Court File and Parties

CITATION: Khara v. CAPREIT LP, 2020 ONSC 5458

DIVISIONAL COURT FILE NO.: DC-20-0015

DATE: 20200911

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Amandeep Khara and Gurm Kulwant, Responding Parties/Applicants

AND:

capreit limited partnership, Moving Party/Respondent

BEFORE: L.A. Pattillo J.

COUNSEL: Mark M. Melchers, for the Moving Party

Amandeep Khara, In Person, (with her friend Mr. Sayed)

HEARD at Toronto by Teleconference: September 10, 2020

ENDORSEMENT

[1] This is a motion by the moving party, CAPREIT Limited Partnership (the “Landlord”) for, among other things, an order dismissing the responding parties, Amandeep Khara and Gurm Kulwant’s (collectively the “Tenants”) application for judicial review (the “Application”) pursuant to rule 2.1.01 of the Rules of Civil Procedure on the ground it is frivolous, vexatious and an abuse of process.

[2] At the conclusion of the hearing, I granted the motion and dismissed the Application with reasons to follow, both because no response has been filed to the Court’s rule 2.1.01 Notice dated July 2, 2020 and because it is clearly frivolous, vexatious and an abuse of process. Further, in light of the fact that Ms. Khara has been evicted from the rental premises at 1611-5 King’s Cross Road in Brampton, the Application is now also moot. These are my reasons.

[3] Amandeep Khara occupied the rental premises pursuant to a tenancy agreement with CAPREIT Limited Partnership (the “Landlord”). Gurm Kulwant passed away in November 2018. At the hearing, Mr. Melchers advised that Ms. Khara had been evicted from the rental premises by the Sheriff’s office on September 3, 2020.

[4] This matter has a long and tortured history beginning in 2018 when the Landlord brought an application before the Landlord and Tenant Board (the “Board”) to terminate the tenancy and evict the Tenants on the basis of arrears of rent and persistently late payment.

[5] The Landlord’s application was settled by the parties on June 4, 2018 and on June 6, 2018, the Board issued a consent order requiring the Tenants to pay in full the monthly rent on or before the first day of each month for one year starting July 1, 2018, failing which the Landlord could move ex parte before the Board for an order terminating the tenancy and evicting the Tenants (the “Consent Order”).

[6] In January 2019, Ms. Khara failed to pay the rent on or before the first of the month. As a result, the Landlord moved ex parte before the Board and on January 25, 2019, the Board issued an order terminating the Tenants’ tenancy (the “Termination Order”).

[7] In response, Ms. Khara brought a motion to set aside the Termination Order which resulted in it being stayed. On February 21, 2019, the date of the hearing of the motion, Ms. Khara failed to appear. On February 22, 2019, the Board dismissed her motion as abandoned and lifted the stay of the Termination Order (the “Dismissal Order”).

[8] On February 26, 2019, Ms. Khara requested the Board review the Dismissal Order. The review request was dismissed by the Board on February 28, 2019 (the “Review Order”).

[9] On April 5, 2019, Ms. Khara appealed the Consent Order, the Dismissal Order and the Review Order to the Divisional Court which resulted in an automatic stay of the Board’s orders terminating the tenancy and evicting the Tenants. Subsequently, Ms. Khara took no steps to perfect her appeal.

[10] On December 2, 2019, the Registrar of the Court sent Ms. Khara a Notice Dismissing the Appeal (No Transcript) advising that the appeal would be dismissed for failure to perfect within the time required by the rules if it was not perfected within 10 days of service of the notice.

[11] On January 6, 2020, Ms. Khara brought a motion to extend the time within which to perfect the appeal, returnable January 30, 2020. On January 30, 2020, Mr. Sayed appeared on her behalf and requested an adjournment. Bielby J. adjourned the motion to February 25, 2020 peremptory to Ms. Khara and directing that she must appear either in person or by a lawyer and must pay $6,000 into court on or before February 18, 2020 or her motion would be dismissed.

[12] Neither Ms. Khara nor a lawyer representing her attended on the return of her motion on February 25, 2020. As a result, Bielby J. dismissed both the motion and the appeal.

[13] On March 10, 2020, Ms. Khara commenced the Application in both her and Ms. Kulwant’s names seeking to review Bielby J.’s order, dismiss the eviction orders of the Board and reinstate the tenancy agreement.

[14] On June 18, 2020, counsel for the Landlord wrote to the Court, setting out the above background and requested that the Court exercise its authority to dismiss the Application pursuant to rule 2.1.01(1) and (6).

[15] On July 2, 2020, the Court issued a Notice That Proceedings May Be Stayed or Dismissed pursuant to rule 2.1.01 to the Applicants (the “Notice”) stating that the Application would be stayed or dismissed in the absence of them filing written submissions of no more than 10 pages responding to the Notice. In a separate email of the same date, the Court requested that the Applicants respond to the following:

a) Explain why it was unfair for Bielby J. to proceed on February 25, 2020;

b) Provide the total of rent arrears and if there is any dispute of the Landlord’s statement of arrears, to provide proofs of payment;

c) Explain in detail the grounds upon which the Applicants say Bielby J.’s order was wrong; and

d) Explain why the Court should not make an order under r. 2.1.02(3) prohibiting the Applicants from taking any further steps in the Court.

[16] The Notice and email were sent to Ms. Khara at the email address she was using on July 2, 2020. They were also printed out by the Landlord’s counsel and mailed to her at the rental premises on July 6, 2020. No response has been received by the Court.

[17] Finally, the Landlord’s Factum and Motion Record containing its Notice of Motion together with the Notice, the Court’s accompanying email, Bielby J.’s endorsement of January 30, 2020, his order of February 25, 2020, the Court notices and orders, the Board orders and the Notice of Application were served on Ms. Khara personally on August 28, 2020.

[18] Rule 2.1.01(1) provides that the court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or an abuse of process of the court. Rule 2.1.01(3) provides that unless otherwise ordered, written submissions are required and sets out the procedure for notice which was followed in this case. Rule 2.1.01(3) 3. provides that in the absence of the plaintiff or applicant filing written submissions, “the court may make the order” without notice to any party.

[19] Before me, with my permission, Mr. Sayed spoke for Ms. Khara who was present during the hearing. When I asked why no material had been filed with the Court either to respond to the Notice or to explain why she has not appeared either before the Board or the Court, he explained she had been ill and that they intended to provide material shortly.

[20] Given the history of this matter, it is too late for Ms. Khara to file material. I am satisfied she received the rule 2.1.01 Notice and accompanying email from the Court on or about July 2, 2020. Apart from the 15 days required, she has had more than enough time to respond. She has certainly been able to file material to commence proceedings when required. The Application must therefore be dismissed pursuant to r. 2.1.01(1) and (3) 3.

[21] The Application is clearly frivolous and vexatious on its face. Apart from the fact that there is no jurisdiction of the Divisional Court to judicially review an order of a Superior Court Judge or orders of the Board, the grounds set out in the Notice of Application do not raise a justiciable issue. It has no merit and has been instituted, in my view, in the absence of reasonable grounds.

[22] Further, I am also satisfied the Application is clearly an abuse of the process. Given the history of this matter, which stems from a consent order before the Board, it is clear that Ms. Khara has utilized the Court process for the sole purpose of continuing not having to pay rent. She has not paid rent since January 31, 2019. On multiple occasions she has commenced proceedings in both the Board and the Court which had the effect of either delaying or staying orders and then failed to appear, all the while paying no rent. The Application is yet the latest example of such conduct.

[23] Finally, as I noted at the outset, in light of the fact that Ms. Khara was evicted from the rental premises on September 3, 2020, the Application is now also moot. It purported to deal with the dismissal of her appeal to this Court from the Board’s orders terminating her tenancy and providing for her eviction. As that has now occurred, however, there is no longer any lis. The Board’s orders have been carried out.

[24] For the above reasons, I dismissed the Application. As the Landlord does not seek costs, there is no order for costs.

L.A. Pattillo J.

Date: September 11. 2020