Court File and Parties

CITATION: Wynstar Commercial Properties Inc. v. Saintyl, 2021 ONSC 1000

DIVISIONAL COURT FILE NO.: 084/21

DATE: 20210208

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Wynstar Commercial Properties Inc., Respondent (Responding Party)

AND: Ricardo Saintyl, Appellant (Moving Party)

BEFORE: Favreau J.

COUNSEL: Ricardo Saintyl, the Moving Party, representing himself, with the assistance of a friend, Cory Robinson Adam Lefler, for the Respondent

HEARD at Toronto by videoconference: February 2, 2021

ENDORSEMENT

Favreau J.:

Introduction

[1] Ricardo Saintyl brings a motion to reinstate his tenancy pending the hearing of his appeal from a decision of the Landlord and Tenant Board. For the reasons below, the motion is dismissed.

Background

[2] On April 1, 2020, Mr. Saintyl became a tenant in unit 303 at 31 Dunlop Street East, in Barrie, Ontario. The unit is part of a complex located above a restaurant.

[3] At the time, the landlord was Viafine Inc (“Viafine”). Some months later, the property was transferred to Wynstar Commercial Properties Inc. (“Wynstar”). (For the purpose of this decision, Viafine and Wynstar are interchangeably referred to as the “Landlord”.)

[4] In November 2020, the Landlord commenced an application to the Landlord and Tenant Board to terminate the tenancy on the basis that Mr. Saintyl and others who attended his unit “seriously impaired the safety” of other people. The Landlord sent the notice of termination to Mr. Saintyl by mail.

[5] The Landlord requested an expedited hearing due to the alleged safety issues. The Board granted the request and the hearing took place on December 4, 2020 by videoconference.

[6] Mr. Saintyl did not attend the hearing.

[7] The Landlord was represented by a legal representative and called one witness at the hearing, Yash Patel, who is a property manager at the complex.

[8] The Board released its decision on January 13, 2021.

[9] At the outset of the decision, the Board stated that Mr. Saintyl had been properly served with the notice of hearing by the Board.

[10] The Board then found that Mr. Saintyl and others he allowed to attend his unit seriously impaired the safety of other people based on the following evidentiary findings:

YP is the property manager at the residential complex. He testified that another tenant in the residential complex told him that she and her boyfriend were in the parking lot at the complex using a telescope to look at the moon on October 2, 2020 when the Tenant screamed at them from the rental unit, came out to the parking lot, physically menaced them, threatened to kill them, threatened to smash the telescope and “shove it up their (expletive)”. YP provided text messages he received from the tenant who was threatened which described these incidents. YP testified that this tenant moved out immediately because she feared for her safety. I find, based on the uncontradicted evidence before me, that the Tenant seriously impaired the safety of another tenant in the residential complex by physically menacing her and threatening to kill her and that these events occurred at the residential complex.

YP testified that he has received complaints from other tenants in the residential complex that the Tenant’s guests have been selling drugs in the residential complex and that there has been excessive traffic in and out of the Tenant’s rental unit. I appreciate that this is hearsay evidence that has little weight, but it is not materials to my finding. YP also testified that the Tenant’s guest offered to sell him illegal drugs in the residential complex. YP testified that the Tenant’s behaviour and that of his guests resulted in a dramatic police raid of the rental unit on October 24, 2020 where several armoured police officers converged on the rental unit. I find, based on the uncontradicted evidence before me, that the Tenant and/or his guests have seriously impaired the safety of other tenants in the residential complex by engaging in illegal activities which resulted in an aggressive police raid and that these events occurred at the residential complex.

[11] Based on these findings, the Board made an order terminating the tenancy as of November 18, 2020, and ordered Mr. Saintyl to move out of his unit by January 18, 2021. The Board further ordered that, if Mr. Saintyl did not move out of the unit by that date, the Landlord was permitted to file the Board’s order with the Sheriff’s office on or after January 19, 2021. The Board further directed that the Sheriff’s office could enforce the order as of January 19, 2021 and requested that the Sheriff “expedite the enforcement of this order”.

[12] Mr. Saintyl did not move out of the unit on January 18, 2021, and the Landlord filed the Board’s order with the Sheriff’s office on January 19, 2021. The Sheriff’s office posted the eviction notice on the door of Mr. Saintyl’s unit on January 20, 2021 advising that the eviction would take place on January 25, 2021 if Mr. Saintyl did not move out before then. Mr. Saintyl did not move out and was then evicted from the unit on January 25, 2021.

[13] Mr. Saintyl commenced an appeal from the Board’s order on January 25, 2021. In his Notice of Appeal, Mr. Saintyl claims that he did not have notice of the hearing because the Landlord withheld the key to his mailbox and that the eviction should not have been enforced given the current stay on evictions due to the COVID-19 pandemic.

[14] Given that the Sheriff had already enforced the order at the time Mr. Saintyl commenced his appeal, the Court did not issue an automatic stay of the eviction order as provided for under section 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[15] As part of his appeal, Mr. Saintyl sought to bring an urgent motion to be reinstated to his apartment pending the appeal.

Procedure and evidence on the motion

[16] In response to Mr. Saintyl’s appeal and request to schedule an urgent motion, the Court scheduled a case conference. The case conference proceeded before me on January 27, 2021. At that time, I scheduled the motion for February 2, 2021 and set a schedule for the exchange of materials in advance of the motion. During the case conference, the Landlord confirmed that it would not rent out the unit until the hearing of this motion.

[17] In advance of the motion, Mr. Saintyl served three unsworn affidavits on behalf of acquaintances. He did not serve an affidavit on his own behalf. The affidavits on behalf of Mr. Saintyl’s acquaintances address their observations about Mr. Saintyl’s unit and his efforts to obtain a key to the mailbox.

[18] In response, the Landlord served a motion record containing two affidavits. The first affidavit was sworn by Mr. Patel, and includes evidence the Landlord relied on at the hearing before the Board that led to the finding that Mr. Saintyl and people attending his unit posed a safety threat. The other affidavit was sworn by a law clerk, and addressed the history of the proceedings before the Board.

[19] On February 2, 2021, the motion proceeded by videoconference, although Mr. Saintyl participated by telephone. Mr. Saintyl was assisted by a friend, Cory Robinson, in making arguments. In addition, the three proposed witnesses were present with Mr. Saintyl and Mr. Robinson. In order to ensure that I had evidence from Mr. Saintyl on the issues on the motion, I took an oath from each of the three witnesses, affirming that the contents of their affidavits were true. I also allowed Mr. Saintyl to give viva voce evidence on the issues of whether the Landlord provided him with a key to the unit’s mailbox and his current living circumstances. The Landlord’s counsel cross-examined Mr. Saintyl on this evidence.

Analysis

[20] The issue on the motion is whether a stay of the eviction order should be granted pending the appeal, and, in particular, whether Mr. Saintyl should be permitted to return to and stay in his unit pending the hearing of this appeal.

[21] The Court’s power to reinstate a tenancy pending an appeal derives from section 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43: Young v. CRC Self-Help, 2020 ONSC 1874 (Div. Ct.), at paras. 34-43, and Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244 (Div. Ct.), at paras. 21-26.

[22] The test to determine whether a stay should be granted is the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 31, namely:

a. Is there a serious issue to be tried?[^1]

b. Will Mr. Saintyl suffer irreparable harm if the motion is refused?

c. Does the balance of convenience favour granting the motion?

Serious issue to be tried

[23] The threshold for a serious issue to be tried is low. The moving party is only required to demonstrate that the matter is not frivolous or vexatious: 2169205 Ontario Inc. v. LCBO, 2010 ONSC 5382, at para. 12. In the context of an appeal from a decision of the Board under section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, a proposed appeal does not raise a serious issue if the appeal is not on a question of law.

[24] In this case, Mr. Saintyl essentially raises three ground of appeal:

a. The Sheriff’s office should not have enforced the eviction order because there is currently a stay on evictions due to the COVID-19 pandemic;

b. The evidence presented at the Board does not support a finding that Mr. Saintyl poses a risk to other persons; and

c. Mr. Saintyl did not get notice of the hearing because the Landlord did not give him a key to the mailbox for his unit.

[25] The first issue is not really a ground of appeal but, rather, a challenge to the Sheriff’s authority to enforce the Board’s order. In any event, it is clear on the face of the order that the Sheriff’s office had the authority to enforce the order. On January 13, 2021, the Ontario government passed Ontario Regulation 13/21 under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, which suspends the enforcement of evictions under the Residential Tenancies Act, 2006. However, there are exceptions to the suspension. The first exception, set out in section 1(2)(a), is where “the Landlord and Tenant Board requests that the Sheriff expedite the enforcement of the order”. In this case, the Board’s order explicitly provides that the “Sheriff is requested to expedite the enforcement of this order”. Accordingly, the suspension of the enforcement of evictions does not apply to this order and the Sheriff was permitted to enforce the order.

[26] The second issue does not raise questions of law. Mr. Saintyl points to what he claims were two errors in the Board’s factual findings. First, he says the Board’s finding that he threatened the tenants who were using a telescope in the parking lot was not supported by the text messages the Board relied on. The text messages do not state that Mr. Saintyl made the threats but, rather, that someone visiting his apartment made the threats. Second, Mr. Saintyl argues that the Board exaggerated the incident involving the police raid because, looking at the photos from the raid, it is obvious that Mr. Saintyl voluntarily let the police into his unit. However, both alleged errors are findings of fact and therefore do not give rise to grounds for appeal. As I indicated during the hearing, if the hearing were to proceed afresh, Mr. Saintyl could make these arguments and present his evidence on these issues, but they do not form proper grounds of appeal.

[27] The third ground of appeal is Mr. Saintyl’s position that he did not get notice of the hearing because the Landlord did not give him a key to the mailbox for his unit. If in fact Mr. Saintyl was unable to participate in the hearing due to the Landlord’s actions, this could constitute a breach of procedural fairness which is a question of law.

[28] The evidence on this point is conflicting. In his affidavit, Mr. Patel says that he gave Mr. Saintyl the key to the mailbox on July 30, 2020. Mr. Patel’s affidavit includes a copy of an invoice from a locksmith dated July 30, 2020 that refers to the address of the complex and Mr. Saintyl’s unit number. For his part, Mr. Saintyl says that he attended the complex’s management office on a number of occasions throughout his tenancy asking for the key, and the key was never provided to him. One of his witnesses says that he attended the “main office” with Mr. Saintyl to obtain a key “which was not given”.

[29] The Landlord has provided direct evidence from a witness, Mr. Patel, who says he gave Mr. Saintyl the key on July 30, 2020. Mr. Patel has also provided a document that supports his evidence. In contrast, Mr. Saintyl’s evidence on this issue is vague and implausible. He claims to have made numerous requests for the mailbox key from the time he became a tenant in April 2020. These requests were never made in writing, despite the lengthy period during which Mr. Saintyl claims he did not have access to his mail. During cross-examination, Mr. Saintyl stated that he is part owner of a collection business, but stated that he does not rely on mail for his business.

[30] Despite the low bar for deciding whether there is a serious issue to be tried, I am not prepared to find that the issue of whether Mr. Saintyl was denied access to his mailbox raises a serious issue to be tried. The Landlord has provided documentary evidence in support of its position that it gave Mr. Saintyl a key. In contrast, Mr. Saintyl has only provided implausible evidence that he was never provided with a key.

[31] In any event, even if this apparent conflict in evidence was sufficient to give rise to a serious issue to be tried, as discussed below, the balance of convenience clearly favours the Landlord.

Irreparable harm

[32] The Landlord does not dispute that Mr. Saintyl meets the irreparable harm criteria in this case.

[33] Mr. Saintyl’s evidence on the motion is that, following his eviction, he spent a few nights in a hotel and he is now staying with various friends. He claims that he has been in touch with an agent about finding another apartment, but that these efforts have been unsuccessful so far.

[34] While Mr. Saintyl’s evidence of irreparable harm is not very strong, I am prepared to accept that he has met this branch of the test given the COVID-19 pandemic. While he tries to find alternative accommodation, he places himself and others at risk of contracting COVID-19.

Balance of convenience

[35] In my view, the balance of convenience favours the Landlord in this case. The Landlord does not just rely on the findings made by the Board but has provided some of the evidence it presented to the Board in support of its position that Mr. Saintyl or people he has allowed to attend the apartment pose a risk to others. The evidence includes:

a. Mr. Patel was personally approached by someone coming from Mr. Saintyl’s unit who offered to sell him drugs;

b. The police conducted a raid on Mr. Saintyl’s unit and arrested someone in the unit. The Board’s finding that there was “a dramatic police raid of the rental unit on October 24, 2020 where several armoured police officers converged on the rental unit” is supported by photos attached to Mr. Patel’s affidavit taken from the video cameras in the complex.

c. Mr. Patel viewed footage from the complex’s video cameras showing someone leaving Mr. Saintyl’s unit who appeared to be overdosing in the hallway;

d. Several tenants have complained about activities at Mr. Saintyl’s unit. This includes complaints about many people coming and going from Mr. Saintyl’s apartment and the complaint from a tenant who says that she and her boyfriend were threatened by one of Mr. Saintyl’s visitors when they were using a telescope in the parking lot. These complaints are documented through text messages attached to Mr. Patel’s affidavit; and

e. A number of tenants have terminated their tenancy due to the activities at Mr. Saintyl’s unit.

[36] Mr. Saintyl has put forward no evidence to contradict the Board’s findings or this evidence. As referred to above, during the argument of the motion, Mr. Saintyl downplayed the significance of the incidents but did not suggest that they had not occurred. In fact, one of his affiants acknowledges that the police had been called twice to respond to noise complaints. Cumulatively, the Landlord’s evidence supports a finding that Mr. Saintyl’s activities while he was a resident of the unit, including the activities of his visitors, were very disruptive and posed a threat to the safety of other residents. This risk is exacerbated by the current COVID-19 lockdown measures requiring social distancing and limiting gatherings.

[37] In contrast, while Mr. Saintyl may have challenges in finding a new apartment, he did not argue that he cannot afford to do so or that it will not be possible for him to do so. He does not have children or anyone else living with him and he had not been living in the apartment for a long time.

[38] Accordingly, I am satisfied that the balance of convenience favours the Landlord. Mr. Saintyl should not be permitted to resume the tenancy pending his appeal.

Conclusion

[39] For the reasons above, Mr. Saintyl’s motion is dismissed. Mr. Saintyl is to pay the Landlord’s costs in the amount of $1500 within 30 days of today’s date.

[40] If Mr. Saintyl wishes to pursue his appeal of the Board’s order, he can contact the Divisional Court to set a schedule for the exchange of materials and a date for the hearing.

Favreau J.

Date: February 8, 2021

[^1]: In Ali v. New Spadina Garment Industry Corp., at para. 27, Kristjanson J. held that, in that case, the reinstatement of the tenancy pending appeal was relief in the nature of a mandatory injunction, which required the moving party to meet the higher threshold of a strong prima facie case rather than a serious issue to be tried. In this case, given my findings on the serious issue to be tried and the balance of convenience, the test to be applied does not make a difference. In addition, given that the motion was brought almost immediately after the eviction and the apartment is not being rented pending the outcome of this motion, I am applying the serious issue to be tried test.