Herchawi v. Quddus

CITATION: Herchawi v. Quddus, 2020 ONSC 6822

COURT FILE NO.: 268/20

DATE: 20201106

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Herchawi v. Quddus

COUNSEL: Mr Herchawi, self-represented Tenant / Appellant

Mr Quddus, self-represented Landlord / Respondent

BEFORE: D.L. Corbett J.

DATE: November 6, 2020

In Chambers, In Writing

CASE MANAGEMENT ENDORSEMENT

[1] This is a landlord and tenant appeal.

[2] By email dated September 21, 2020, the respondent landlord sought to bring a motion to the Divisional Court quashing the appeal. In a supporting affidavit the landlord advised that the tenant had made rental payments of $8,800 since the decision of the Landlord and Tenant Board, leaving a balance owing of $22,801. The tenant had not perfected his appeal and had not ordered transcripts from the hearing.

[3] The court directed a case management teleconference, which was held before me on October 1, 2020. The court confirmed the directions given at the case management teleconference by email to the parties on October 8, 2020, in the following terms:

I am directed by Justice Corbett to confirm the case management teleconference with His Honour of October 1, 2020, as follows;

The landlord has provided an affidavit showing the tenant is in substantial arrears of rent, has brought his appeal out of time, and has not ordered transcripts from the LTB hearing.

The tenant is entitled to respond to the landlord's evidence. In this response, the tenant shall provide his evidence as to the rent that has been paid, the rent that is owing, the steps the tenant has taken to order a transcript and to move the appeal forward. Where the tenant disputes the landlord's evidence respecting rent that has been paid, the tenant should provide the best evidence available to substantiate the rent payments, including copies of cheques, copies of other payment methods, and, where it is alleged that rent has been paid in cash, bank statements or other documents showing the source of cash used to pay the rent.

At the case management teleconference the court imposed a deadline of October 8, 2020 for the tenant to provide this information in the form of an affidavit. That direction was effective from the time it was made orally, but, in light of the tightness of that deadline and the delay in providing this email confirmation, that deadline is extended to October 13, 2020, 12 noon. The tenant's affidavit may be provided to the court unsworn by email.

The court will give further directions once it has received the tenant's email attaching the tenant's affidavit, as directed. If the tenant does not provide the requested evidence by October 13, 2020, 12 noon, then the appeal will be quashed.

[4] By email dated October 8, 2020, the tenant provided an affidavit to the court pursuant to the directions given at the case management conference. The tenant did not copy the landlord on his communications with the court, and unfortunately the court did not notice that the tenant had failed to copy the landlord on this communication.

[5] In his affidavit, the tenant says as follows (among other things):

(a) The arrears ordered in October 2019 ($4,400) were paid in full. The tenant provides no documents evidencing these payments.

(b) The tenant has been paying the landlord rent since 2012 without default. It was not until April 2020, because of financial difficulties related to COVID-19, that the tenants fell into arrears.

(c) The landlord was paid $3,000 including two bank transfers and $1,000 paid in cash by the tenant’s father.

(d) The landlord refused a payment of $6,000 and a promise from the tenant to pay “another few thousand a week until he was paid up”.

(e) The landlord was claiming “absurd numbers that didn’t add up.”

(f) The landlord was paid all rent due to April 2020, and thereafter rent owed is $2,200 x 7 months. This equals $15,400, less the $3,000 the tenant claims has been paid.

(g) The tenant made purchases on the landlord’s behalf and/or at his request to be offset against rent totaling $1,250.

[6] On the tenant’s evidence the tenants owe the landlord $11,150 for premises, the monthly rent for which is $2,200. On the landlord’s evidence, the balance owing is $22,801. The tenant has not provided proof that he has ordered the transcript.

[7] The tenant’s materials do not provide the information the court directed the tenant to provide at the case management conference of October 1, 2020. The tenant asserts that all the rent was paid to April 2020 but has not provided any corroborating evidence for these contested payments. The court directed the tenant to provide copies of cheques, bank statements, or other documents evidencing payment, but all the tenant has provided for the period up to April 2020 is the tenant’s bald assertions. Then, on the tenant’s own evidence, arrears have accrued since April of roughly five months’ rent.

[8] The tenant has provided no evidence respecting the steps the tenant has taken to order transcripts and to move the appeal along.

[9] It is not fair to the landlord that the tenant remain in the premises when so much rent is outstanding. The appeal was commenced too late, there is no evidence the tenant has ordered transcripts, the tenant has failed to provide the evidence directed by this court respecting the landlord’s claimed arrears, and on the tenant’s own evidence the accumulating arrears are unacceptable.

[10] Order to go lifting the stay of the eviction order of the Landlord and Tenant Board and setting aside the certificate of stay issued by this court. The Sheriff is encouraged to give this eviction priority given the unpaid rent that has accrued.

[11] This does not dispose of the tenant’s appeal. If the tenant decides to pursue this appeal, even though the stay of the eviction order is now removed, then he will need to take reasonably prompt steps to move forward. To this end, the tenant is ordered to do the following:

(a) Order transcripts by November 13, 2020 and provide proof that he has done so to the landlord and to the court by email by November 17, 2020;

(b) Serve his appeal record and factum by December 31, 2020;

(c) Give formal notice of this appeal to the Landlord and Tenant Board by November 13, 2020.

[12] If the tenant does not take the steps described in the previous paragraph by the specified deadlines, the landlord may request that the court dismiss the appeal. Such a request may be made to the court by email, with a copy of the email sent to the tenant.

[13] The landlord may provide a draft order to the court to obtain a formal court order, and approval as to form and content of that draft order by the tenant is dispensed with. We appreciate that the landlord had received pro bono legal assistance in this matter, and he may wish to consult with pro bono counsel for assistance on drafting the required order, which the Office of the Sheriff will likely require before enforcing the eviction order of the Landlord and Tenant Board.

[14] The tenant’s evidence should have been copied to the landlord by the tenant. However, the parties are self-represented and the tenant may not have understood that he had to do this. The court office should have noticed that the landlord had not been copied on the tenant’s email, but the informality attendant on the court’s new ways of doing business virtually during the COVID-19 pandemic led to this being overlooked. If the tenant’s evidence had raised an issue about whether to lift the stay, I would have directed that the tenant’s evidence be provided to the landlord, and I might have either (a) given the landlord a chance to adduce reply evidence; or (b) directed a teleconference to hear argument from the parties. However, given that the tenant’s evidence did not require all the information this court directed be provided, provided information that shows a continuing unacceptable level of rent arrears, and failed entirely to address the tenant’s steps to move this appeal forward, I concluded that no useful purpose would be served in giving the landlord notice of the tenant’s evidence prior to the court issuing this decision: all that would have been accomplished by doing that would have been further delay, to the landlord’s detriment.

[15] This decision is effective from the time that an unsigned copy of this endorsement is transmitted to the parties by the court; a signed copy of the endorsement will be provided to the parties in due course.

D.L. Corbett J.

Date: November 6, 2020