGMENT

By the Court

RELEASED: January 23, 2020