DIVISIONAL COURT FILE NO.: 490/20
LANDLORD AND TENANT BOARD FILE NO.: CEL-91104-19
DATE: 20210310
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Baltman and Kristjanson JJ.
BETWEEN:
Saiful Amin Bhuiyan and Al-Hamra Nasreen
(self-represented)
Tenants (Appellants in Appeal)
- and -
Yi Guan
Timothy Duggan, for the Respondent
Landlord (Respondent in Appeal)
HEARD: At Toronto (by videoconference) March 9, 2021
BY THE COURT:
[1] The Tenants appeal two orders of the Landlord and Tenant Board (the “Board”), that were made on March 12, 2020 and May 8, 2020, respectively.
[2] After hearing submissions from the Tenant, the Court dismissed the appeal with reasons to follow. These are our reasons.
[3] The property in question is a house located in Mississauga. After the Tenants fell over $35,000 behind in their rent, the Board heard the Landlord’s application to terminate the tenancy. At the hearing, the Landlord and the Tenants consented to an Eviction Order, dated March 12, 2020. The Order stipulated that eviction could be voided if the Tenants paid the Landlord $35,000 by April 30, 2020.
[4] On May 4, 2020, having made no further payments, the Tenants filed a request to extend the time to pay. Mr. Bhuiyan claimed that the pandemic had delayed a sale of shares, and asked for three more months to pay the arrears. The Board refused this request on May 8, 2020, on the basis that circumstances arising after the date of the Eviction Order were not a proper basis to support an extension of time.
[5] After the refusal of their extension request, the Tenants did not vacate the unit, or pay any of the arrears owing. On September 14, 2020, the Sheriff served the Tenants with a notice to vacate by October 23, 2020.
[6] The Tenants claim that they sought a second extension request on September 18, 2020 and a third extension request on October 20, 2020, neither of which was accepted by the Board for consideration. Neither of those requests alleged that the Eviction Order contained an error or that there had been procedural unfairness in the hearing that led to the Order.
[7] Before this Court the Tenants allege that they had made an arrangement with the Landlord’s agent that the Landlord would not pursue eviction if the Tenants paid $9,500 toward the arrears of rent owing by October 16, 2020, with the balance to be paid within three months thereafter. The Tenants further claim that although they made the agreed-upon payment of $9,500, the Landlord then resiled from the alleged agreement.
[8] The Tenants have made no further payments toward the outstanding rent since October 2020, and Mr. Bhuiyan has admitted they currently owe more than $58,000 in unpaid rent.
The Legal Test
[9] The Tenants’ appeal is brought pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (RTA), which stipulates that an appeal from an order of the Board can be made only on a question of law.
Analysis
- No Error of Law in Appealed Orders
[10] The Tenants claim that the Board erred by refusing to extend the time for payment set out in the Consent Order. However, none of the allegations made by the Tenants relate to the legal merits of the Board’s orders. Taken at its highest, the Tenants’ complaint is effectively that the Landlord acted unfairly in seeking to enforce the Eviction Order, not that the Eviction Order itself (which, as noted, was made on consent) contains an error of law. Consequently, there is no basis for appellate intervention.
[11] We observe that the Tenants have represented in their extension requests and in the Notice of Appeal that they would pay the full amount owing to the Landlord within three months of those respective documents. All of those three-month deadlines have passed without full payment being made, and the Tenants have not made any payments since commencing this appeal. Consequently, even if there was any merit to the Tenants’ argument that there was an otherwise enforceable agreement to delay their eviction, the Tenants would nevertheless be precluded from enforcing that agreement as they have failed to comply with their obligations thereunder.
- Appeal is Out of Time
[12] Section 210 of the RTA provides that an appeal to this Court from an order of the Board must be brought within 30 days after the party bringing the appeal is given the order.
[13] The Eviction Order was made on March 12, 2020, and the first extension Order was made on May 8, 2020. Taking into account O. Reg. 73/20, which suspended timelines from March 16, 2020 to September 14, 2020 due to the pandemic, the deadline for the Tenants to appeal the Eviction Order was October 10, 2020, and the deadline to appeal the first extension order was October 14, 2020.
[14] However, the Tenants did not commence this appeal until October 22, 2020, and they neither sought nor obtained an extension of time to commence the appeal. This would be a further basis, if needed, to dismiss their appeal.
Conclusion
[15] It is clear that the appeal was filed to obtain an automatic stay of the eviction, and to allow the Tenants to remain in the house without paying rent. We therefore agree with the Landlord that this amounts to an abuse of the Court’s process.
[16] An order shall issue as follows:
The Appeal is dismissed;
The stay of the Board’s Order is lifted;
The Court Enforcement Office (Sheriff) is directed to provide the Landlord with vacant possession of the subject property on an immediate and expedited basis;
Costs to the Respondent Landlord are fixed at $7,000, inclusive of HST and disbursements;
The approval of the Tenants to the form and content of the Order is dispensed with.
Swinton J.
Baltman J.
Kristjanson J.
Released: March 10, 2021
DIVISIONAL COURT FILE NO.: 490/20
LANDLORD AND TENANT BOARD FILE NO.: CEL-91104-19
DATE: 20210310
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Baltman and Kristjanson JJ.
BETWEEN:
Saiful Amin Bhuiyan and Al-Hamra Nasreen
Tenants (Appellants in Appeal)
- and –
Yi Guan
Landlord (Respondent in Appeal)
REASONS FOR JUDGMENT
BY THE COURT
Released: March 10, 2021