Meglis v. Lackan, 2020 ONSC 5049

CITATION: Meglis v. Lackan, 2020 ONSC 5049

DIVISIONAL COURT FILE NO.: 007/20 DATE: 20200918

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Constantine Maglis AKA Constantine Meglis Appellant/Respondent on the motion

– and –

Krishna Lackan Respondent/Moving Party

COUNSEL: Albert S. Wallrap, for Constantine Meglis Tony Bui, for Krishna Lackan

HEARD at Toronto by video conference: July 23, 2020

BEFORE: Favreau J.

REASONS FOR JUDGMENT

[1] Krishna Lackan, the Landlord, brings a motion to quash this appeal and for an order lifting the stay on evictions to permit the Sheriff’s office to enforce the eviction in this case.

[2] For the reasons below, the motion to quash the appeal is granted. The motion to lift the stay is moot given that the moratorium on evictions came to an end on July 31, 2020.

Background facts

The tenancy

[3] The Landlord owns a rental unit at 1003-40 Homewood Avenue in Toronto.

[4] Constantine Meglis, the Tenant, has been a tenant in the unit since April 1, 2017.

[5] The current monthly rent is $1,200 per month payable on the first day of each month.

Proceedings before the Landlord and Tenant Board

[6] In June 2019, the Landlord initiated proceedings before the Landlord and Tenant Board on the basis that he required the unit for his son’s use.

[7] On June 25, 2019, the Landlord served a notice of termination on the Tenant. On July 6, 2019, the Landlord filed an application with the Board seeking to evict the Tenant.

[8] The Board scheduled a hearing date of August 20, 2019. On that date, the Tenant requested an adjournment on the basis that one of his key witnesses was not available. As a result of this request, the Board made an interim order granting the adjournment. However, the adjournment was peremptory on the Tenant. In addition, the Board set a schedule for the exchange of materials between the parties.

[9] While the Landlord provided his materials to the Tenant by the date set by the Board, the Tenant did not do so nor did he respond to inquiries about his materials from the Landlord’s lawyer.

[10] In early September, the Board issued a notice of hearing, scheduling the hearing for October 30, 2019.

[11] On October 24, 2020, the Tenant wrote to the Landlord’s lawyer requesting an adjournment on the basis that his witness was not available on October 30, 2020. In the course of a further exchange between the Tenant and counsel for the Landlord, the Tenant advised that he was scheduled to perform in an opera in Ottawa on the date of the hearing and that he would not be available for the hearing. Counsel for the Landlord advised that his client would not consent to the adjournment.

[12] On October 30, 2019, the Landlord and his family attended the hearing. The Tenant did not attend. Instead, an agent attended on his behalf, asking that the matter be adjourned to a date after December 2, 2020. The Board member hearing the matter denied the request for an adjournment, but indicated that the Tenant could participate by telephone if the agent could reach him. After a break, despite being paged, the Tenant’s agent did not return and the Board member proceeded with the hearing.

[13] On November 26, 2019, the Board issued an order granting the termination application. In the decision, the Board made the following findings:

a. The Board denied the request for an adjournment because the notice of hearing had been issued sufficiently in advance of the hearing for the Tenant to retain a legal representative to protect his interests and because the hearing date was peremptory. The Board also found that a further adjournment would be prejudicial to the Landlord.

b. The Landlord’s son testified at the hearing that he lives in London and works in Toronto, and that living in the unit would allow him to stop commuting. The Board found that the son’s evidence was “clear, consistent and uncontested”, and that the Landlord had good faith intentions.

c. There were no circumstances under section 83 of the Residential Tenancies Act, 2006 that would make it unfair to grant the application.

[14] Based on these findings, the Board made an order terminating the tenancy as of December 7, 2019 and requiring the Tenant to pay the Landlord compensation in the amount of $3,432.15 for use of the unit between September 1, 2019 and November 26, 2019.

[15] On December 2, 2019, the Tenant requested a review of the order terminating the tenancy.

[16] The Board issued a decision on December 11, 2019, denying the request for a review. The Board based its decision on the following:

a. The Board did not accept that the Tenant was not reasonably able to participate in the hearing. The Board stated that the decision to grant or deny an adjournment is a discretionary decision. In this case, the Board member who denied the adjournment did so based on the evidence provided by the Tenant’s agent. No evidence was provided about when the opera had been scheduled or that the Tenant was obligated to participate in a full day rehearsal on October 30, 2019. The Board found that the decision to refuse the adjournment was reasonable, especially since the Tenant continued to refuse to provide evidence in support of his need for the adjournment.

b. The Board did not accept that the Tenant’s health issues provided an explanation for the need for an adjournment. For the purposes of the review, the Tenant provided evidence from CAMH that he was unable to attend previous hearings due to worsening mental health conditions. However, the evidence did not link the Tenant’s non-attendance at the October 30, 2019 hearing to his mental health issues, and therefore the Board did not accept that this supported a request for a rehearing.

c. With respect to the merits of the appeal, the Tenant had argued that the Board’s original order contained a serious error with respect to the finding that the Tenant was in arrears on his rent. The Tenant argued that he had provided post-dated cheques that the Landlord rejected. The Board found that this was not an error because, even if it was true, the non-payment of rent was not the reason for the termination. In addition, regardless of whether the Tenant tried to pay his rent, the rent for the relevant time period was nevertheless outstanding.

The appeal

[17] By notice of appeal dated January 3, 2020, the Tenant appealed the eviction order and the review decision to the Divisional Court. The notice of appeal states that the Board erred by failing to grant the adjournment request, by failing to accommodate his disability and by failing to apply section 83(3) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

[18] The commencement of the appeal resulted in an automatic stay of the eviction.

[19] After serving the notice of appeal, the Tenant did not perfect his appeal. The evidence is that he did not order the transcript from the hearing before the Board until June 2020. The Landlord’s evidence is that the Tenant has not paid any rent since the Board’s original order. While there is a dispute over whether the Tenant provided post-dated cheques to the Landlord for 2019, there is no evidence that the Tenant has paid any rent or made any efforts to pay rent since January 1, 2020.

Analysis

[20] The Landlord raises the following issues on this motion:

a. Whether the appeal should be quashed on the basis that it is devoid of merit, that it is an abuse of process or of undue delay; and

b. Whether, if the appeal is quashed, the Sheriff’s office should be directed to enforce the eviction.

Issue 1 – whether the appeal should be quashed

[21] The Landlord argues that the appeal should be quashed on three grounds:

a. The appeal is devoid of merit because it does not raise an issue of law;

b. The appeal should be quashed as an abuse of process because the Tenant’s failure to pay rent demonstrates that the appeal was only brought for the purpose of obtaining an automatic stay of the eviction; and

c. The appeal should be dismissed for delay because the Tenant has failed to take steps to perfect it.

The appeal is devoid of merit

[22] Section 134(3) of the Courts of Justice Act, R.S.O 1990, c. C.43, gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal".

[23] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.

[24] The Landlord’s lawyer argues that the appeal is manifestly devoid of merit because it does not raise a question of law. I agree.

[25] In Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada described the difference between a question of law and a question of fact as follows:

Briefly stated, questions of law are questions about what the correct legal test is; questions of facts are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests.

[26] In this case, the Tenant essentially raises three grounds of appeal[^1].

[27] The first ground of appeal is that the Board “capriciously” denied the Tenant’s request for an adjournment. In its review decision, the Board dealt with the Tenant’s argument that he should have been granted an adjournment. The Board noted that this was a discretionary decision and that the Tenant did not provide sufficient information at the hearing or in his review request to justify a finding that he was not reasonably able to participate in the hearing. The Board is entitled to control its own processes in deciding what type of information is required for parties to demonstrate that they were not able to participate in a hearing. In this case, the Board found that the Tenant provided insufficient information and that the hearing date was peremptory. These were findings of fact or mixed fact and law and no appeal lies from these findings.

[28] The second ground of appeal is that the Board failed to consider the Tenant’s disability. In its review decision, the Board made a finding of fact that the Tenant had failed to provide evidence of a link between his disabilities and his failure to attend the hearing. The Board found that the explanation the Tenant provided for his non-attendance was his opera performance and not his disability. Again, these were findings of fact and no appeal lies from these findings.

[29] The third ground of appeal is that the Board failed to apply section 83(3) of the Residential Tenancies Act, 2006 in its decision. Section 83(3) of the Act sets out a number of circumstances in which the Board is to refuse to grant an eviction order, including, as provided by subsection (a), where “the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement”. In this case, the Tenant argues that, in the context of the hearing before the Board, which it claims was ex parte, the Landlord had an obligation to fully disclose his serious breaches of responsibilities. He claims that in this case, the Landlord had illegally increased the rent in the past year, had failed to make necessary repairs and was acting in bad faith with respect to the claim that his son required the apartment. There are many problems with this argument. First, the hearing was not ex parte; the Tenant had notice of the hearing and chose not to participate. Second, these are factual matters that could have been raised by the Tenant but they do not give rise to legal issues. Finally, in its decision, the Board explicitly stated that it considered section 83 of the Act, that the Landlord did not provide any evidence that would make it unfair to grant the application and that the Tenant failed to attend the hearing to provide evidence that would be relevant to section 83. In the circumstances, I see no error of law. The Board considered section 83 and made a factual finding that there was no evidence that would make it unfair to grant the eviction.

[30] Accordingly, I find that the appeal does not raise any issues of law and it is therefore manifestly devoid of merit.

The appeal is an abuse of process

[31] This Court has consistently held that launching an appeal for the sole purpose of obtaining the stay of an eviction in the context of landlord and tenant proceedings is an abuse of process: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.), at para. 4

[32] As was the case in Regan and in Florsham, one of the key indicia that a party is trying to “game the system” is a circumstance where the Tenant persistently fails to pay rent prior to and throughout the appeal period without any explanation for the failure to pay rent or any evidence of an intention to remedy the situation.

[33] In this case, the Tenant has not paid rent since before launching the appeal. He has not taken any steps to perfect the appeal or move forward with the appeal until the Landlord brought this motion.

[34] When I asked during the motion whether the Tenant would be willing to pay outstanding rent if I allowed the appeal to proceed, I was advised that it would be difficult for him to do so given the pandemic. I find it difficult to accept this position given that the non-payment of rent predates the pandemic. In any event, he provided no evidence of his inability to pay rent since he launched the appeal nor did he put forward a plan for paying outstanding rent.

[35] Even if I had not found that the appeal is devoid of merit, I would have found that the appeal is a clear abuse of process.

[36] Given my findings on the merits of the appeal and the issue of abuse of process, it is not necessary to consider the issue of delay. I will only say that, if I had found that there was merit to the appeal and that the Tenant had made efforts to pay outstanding and ongoing rent, I would not have dismissed the appeal for delay given the suspension of deadlines from mid-March 2020 to September 14, 2020 due to the pandemic.

Issue 2 – whether the sheriff should be required to enforce the eviction

[37] By order dated March 19, 2020, Chief Justice Morawetz made an order suspending all evictions in Ontario unless the court ordered otherwise. Accordingly, for the duration of the moratorium, a court order was required to enforce an eviction order. Several cases considered the circumstances under which it would be appropriate to make such an order; see, for example, Chalich v. Alhatam, 2020 ONSC 2569 (Div. Ct.) and Neuman v. Anderson, 2020 ONSC 3518.

[38] At the time of this motion, the Landlord asked that, if I granted the motion quashing the appeal, that I also grant an order requiring the Sheriff’s office to enforce the eviction. The evidence put forward by the Landlord in support of this request was weak. It consisted primarily of one incident involving an overflowing bathtub in the Tenant’s apartment and the Tenant’s delay in allowing repairs. Under the circumstances, I would not have been inclined to make the order requested.

[39] However, since the hearing, the moratorium on the enforcement of evictions orders was lifted on July 31, 2020: see Attorney General for Ontario v Persons Unknown, 2020 ONSC 4676. Accordingly, this issue is moot and the Landlord is entitled to proceed with the eviction in accordance with the order below.

Conclusion

[40] For the reasons above, I make the following order:

a. The appeal is quashed;

b. The automatic stay of the Board’s decision is vacated;

c. The Landlord may file the Board’s eviction order with the Sheriff on September 30, 2020; and

d. The Tenant is to pay costs to the Landlord in the amount of $7,000 all inclusive payable within 30 days of today’s date.

[41] These reasons for decision and the order at paragraph 40 are effective on the date they are released. No formal order is required

___________________________ Favreau J.

RELEASED: September 18, 2020

[^1]: Prior to the motion, the Tenant’s lawyer filed an amended notice of appeal. I have taken the grounds of appeal as described in the amended notice of appeal into account in this analysis.