Court File and Parties

CITATION: Margulis v. E. Manson Investment Limited, 2021 ONSC 377

COURT FILE NO.: 034/20

DATE: 20210115

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Margulis v. E. Manson Investment Limited

COUNSEL: Mr Margulis, self-represented appellant / tenant

Douglas Levitt, for the respondent / landlord

BEFORE: D.L. Corbett J.

DATE: January 15, 2021

CASE MANAGEMENT ENDORSEMENT

D.L. Corbett J.

[1] This endorsement confirms a case management teleconference held January 15, 2021.

[2] The tenant has not paid any rent since December 2018, so arrears have accrued for two years. The tenant takes the position that there are no rent arrears because the unit is not habitable. He says that he has not, in fact, been living in the unit for two years. The tenant did not obtain an order from the Landlord and Tenant Board for abatement of rent from the landlord.

[3] By direction made December 11, 2020 at a case management teleconference, set out in writing by endorsement dated December 18, 2020, this court directed as follows:

(a) That the landlord may re-enter the unit and take possession of it as of 11:59 pm, December 28, 2020;

(b) That tenant may remove his possessions from the unit at any point up to 11:59 pm, on December 28, 2020;

(c) That the tenant be prohibited from being at or returning to the premises from and after 12:01 am, December 29, 2020;

(d) That if any tenant’s possessions remain in the premises as of 12:01 am, December 29, 2020, the landlord shall deal with that property in a manner consistent with landlord’s obligations respecting tenant’s property upon eviction under the Residential Tenancies Act;

(e) That the landlord is ordered not to re-lease the premises pending further order of this court. This order does not preclude the landlord from cleaning and making any repairs it wishes to make to the premises;

(f) That the parties appear at a further case management teleconference with the court on January 15, 2021, at 11:00 am, to address:

(i) A schedule for completion of all steps required for hearing of the appeal on the merits;

(ii) To consider any terms that ought to be imposed pending the appeal including:

(1) Whether the landlord should be precluded from re-leasing the premises pending hearing of the appeal;

(2) Whether the tenant should be required to pay ongoing rent or to make any payments on account of arrears, in return for an order precluding the landlord from re-leasing the premises pending determination of the appeal;

(iii) To address any issues respecting tenant’s property removed from the unit by the landlord in accordance with this order, including the costs of removal the costs of storage, or any arrangements required for ongoing storage of this property;

(iv) Any other issues identified by the parties (the parties are asked to advise the court of any other issues they have for this teleconference by email by January 13, 2021).

[4] The parties did not advise the court of “any other issues” to be discussed at the case management conference by January 13, 2021.

[5] On January 13, 2021, Mr Margulis requested an adjournment of the case management teleconference until February on the basis that he is ill. He provided a doctor’s note to support his request. This court denied his request by case management direction provided to the parties by email on January 14, 2021, as follows:

The note from Mr Margulis' doctor does not say that he is unable to participate in a telephone conference with the court. It provides no explanation of the nature of Mr Margulis' medical infirmity or why it would prevent him from participating in a brief teleconference on January 15, 2021. The court notes that Mr Margulis obtained an adjournment of the first case management conference after he advised staff that he was ill. He sought adjournment of the second date for that conference again because he was ill. Mr Margulis attended that teleconference and participated in it. Nothing about his participation suggested that he was anything other than fit to participate in the teleconference. The court declines to adjourn the teleconference on the basis of the doctor's note provided by Mr Margulis.

The teleconference will proceed on January 15th as scheduled. If Mr Margulis does not attend, the teleconference will proceed in his absence.

[6] Mr Margulis then sent a further email on January 14, 2021, providing an updated medical certificate stating that he has a “cough and a fever” and will be “unable to work”. The illness described is not a sufficient basis to adjourn a case management teleconference. I received the email shortly before the scheduled case management teleconference and directed staff to advise Mr Margulis immediately by email that the teleconference would proceed as scheduled.

[7] Mr Margulis did not attend the teleconference. At about 11:05 am, I directed staff to telephone Mr Margulis to advise him that he should call in because the teleconference was proceeding. He advised staff that he was feeling too ill and would not be calling in.

[8] It is not for Mr Margulis to grant himself an adjournment. Nor is it for his doctor to grant him an adjournment. In his communication with the court after the adjournment request was denied, Mr Margulis wrote as follows:

I asked the Family Clinic in which I'm a patient for many years, and was told they usually do not disclose illness particulars in Sick Leave Certificates to protect patient's privacy and comply with medical documentation requirements. They can do it with the patient's permission, and on my request they sent me the updated Medical Certificate, which clarifies the illness details (see attached).

Note, that the court is expected to ask parties for availability dates before scheduling conferences or hearings, which it did not in this case. As well, the Case Management Endorsement of Dec 18, 2020 stated at para 9(f)(iv) that the parties may advice the court of any issues related to the Teleconference by Jan 13, 2021, which I did by email of Jan. 13, 2021. This was also my first request to reschedule, which is usually granted in similar civil matters.

Despite my Appeal from the LTB orders is in acute public safety interest, I feel treated grossly unfairly and with extreme prejudice by a party who is supposed to be impartial. I request again to reschedule the Teleconference at the beginning of February 2021.

Mr Margulis’ characterization of past events is not accurate. This conference date was set with the parties on December 11, 2020. It was confirmed with them in writing on December 18, 2021. It is not the case that “first requests to reschedule” are “usually granted” for case management teleconferences. Teleconferences are not time intensive steps and do not require great preparation. They are essential to the efficient process of the court. Since the suspension of ordinary court operations because of COVID, back in March 2020, the court has conducted hundreds of case management teleconferences. Only a handful have been adjourned beforehand. Parties are expected to attend teleconferences scheduled by the court, and may not decide, for themselves, that they need not do so.

[9] Further, this case has been characterized by extraordinary delay by Mr Margulis. His appeal is in respect to decisions rendered by the Landlord and Tenant Board in late 2019. He is the appellant. He has not obtained and filed transcripts; indeed, on the record before the court, he has done nothing at all to advance his appeal since he started it. It would be open to the court to ask Mr Margulis to show cause why the appeal ought not be dismissed for delay, without further ado, but he claims to have a sincere interest in pursuing matters he characterizes as having important public interest dimensions. The court will give him a chance to pursue his appeal, but promptly, so that this matter may be heard on the merits within a reasonable period of time.

[10] The court began the teleconference with counsel for the landlord and counsel for the Landlord and Tenant Board at about 11:10 am. The business of the teleconference required 10-15 minutes, in Mr Margulis’ absence. The court estimates the conference would have required an additional ten minutes if Mr Margulis had attended and participated constructively.

(i) Schedule for the Appeal

[11] Mr Margulis is the appellant. It is his responsibility to ready his appeal for a hearing. The first step, still, is for Mr Margulis to obtain a recording of the hearing(s) below and to obtain a transcript for use at the appeal. On the information before me at the teleconference, Mr Margulis has not done this yet. He shall do this forthwith, failing which the court shall dismiss his appeal. In particular:

(a) By January 22, 2021, Mr Margulis shall contact counsel for the Landlord and Tenant Board at the following email address: Linda.Naidoo@ontario.ca to obtain the recording(s) of the hearing(s) that are the subject matter of the appeal. In this contact, Mr Margulis shall identify the date(s), location(s), and presiding adjudicator(s) of the LTB for the hearings that are the subject matter of this appeal, and request Ms Naidoo to facilitate obtaining the recordings so that he may obtain transcripts. Ms Naidoo shall advise Mr Margulis of the fees, if any, charged by the Landlord and Tenant Board to provide these recordings to him. Mr Margulis shall pay these fees within one week of being so advised by Ms Naidoo of the amount of the fees.

(b) By January 22, 2021, Mr Margulis shall engage a transcriptionist to prepare transcripts from the recording(s) of the Board proceedings and provide a copy of this endorsement to the transcriptionist, and shall confirm to the court and the other parties that he has done so, by email, also by January 22, 2021. He shall also direct the transcriptionist to confirm to the court and to the parties that the transcriptionist has been engaged by Mr Margulis to prepare the transcripts.

(c) The LTB, by its counsel, by January 29, 2021, shall confirm to the court and the other parties, by email, (i) whether Mr Margulis contacted Ms Naidoo by January 22, 2021, (ii) when the recordings will be available to provide to Mr Margulis, (iii) the fees, if any, to be charged to Mr Margulis for the recording(s), and (iv) any other information pertinent to the process of obtaining recordings for transcript preparation in this case.

(d) Once the transcriptionist has received the recording(s), the transcriptionist shall provide an email to the court and the parties advising of the date by which the transcripts will be completed.

(e) If Mr Margulis fails to take the required steps to obtain the transcripts required for this appeal, and if he is unable to provide a reasonable explanation for his non-compliance, then the court may dismiss his appeal.

(f) Once the court is satisfied of the date by which the transcripts will be prepared, the court will give further directions setting dates by which the parties must complete their appeal materials.

(ii) Terms Pending Appeal

[12] Mr Margulis has not paid rent since December 2018 and has not obtained an order from the Landlord and Tenant Board permitting him to abate his rent. The landlord reports that it is currently out nearly $21,000 in rent as a result.

[13] On December 11, 2020, I ordered that the landlord could re-enter the premises and exclude Mr Margulis, and that it could thereafter clean and repair the premises if it wished. I ordered that the landlord could not, however, re-lease the premises, thus preserving Mr Margulis’ ability to continue with his tenancy (and re-enter the premises) if he is successful on his appeal, subject to further court order to be made at this case management conference, including any terms the court might order.

[14] Mr Margulis has taken the position that the premises ought not be re-leased, and that the landlord ought not be permitted to re-enter because of environmental contamination of the unit, evidence of which will be lost if the landlord re-enters. That is not a basis on which Mr Margulis may preserve his tenancy pending his appeal. He has had years to obtain evidence of his claims. He has no legal basis to stop paying his rent while simultaneously preserving his tenancy. It is unfair to the landlord that the premises should be tied up, with no rent paid, for years on end.

[15] If Mr Margulis wishes to preserve the possibility of re-establishing his tenancy, then he must pay an amount equal to ongoing rent and some payments on account of arrears. The landlord advises me that monthly rent would currently be $827.71 per month, and as noted above, that aggregate arrears are now nearly $21,000.

[16] I exercise my discretion not to require Mr Margulis to pay or secure 100% of the alleged arrears as the price of maintaining a partial stay of enforcement of the Landlord and Tenant Board’s eviction order. First, he is not in the premises now and will likely have rent obligations to live elsewhere. Second, he has advised the court that he is on Ontario Works and is frequently ill. It may well be that Mr Margulis is unable to pay anything at all, but it would be unfair to the landlord to tie up the premises pending this appeal if no payments are made at all in the interim.

[17] Balancing the interests at stake here, I order as follows;

(a) Mr Margulis shall pay $1500 to the landlord’s solicitors in trust, in cash or certified funds, by 4:00 pm on January 22, 2021; and

(b) Mr Margulis shall pay $1500 per month to the landlord’s solicitors in trust, by cash or certified funds, on or before the 15th day of every month, pending final determination of the appeal or further order of the court; and

(c) These payments are without prejudice to the positions of the parties on the appeal or before the Landlord and Tenant Board as to the state of accounts between them and shall be taken into account as payments made by the tenant in respect to any obligations he has to the landlord in any final accounting of those obligations.

[18] If Mr Margulis fails to make any of the payments set out above, the Landlord may ask this court to immediately terminate the stay of enforcement of the eviction order of the Landlord and Tenant Board and to permit the landlord to lease the premises to another tenant. Such a request shall be supported by a statement from counsel attesting to the truth of the facts said to support the requested order, set out in an email to the court copied to the other parties, accompanied by a draft order. Such an order will not have the effect of terminating the underlying appeal.

(iii) Tenant’s Personal Property

[19] Counsel for the landlord advised that the landlord has re-entered the premises, with the assistance of the Sheriff. Counsel advised that Mr Margulis attended at the property several times to obtain his personal property. Since Mr Margulis did not attend this teleconference and did not advise the court in advance of the teleconference of any outstanding issues related to his personal property, there do not appear to be any further issues respecting this topic.

(iv) Other Issues

[20] Counsel did not identify any other issues for the teleconference. The court notes that Mr Margulis advised in December that he intended to seek a review of this court’s directions given orally on December 11, 2020, and set out in writing in the court’s endorsement of December 18, 2020. It may be that such a review is now largely moot, but if Mr Margulis decides to pursue that review, he shall serve his materials for the review by February 12, 2021. If he does not do that, his request for a review will be deemed to have been abandoned without costs. If Mr Margulis does serve materials for a review, then that review process shall be case managed thereafter by another judge of the Divisional Court. I will continue to case manage this appeal.

[21] The court’s order is effective from the moment it was stated on January 15, 2021. This written endorsement confirms the court’s order and is effective from the time that an unsigned copy is sent to the parties by email; a signed copy will be provided to the parties in due course.

D.L. Corbett J.

Date: January 15, 2021