CITATION: Lysak v. Atkinson, 2020 ONSC 6972

DIVISIONAL COURT FILE NO.: 659/19

DATE: 20201117

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Gord Lysak, Applicant

AND:

Zoe lorraine atkinson, Respondent

BEFORE: Penny J.

COUNSEL: David S. Strachin for the Applicant

Zoe Lorraine Atkinson on her own behalf

ENDORSEMENT

Background

[1] In my endorsement of October 23, 2020 (2020 ONSC 6477), I directed the registrar of the Divisional Court to give notice to Ms. Atkinson in Form 2.1A that the Court was considering making an order under rule 2.1.02 dismissing her motion for a full panel review of a procedural order of Favreau J. dated February 19, 2020. The notice provided Ms. Atkinson with 15 days to file a written statement explaining why her motion ought not to be dismissed as frivolous and vexatious. The endorsement and the notice were served on October 23, 2020. Under the Rules of Civil Procedure, Ms. Atkinson had until November 16, 2020 to provide her submission. No submission was filed.

[2] As set out in my prior endorsement, the Landlord and Tenant Board made an order on September 3, 2019 terminating Ms. Atkinson’s tenancy for non-payment of rent and other reasons. Ms. Atkinson’s request for a review was dismissed by the Board on November 25, 2019. She appealed to this court on December 3, 2019. Among other things, her appeal had the effect of staying the Board’s eviction order. Ms. Atkinson’s motion to extend the time for perfecting her appeal was granted, on terms, by Favreau J. on February 19, 2020.

[3] The terms of that order were:

(a) perfection of the appeal no later than March 6, 2020;

(b) payment of all outstanding rent ($4,473) by February 28, 2020;

(c) ongoing payment of rent until the appeal was heard; and

(d) if Ms. Atkinson did not pay her rent, the Landlord was at liberty to move without notice before the registrar on affidavit evidence demonstrating non-compliance. In that event, the registrar was ordered to dismiss the appeal and lift the stay of the Board’s eviction order, such that it could be enforced.

[4] Immediately after Favreau J. released her decision, Ms. Atkinson brought an urgent motion to stay Favreau J.’s order. Corbett J. denied that motion on February 20, 2020, on the basis that there was no evidence to support the granting of an interim stay. Ms. Atkinson then requested an urgent hearing of her motion to review the order of Favreau J. That request was also denied by Corbett J., on the basis that there was no evidence of urgency and that it would be unfair to one side. Ms. Atkinson again requested urgent relief, which was again denied by Corbett J. Ms. Atkinson was advised that there were no further steps available to her prior to the deadlines imposed in the order of Favreau J.

[5] Ms. Atkinson did not comply with the deadlines for perfecting her appeal or for payment of the arrears of rent. Accordingly, on the Landlord’s motion, as directed by Favreau J., the registrar dismissed the appeal and lifted the stay of enforcement of the Board’s eviction order.

[6] Then, on March 25, 2020, Ms. Atkinson sought relief from enforcement of the Board’s eviction order. In a lengthy endorsement of March 26, 2020, Corbett J. explained to Ms. Atkinson that, in accordance with the order of Chief Justice Morawetz of March 19, 2020, enforcement of Board eviction orders was stayed absent specific order of the court. As the Landlord had brought no motion seeking such an order, Corbett J. held there was no immediate prospect of any enforcement. Corbett J. went on to warn Ms. Atkinson that “when the immediate situation passes, she will still be subject to the eviction order she now faces as a result of her non-compliance with the order of Favreau J.” In para. 11 he explained:

I wish to be clear with Ms Atkinson about her current situation, however. The Chief Justice’s order suspending evictions continues only so long as regular court operations are suspended. Once that ends, the landlord will be able to enforce the eviction order. Ms Atkinson may pursue a motion for further relief at that time, if she is so minded, but her motion will not be “urgent” until the suspension of enforcement of eviction orders is over.

[7] On August 1, 2020, the moratorium on evictions came to an end. Ms. Atkinson obtained no order from the court prohibiting the Landlord from enforcing the Board’s eviction order. The Landlord enforced the Board’s order and Ms. Atkinson has been evicted from her apartment.

[8] Then, by email to the Divisional Court of September 30, 2020, Ms. Atkinson moved for an order setting a date for her requested review, by a full panel of the Divisional Court, of the February 19, 2020 order of Favreau J.

[9] As noted in my prior endorsement, Ms. Atkinson failed to perfect her appeal and failed to pay her rent in accordance with the Favreau J. order. As a consequence, her appeal was dismissed and the stay was lifted. Ms. Atkinson took no steps to reinstate her appeal with the result that she has no appeal from the Board’s eviction order pending. Further, notwithstanding Corbett J.’s warning, Ms. Atkinson obtained no order prohibiting the Landlord from what was, after August 1, 2020, otherwise lawful enforcement of the Board’s eviction order and that eviction took place.

[10] I also observed that, in these circumstances, any review of Favreau J.’s February 19, 2020 order appeared, on its face, to be moot; that is to say, any review of Favreau J.’s order now, given what has happened, will have no practical value, meaning or relevance. If Ms. Atkinson’s motion for review is moot, it can have no chance of success.

RULE 2.1

[11] Rule 2.1.02 provides:

Order to Stay, Dismiss Motion

2.1.02 (1) The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2) Subrules 2.1.01 (2) to (7) apply, with necessary modifications, to the making of an order under subrule (1) and, for the purpose,

(a) a reference to the proceeding shall be read as a reference to the motion; and

(b) a reference to the plaintiff or applicant shall be read as a reference to the moving party.

Prohibition on Further Motions

(3) On making an order under subrule (1), the court may also make an order under rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave.

[12] In this context, a “frivolous” motion is one that cannot succeed. A “vexatious” motion is one brought for an ulterior or wrongful purpose, Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA).

[13] The order of Favreau J. granted Ms. Atkinson an indulgence and provided a path for Ms. Atkinson to prosecute her appeal and remain in her unit during the period of the statutory stay. In exchange, Ms. Atkinson was required to pay her rent. Ms. Atkinson failed to pay her rent. As a result, the Landlord successfully moved for a dismissal of the appeal and the stay was lifted.

[14] Ms. Atkinson then enjoyed the benefit of a province-wide stay of eviction orders during the initial months of the COVID-19 pandemic. Corbett J.’s endorsements clearly set out what Ms. Atkinson had to do when the Chief Justice’s province-wide order was lifted. Ms. Atkinson failed to take the steps outlined by Corbett J. When the province-wide stay was lifted, the Landlord took action and Ms. Atkinson was evicted.

[15] The effect of Favreau J.’s case management order of February 19, 2020 order is entirely spent. A review of that order can have no practical value, meaning or relevance to anything to do with Ms. Atkinson’s legal situation. The order is moot; any review of the order is also moot. Being moot, the request for a review of that order has no chance of success. The motion for review is therefore frivolous or vexatious.

[16] Under s rule 2.1.02, Ms. Atkinson’s motion for a review of the February 19, 2020 order of Favreau J. is dismissed. The appellant shall not bring this (or, by virtue of rule 37.16, any other) motion in this matter before this Court without leave. The Divisional Court Registrar is directed to refuse to accept for filing any further motions in this matter by Ms. Atkinson in the absence of a certified order granting her leave to do so.

Penny J.

Date: November 17, 2020