CITATION: Oladunjoye v. Jonker, 2021 ONSC 1199

DIVISIONAL COURT FILE NO.: 622/20 DATE: 20210216

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kristjanson J.

B E T W E E N:

FELIX OLADUNJOYE

Parjot Benipal

for the Moving Party/ Respondent Landlord

Moving Party/Respondent Landlord

• and -

ROBERT JONKER and KIM JONKER

Self represented

Respondents/Appellant Tenants

HEARD by videoconference: February 16, 2021

ENDORSEMENT

Kristjanson J.

[1] The tenants have been gaming the system for far too long. The tenants, Robert and Kim Jonker, moved into a rental house owned by the landlord Felix Oladunjoye in December 2019. They were supposed to pay rent of $2,000 per month. After moving in they did not pay rent for over a year, except for one payment of $2,000. As a result, the landlord is in default of his mortgage, a lien has been registered on title and the property must be sold, the landlord faces foreclosure proceedings, and is in dire financial circumstances. In November 2020 the Landlord and Tenant Board ordered the tenants to pay their rental arrears or vacate the premises, and directed that the tenants could be evicted. However, the tenants commenced an appeal to Divisional Court, and then sought an internal LTB review. The eviction has been stayed as a result. The tenant’s appeal is quashed for three reasons: (a) it is premature since the LTB review continues; (b) the appeal is absolutely devoid of merit; and (c) the appeal is an abuse of process brought for the purpose of obtaining an automatic stay of eviction. The Divisional Court stay of eviction proceedings is lifted.

Factual Background

The LTB Decision

[2] Mr. Oladunjoye commenced proceedings to terminate the tenancy for non-payment of rent a year ago. The LTB held a hearing October 23, 2020. The tenant Robert Yonker appeared at that hearing. In a decision dated November 23, 2020, Member Debbie Mohsaheb ordered the tenancy terminated unless the tenants paid the landlord the full amount owing by December 4. The LTB ordered the tenants to pay the landlord $18,027.83 for rent to November 23, 2020, plus $65.75 per day thereafter, plus interest if the full amount owing was not paid by December 4. The LTB ordered that the Sheriff could evict the tenants starting December 5.

[3] The LTB found as a fact that there was “no dispute” that the tenants owed the landlord significant rental arrears. The LTB found based on Mr. Yonker’s testimony that the tenants had not paid rent since January 1, 2020 and had no payment plan to pay the arrears. The LTB found that Mr. Yonker was receiving CERB but used funds to pay other expenses; the tenants acknowledged that they could not sustain the tenancy and were looking for other accommodation.

[4] The tenants did not pay the rental arrears by December 4 and did not vacate the house.

Notice of Appeal to Divisional Court

[5] Section 210(1) of the Residential Tenancies Act provides that an affected party may appeal an order of the LTB to the Divisional Court within 30 days after being given the order, but “only on a question of law.” Once an appeal is filed, there is an automatic stay of the Board’s order declaring the tenancy terminated or evicting a person: Rule 63.01(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] On December 17, 2020, the tenants filed a notice of appeal to Divisional Court, and were granted an automatic certificate of stay, thus staying the eviction order. The sole ground of appeal is that the person who appeared at the LTB hearing was not the tenant, and the error of law is that the LTB proceeded with the hearing without verification of identity.

Request for Review of LTB Decision and Interim Order

[7] On December 30, after commencing the appeal, the tenants requested a review of the LTB Order pursuant to s. 209(2) of the Residential Tenancies Act. The LTB’s power to review a decision or order “may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding.”

[8] By interim order of January 6, the LTB stayed the eviction order and directed that the tenant pay new rent on time and in full until the review is heard or the LTB orders otherwise. The LTB also ordered that if the tenants did not comply with the order, the Board may summarily dismiss the review.

[9] The tenants have not complied with the interim order, as they have not paid the rent on time and in full.

From Case Management Conference to Motion

[10] The landlord sought to bring an urgent motion to quash the appeal and lift the stay on eviction. Justice Favreau heard a case management conference on January 29 and scheduled this urgent motion. The landlord met the schedule for serving and uploading materials to Caselines.

[11] The landlord’s affidavit sets out the history of this matter, including the tenants’ failure to pay any rent since moving into the house in December 2019, except for one payment of $2,000 in August 2020. The rental arrears are over $24,000 as at the date of this motion.

[12] The landlord’s evidence is that as a result of the non-payment of rent for 13 months, the landlord is in default of his mortgage; a lien has been registered on title of the rental property; he may not be able to renew the mortgage on his matrimonial home; the tenants also owe $5,000 for water, gas and electricity; and the landlord is in dire financial circumstances. The landlord’s lawyer informed the court today that the landlord has received an offer to purchase for March 3, 2021 but requires vacant possession. As a result, he has not been able to accept the offer.

[13] The tenants were to serve and upload their materials to Caselines by February 12. They did not provide any materials. The tenants did not contact either the landlord’s lawyer or the court to explain their failure. In the hearing, Mr. Yonker stated that 3 weeks ago he had a stroke, although he did not file any evidence, medical or otherwise, about the effects, if any, on his competence or capacity. Ms. Yonker said that Mr. Yonker deals with all financial matters but she did she did not file evidence of her incompetence or her incapacity, and she too was subject to the filing deadlines. I note that it is less than 3 weeks since the Case Management Conference setting this matter down for hearing. At no point before today did either Mr. Yonker or Ms. Yonker contact either the Court or the landlord’s counsel to raise this issue. Given the history of the Yonkers’ attempts to game the system, I proceeded with the hearing.

Issues:

[14] The issues raised by this landlord are:

(a) Should the appeal be quashed on the grounds that the appeal is devoid of merit and does not raise a question of law?

(b) Should the appeal should be quashed as an abuse of process, in that the tenants’ failure to pay rent demonstrates that the appeal was only brought for the purpose of obtaining an automatic stay of the eviction?

(c) Should this Court lift both the Divisional Court stay of eviction and the LTB stay of eviction as set out in the LTB Interim Order?

[15] The court raised an additional issue, whether the appeal should be quashed on the grounds that it is premature, as the review initiated by the tenants is proceeding at the LTB.

Analysis

[16] The appeal is quashed for three reasons. First, it is premature. The tenants have not exhausted their remedies, as the review is proceeding before the LTB. Second, there is no issue of law, and the appeal is manifestly without merit. Third, the appeal is an abuse of process; the tenants are gaming the system, using the appeal process to prevent eviction proceedings.

[17] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that: “On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.” There are three main grounds on which the court may quash an appeal under the Residential Tenancies Act: (1) where the appeal does not raise a question of law; (2) where the appeal is manifestly devoid of merit, and (3) where the appeal is an abuse of the court’s process, including an appeal launched for the sole purpose of obtaining a stay of eviction: Meglis v. Lackan, 2020 ONSC 5049 (Div. Ct.) at para. 23. To this I would add a fourth ground: where the appeal is premature.

Prematurity – LTB Review is Proceeding

[18] The tenants commenced a review before the LTB. The LTB issued an interim order on the review, but the review is not complete. The tenants are proceeding concurrently with this statutory appeal even though they have not exhausted their internal remedies at the LTB.

[19] Generally, the doctrine of exhaustion of remedies means that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted: Canada Border Services Agency v. C.B. Powell Ltd., 2010 FCA 61 at para. 31. The reasons for judicial non-interference with ongoing administrative proceedings were set out by Stratas J.A. in C.B. Powell at para. 32, speaking of judicial review applications, but equally applicable to statutory appeals from administrative tribunals:

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway…Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience…Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge…[internal citations omitted].

[20] Here, the tenants are pursuing the remedy of a review before the LTB. There are no exceptional circumstances that would lead this court to hear the statutory appeal before the review is complete. Waiting until alternative remedies are exhausted ensures that the court respects the administrative decision-making structure adopted by the legislature. As well, there may be no need for judicial intervention if the LTB review results in a change of the decision. As a result, the appeal is quashed on the grounds of prematurity.

Appeal is Manifestly Devoid of Merit

[21] Since an appeal under the Residential Tenancies Act is restricted to a question of law, where the appeal raises no question of law, it is appropriate to quash the appeal as manifestly devoid of merit.

[22] I quash the appeal on the grounds that it raises no question of law and is manifestly devoid of merit. The only ground of appeal is that the person appearing at the LTB hearing was not the tenant. However, the landlord’s affidavit evidence, which is uncontroverted on this motion, is that the application was heard by videoconference; the tenants were both present at the hearing by videoconference; and Robert Jonker appeared at the hearing. The landlord’s evidence is that he could identify Mr. Yonker as he had several in person interactions with Mr. Yonker on multiple occasions.

[23] The tenants have filed no evidence on this motion. On the record before me, I find that the person attending the hearing was Mr. Yonker, the tenant, and the person who testified before the LTB was indeed Mr. Yonker, the tenant, as found in the decision.

[24] I note that the tenants have provided no explanation for why they did not attend the LTB hearing as they now assert. The LTB provides notice of its hearings to the tenants and may proceed in the absence of the tenants.

[25] This ground of appeal raises no question of law. It is a question of fact; the only evidence on this motion is that the tenants attended the LTB hearing. In any event, when coupled with the fact that the rent has not been paid for a year, the appeal is devoid of merit. As a result, I quash the appeal on the grounds that it raises no question of law and is manifestly devoid of merit.

Abuse of Process

[26] I also quash the appeal as an abuse of process. The Jonkers are gaming the system; the purpose of the appeal is to stay the eviction and extend their rent-free existence, which is an abuse of process: Regan v. Latimer, 2016 ONSC 4132 (Div. Ct.) at para. 25 per Patillo, J.

[27] As held by Favreau, J. in Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34, “one of the key indicia that a party is trying to ‘game the system’ is a circumstance where the Tenant persistently fails to pay rent prior to and through the appeal period without any explanation for the failure to pay rent or any evidence of an intention to remedy the situation.” That is what we have here.

[28] The Jonkers have failed to pay any rent from the outset of the tenancy except for one of the past 14 months; they have not brought any evidence before this court to explain how they will pay the rent they owe; the LTB found that Mr. Jonker received CERB but failed to pay any of that money toward rent. Their rent-free existence has come at a high price for Mr. Oladunjoye who is unable to pay the mortgage and must sell the house as a result.

Stay of Proceedings and Eviction

[29] Since the Divisional Court appeal is quashed, the Divisional Court stay of proceedings is vacated. The landlord asks that I also vacate the LTB’s interim stay issued January 6, 2021 in the review. I decline to do so, based on the principle of judicial non-interference with ongoing administrative processes. The interim stay was issued in the review proceeding, and the decision is stayed by the LTB “until otherwise ordered”. The LTB must make that decision.

[30] The justice of the case leads me, however, to make the following comments. In its interim order, the LTB provided that the tenants shall pay the landlord new rent on time and in full. They have not done so. The LTB’s interim order provides that if the tenants do not comply with the order, then the LTB may summarily dismiss the review.

[31] The landlord brought his application to terminate the tenancy and evict the tenants for non-payment of rent in February 2020. One year later – one rent-free year later for the tenants – the landlord faces the loss of the house. He has an offer to purchase the house for March 3, 2021 but requires vacant possession. This seems a case where the LTB should carefully consider whether the LTB stay should be terminated, and whether the eviction order should be enforced.

Conclusion

[32] For the reasons above, I make the following order:

(1) The appeal is quashed.

(2) The automatic stay of the Landlord and Tenant Board’s decision is vacated.

(3) Mr. and Ms. Yonker are to pay the landlord’s partial indemnity costs in the amount of $4,675.04, inclusive, payable within 15 days.

(4) The reasons for decision and this order are effective as of today’s date. No formal order is required.

(5) If an order is sought, the approval of the tenants as to form and content of the order is dispensed with.

Kristjanson J.

Date of Release: February 16, 2021

CITATION: Oladunjoye v. Jonker, 2021 ONSC 1199

DIVISIONAL COURT FILE NO: 622/20 DATE: 20210216

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kristjanson J.

BETWEEN:

FELIX OLADUNJOYE

Moving Party/Respondent Landlord

– and –

ROBERT JONKER and KIM JONKER

Respondents/Appellant Tenants

Respondent

ENDORSEMENT

Date of Release: February 16, 2021