CITATION: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 1489
DIVISIONAL COURT FILE NO.: 228/20
DATE: 2021/03/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Lederer and Mew JJ.
BETWEEN:
David Prabakar Jayaraj
Appellant
– and –
Metcap Living Management Inc.
Respondent
David Prabakar Jayaraj, on his own behalf
Rob L. Winterstein, for the Respondent
HEARD by videoconference: February 24, 2021
H. SAchs J.
[1] Mr. Jayaraj (the “Tenant”) brings two motions before us pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C43, seeking to set aside or vary two decisions of a single judge of the Divisional Court: (1) Penny J.’s Order of November 16, 2020, quashing the Tenant’s appeal; and (2) Corbett J’s Order of January 20,2021, refusing to stay Penny J.’s Order. The motion was heard using the “Zoom” technology. The Tenant appeared, but his internet would not support the use of the video function. Thus, his submissions were made using the audio function only.
[2] The Tenant stopped paying his rent in August of 2019. The Landlord commenced eviction proceedings by a N4 Notice dated and mailed on August 8, 2019.The Landlord and Tenant Board (the “LTB”) issued a Notice of Hearing on August 30, 2019 for October 28, 2019. The Tenant did not attend the hearing on October 28, 2019 and the LTB issued an eviction order the next day (October 29, 2019).
[3] The Tenant filed a request for review on November 4, 2019. The basis for this request was the Tenant’s allegation that he had never received notice of the eviction proceedings or the October 28, 2019 hearing. On November 8, 2019, the LTB granted an Interim Order staying the eviction order until “the review is resolved”. The reviewing hearing was set for December 18, 2019.
[4] On December 18, 2019 only the Landlord appeared. The Tenant did not file a request to reschedule, but the Landlord advised the LTB that the Tenant had asked the Landlord to consent to an adjournment of the hearing. The Landlord advised the Tenant it was prepared to consent to the adjournment, but only on the condition that the Tenant pay his ongoing rent until the review hearing took place. The LTB noted that since the Tenant had not appeared or filed a request to reschedule, the only basis on which the hearing could be adjourned was with the Landlord’s consent and that consent was contingent on the Tenant pay ongoing rent during the period of the adjournment. Thus, on December 19, 2019, the LTB adjourned the review hearing to a date to be fixed by the LTB and ordered that the Tenant was to pay his rent staring in January of 2020 until the matter was heard. The order further provided that if the Tenant did not pay his ongoing rent the LTB could refuse to hear his evidence or submissions. The Tenant did not pay any ongoing rent.
[5] A hearing date was set for March, which was adjourned because of COVID-19. A new date was set for August 18, 2020. On August 18, 2020 only the Landlord appeared; the Tenant did not. As a result, the review was denied and the interim stay order was set aside. In its order of August 18, 2020 the LTB noted that the Tenant had been properly served with notice of the hearing (which occurred by teleconference).
[6] In a separate application the Tenant moved before the LTB for an order determining that the Landlord had harassed, obstructed, coerced, threatened or interfered with him, illegally entered his rental unit and interfered with his reasonable enjoyment of that hearing. The LTB dismissed that application on June 23, 2020. The Tenant requested a review of the June 23, 2020 dismissal order, which the LTB denied on July 31, 2020.
[7] The Tenant appealed the LTB’s order evicting him and its order dismissing his request for a review of the eviction order. As a result of the filing of his appeal, the eviction order was automatically stayed. His ground for the appeal was that he did not receive notice of either the hearing that led to his eviction or to the hearing where his review was dismissed.
[8] The Landlord moved to quash the Tenant’s appeal. On November 16, 2020 Penny J. granted the Landlord’s motion on two bases. First, he determined that the Divisional Court did not have jurisdiction to hear the appeal since the appeal did not raise a question of law; the issue of whether the Tenant had received notice was a question of fact or a question of mixed fact and law. Second, the appeal was an abuse of process because it was being used as a device to avoid paying rent. As put by Penny J., “The tenant has offered no reasonable excuse for his non-payment of rent. He is, in my view, ‘gaming’ the system to live rent free under the protection of a statutory stay.” Penny J. also provided that his order quashing the appeal would be stayed if the Tenant paid the arrears owing ($21,776.24) in full before November 30, 2020 and if he continued to pay ongoing rent until the appeal was heard.
[9] The Tenant did not pay the outstanding arrears. Instead he moved before Corbett J. to stay Penny J.’s order pending review. Corbett J. denied his request on January 20, 2021. In doing so he found that the Tenant had not established any arguable basis for setting aside Penny J.’s finding that his appeal was an abuse of process.
[10] On the motion before us, the Tenant made a number of submissions that I do not propose to address. These submissions primarily centred around allegations of a conspiracy between the Landlord, the LTB, Corbett J. and Penny J. to defeat his rights and evict him from his home. When this court refused to answer his questions about how we were assigned his case, the Tenant alleged that we were part of the same conspiracy.
[11] The submission that I do propose to deal with is the Tenant’s argument that his appeal should never have been quashed as an abuse of process. According to the Tenant, he was not seeking to “game the system”, but seeking to argue his appeal on the merits, an appeal that was based on what he asserted was a denial of his procedural rights.
[12] The problem with this submission is that in this case the evidence supports Penny J.’s finding that the Tenant’s appeal was in fact an abuse of process. First, the LTB’s eviction order was based on the Tenant’s failure to pay rent. In seeking to review that order the Tenant never stated that he had a defence to the Landlord’s claim that he had not paid rent. That situation has not changed. The Tenant has not advanced any reasonable explanation for why he is not paying his rent, which is now in arrears in the amount of over $26,000.00. Second, the Tenant was given several opportunities to pursue his argument about lack of notice so that he could move to set aside the eviction order. These opportunities were conditional on the payment of rent, rent that the Tenant had advanced no reason for not paying. The Tenant refused to take advantage of these opportunities. Instead he just instituted more proceedings, with the result that he has been living in the premises at issue on a rent- free basis for over 18 months. The only reasonable inference to draw from these actions is that the Tenant’s desire to set aside the eviction order and have a new hearing before the LTB is not motivated by the fact that he has a meritorious defence to the basis for that order (non-payment of rent), but by a desire to prolong his ability to live rent free. To use the system in this way is an abuse of process.
[13] For these reasons the Tenant’s motion is dismissed. This dismissal will allow for the eviction order to be enforced. However, such enforcement is not to take place while Ontario has rules in place suspending the enforcement of eviction orders in Toronto due to COVID-19. The parties may address us in writing on the question of costs. We have the Landlord’s Bill of Costs. The Landlord shall make any additional submissions within 10 days from the release of this endorsement, and the Tenant shall have 10 days to respond. Such submissions shall not exceed two pages in length.
Sachs J.
I agree _______________________________
Lederer J.
I agree _______________________________
Mew J.
Released: March 2, 2021
CITATION: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 1489
DIVISIONAL COURT FILE NO.: 228/20
DATE: 2021/03/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Lederer and Mew JJ.
BETWEEN:
David Prabakar Jayaraj
Appellant
– and –
Metcap Living Management Inc.
Respondent
REASONS FOR JUDGMENT
H. SACHS J.
Released: March 2, 2021