CITATION: Collee v. Engineer, 2020 ONSC 5185
DIVISIONAL COURT FILE NO.: TBA
DATE: 20200828
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: collee v. engineer
BEFORE: D.L. Corbett J.
COUNSEL: Taylor Robertson. for the tenant / appellant
Marianne Manteghi, for the landlords / respondents
CASE MANAGEMENT ENDORSEMENT
[1] This matter came on for a case management teleconference on August 28, 2020.
[2] The consent order of the landlord and tenant board terminated the tenancy as of June 30, 2020. The tenant did not leave at the end of the tenancy because, as a result of COVID-19, she had difficulty finding new accommodations. She has continued to pay rent during her period of overholding. The landlord accepted these payments. The Board order contemplated per diem payments during a period of overholding and it is clear that accepting these payments has not created a new tenancy – at most the landlord was showing forbearance (a) because of its inability to enforce an eviction order because of COVID-19, and (b) in recognition of the difficult situation.
[3] The tenant then commenced an appeal of the consent order in this court, primarily on the basis that the parties had not contemplated COVID-19 and that it would be unconscionable to enforce the consent order in light of the changed circumstances. This appeal was brought after the expiry of the appeal period in the Residential Tenancy Act (the LTB order was in late January, and the suspension of court operations as a result of COVID-19 was not until mid-March). No motion was brought to extend the time to appeal.
[4] Nonetheless, when the tenant commenced her appeal in this court, the court issued a certificate of stay and directed this urgent case management conference.
[5] During the conference it was revealed that the tenant has advised the landlord that she will be leaving the premises on September 3, 2020. She consents to an order dismissing her appeal without costs and lifting the stay after September 3rd. The landlord would not be able to obtain a more favourable result than this by way of a motion to quash, a motion to lift the stay, and/or a hearing of the appeal on the merits – none of these steps would be accomplished before September 3rd, and both would involve cost for the landlord.
[6] Taking all of this into account, after discussion with the parties and consent:
(a) The appeal is dismissed effective 12:01 am, September 4, 2020, without costs.
(b) The stay pending appeal and the Certificate of Stay are lifted effective 12:01 am, September 3, 2020.
(c) The tenant’s tenancy is terminated as of June 30, 2020, in accordance with the order of the LTB, and no further proceedings may be taken in respect to the tenancy before the LTB.
(d) Any issues between the landlord and the tenant arising from events from and after this case management conference shall be returned before this court at a case management conference no later than September 11, 2020.
(e) The tenant is liable to the per diem occupancy charge stipulated by the LTB in its consent order in respect to her continued overholding in the premises.
[7] This endorsement is effective from the time that an unsigned version is transmitted to counsel for the parties by court staff by email. A signed version shall be provided to the parties in due course.
“D.L. Corbett J.”