Citation: Lara v. Veluz, 2021 ONSC 288
DIVISIONAL COURT FILE NO.: 250/20 DATE: 20210113
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
John Jose Lara Respondent/Appellant
– and –
Bheltor Veluz Moving Party/Respondent
Counsel: Caryma SA’D, for the Moving Party John Jose Lara in person
HEARD at Toronto by Videoconference: January 12, 2021
L.A. Pattillo J.
[1] This is a motion by the respondent, Bheltor Veluz, (the “Landlord”) for an order dismissing the appeal of the appellant, John Jose Lara (the “Tenant”) from the order of the Landlord and Tenant Board dated September 11, 2020.
[2] At the conclusion of the hearing, I advised the parties that for reasons which would follow shortly, the motion was allowed, the Tenant’s appeal was quashed, and the stay issued by the court at the commencement of the appeal was lifted. I further directed that the eviction order which had been previously issued by this court but was being held in escrow by the Landlord’s counsel be released from escrow on 11:50 pm on January 31, 2021.
[3] Beginning in September 2014, the Tenant leased the basement apartment in the Landlord’s home at a rental of $950 per month. On December 1, 2019, both the Tenant and the Landlord agreed, on terms, to terminate the tenancy on January 31, 2020. The agreement was set out in the Board’s N11 form which both parties signed.
[4] When the Tenant did not move out of the apartment by January 31, 2020, the Landlord moved ex parte before the Board to enforce the N11 agreement. On February 19, 2020, the Board issued an order terminating the tenancy as of January 31, 2020 and directing, among other things, that the Tenant must move out of the rental unit on or before March 1, 2020.
[5] On February 26, 2020, the Tenant brought a motion before the Board to set aside the February 19, 2020 ex parte order. The grounds listed in the form were that his son was struggling to attend school and moving would make the situation worse; the Tenant had a suspected medical issue which needed to be resolved; the Landlord needed to repair the rental premises; and the Landlord needed to respect privacy.
[6] The Board set a hearing date for the Tenant’s motion of May 15, 2020 but with the Board’s subsequent suspension of non-urgent matters due to COVID-19, that date was vacated, and a new hearing date was set for September 10, 2020.
[7] On September 10, 2020, the Tenant’s motion proceeded before the Board by videoconference. The Landlord and his counsel together with a Tagalog translator attended. The Board waited until 11:30 am but the Tenant did not attend. On September 11, 2020, the Board issued an order denying the Tenant’s motion to set aside the Board’s February 19, 2020 order based on the Tenant’s failure to appear and support the motion. The Board further lifted the stay of that order; and directed that the February 19, 2020 order was unchanged.
[8] On September 14, 2020, the Tenant filed an appeal with this court from the Board’s September 11, 2020 order asking that the order be set aside, and the motion be re-heard. The grounds listed in the Notice of Appeal are improper service, no access to videoconferencing hearing; the Board is inaccessible due to the pandemic and eviction is not possible due to the pandemic. Upon filing the appeal, the court issued a stay of the Board’s order.
[9] The Landlord’s motion to quash came before Corbett J. by videoconference on November 24, 2020. In a brief endorsement, after summarizing the position of the parties and noting the issues created by COVID–19 and that the Tenant was in arrears of rent, Corbett J. ordered, with the consent of the parties:
a) That the Tenant pay the Landlord $950 by noon on December 31, 2020 failing which the Landlord could schedule a further teleconference on short notice for an order to lift the stay of eviction;
b) The stay of the Board’s eviction order was lifted, effective 11:50 pm on December 31, 2020; and
c) The parties shall try to negotiate a resolution of all outstanding matters between them and, if they settle, shall provide the court with the settlement terms by December 18, 2020, failing which they shall attend a case management teleconference on January 4, 2021 to obtain further directions.
[10] The endorsement noted that the issues to be resolved were the date upon which the Tenant would vacate the rental unit and a resolution of the rent arrears. No resolution of the issues was reached by December 18, 2020.
[11] At the case management conference on January 4, 2021, Corbett J. noted that the Tenant paid the December rent on time and had also paid the rent for January 2021. The Landlord’s motion was scheduled to be heard January 12, 2021. Corbett J. further directed that his order lifting the stay of the Board’s eviction order be held in escrow by the Landlord’s counsel and not enforced pending the decision on the Landlord’s motion subject to any further order or direction by the court.
[12] Section 210 of the Residential Tenancies Act, 2006, SO 2006, c 17 (the “Act”), provides for an appeal from an order of the Board on a question of law only.
[13] Section 134 (3) of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43, provides that in the “proper case” may quash an appeal. In Christo v. Woon, 2017 ONSC 5127(SCDC) at paras. 21-22, this court summarized the three grounds upon which the court will quash an appeal:
- the appeal does not raise a question of law;
- the appeal is manifestly devoid of merit; and
- the appeal is an abuse of the court’s process.
[14] The only evidence of the grounds of appeal are those set out in the Notice of Appeal, to which I’ve referred, and the Tenant’s affidavit filed in response to the motion. The only ground that is relevant to the appeal from the Board’s September 11, 2020 order dismissing his motion on the basis that he failed to appear to support the motion is the Tenant’s allegation that he was not properly served and did not have proper notice of the hearing on September 10, 2020.
[15] Apart from the Tenant’s bald allegation that he was not properly served with notice of the hearing, he has provided no particulars of his allegation. In his affidavit, he alleges he was not served properly by the Landlord’s lawyer. Further, on the one hand he alleges improper service, on the other inadequate notice.
[16] It is the Board that provides notice of the hearing. Section 191 (1) (f) of the Act provides, among other things, that notice is sufficiently given if sent by mail to the last known address where the person resides. Finally, the Board’s order of September 11, 2020, specifically finds that “the Tenant was not present or represented at the hearing although properly served with notice of this hearing by the Board.”
[17] I am satisfied, based on the evidence or lack of evidence before me, that there is no merit to the Tenant’s allegation that he was not properly served with notice of the September 10, 2020 hearing.
[18] Nor is there any merit to the Tenant’s other grounds of appeal where he seeks to impugn the N11 he signed based on allegations of the Landlord’s improper conduct. None of his allegations are relevant to setting aside the September 11, 2020 order. Nor are they sufficient to set aside the N11 agreement which is the basis for terminating his tenancy. To the contrary, the Tenant indicates the N11 was his suggestion to enable him to borrow money from the “rent bank”, which is consistent with the Landlord’s evidence that the N11 was initiated by the Tenant.
[19] Based on the above, therefore, I am satisfied that the Tenant’s appeal is manifestly devoid of merit and should be quashed.
[20] While I am cognizant that the COVID-19 restrictions have been tightening in this province since Christmas, the Tenant has had more than enough time to find new accommodation and vacate the rental premises. He initially agreed to leave by January 31, 2020, almost a year ago. Contrary to his agreement, he has refused to leave. On November 24, 2020, in issuing the order vacating the stay of the Board’s September 11, 2020 order effective December 31, 2020, Corbett J. indicated that gave the Tenant five weeks to find alternative accommodation. He has not done so.
[21] Further, the Landlord has been prejudiced by the Tenant’s failure to pay rent during the period. Arrears remain.
[22] Accordingly, I allow the Landlord’s motion. The Tenant’s appeal for the Board’s September 11, 2020 order is quashed. Notwithstanding the Tenant’s delay in vacating occasioned to date, as he has paid January rent, I am prepared to allow him to the end of the month to find new accommodation. Accordingly, the escrow directed by Corbett J. of his order vacating the stay shall remain in place until January 31, 2021, after which the Landlord may file the eviction order with the sheriff.
[23] The Landlord was successful on his motion and is entitled to costs on a partial indemnity basis. In my view, the costs claimed by the Landlord in his Costs Outline of $3,200 in total ($2,880 in fees and $320 in disbursements) are fair and reasonable given the issues and attendances.
[24] Costs of $3,200 in total payable to the Landlord by the Tenant, forthwith.
L.A. Pattillo J.
Released: January 13, 2021
CITATION: Lara v. Veluz, 2021 ONSC 288
DIVISIONAL COURT FILE NO.: 250/20 DATE: 20210113
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
John Jose Lara Respondent/Appellant
– and –
Bheltor Veluz Moving Party/Respondent
REASONS FOR JUDGMENT
PATTILLO J.
Released: January 13, 2021