Court File and Parties
CITATION: Martin v. Macmillan, 2021 ONSC 4559
DIVISIONAL COURT FILE NO.: 217/21
DATE: 20210625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT J.
B E T W E E N:
ANDREW MARTIN
Mr Martin, self-represented
Tenant / Appellant
- and -
DOUG MACMILLAN
Mr Macmillan, self-represented
Landlord / Respondent
Brian Blumenthal and Katia Snukal,
For the Landlord and Tenant Board
In Chambers, In Writing
ENDORSEMENT
D.L. Corbett J.:
[1] This endorsement summarizes the history and current directions from this court in this appeal from the Landlord and Tenant Board (“LTB” or the “Board”).
[2] Mr Martin appealed to this court from the LTB and obtained a statutory stay of the Board’s eviction order pending his appeal.
[3] A case management teleconference was held with the court on March 23, 2021, following which the following directions were sent to the parties by email:
The court confirms the case management teleconference held on March 23, 2021.
Mr Martin - in person (tenant)
Mr MacMillan - in person (landlord)
Brian Blumenthal - LTB
There are two decisions underpinning the eviction order - unpaid arrears of about $1200 from 2019 and a landlord's personal use application.
Ongoing rent is being paid directly to the landlord from Mr Martin's social benefits payor, so there is no issue of accumulating arrears.
Mr MacMillan wishes to move to quash the appeal. He states that only one of the bases for eviction is challenged in the appeal and so a basis for the eviction order remains unchallenged. He also notes that no principled challenge is made to the obligation to pay the arrears, and that these arrears have now been outstanding for a long time.
Mr MacMillan shall serve his motion materials for the quash motion by March 30, 2021. Mr Martin shall serve any responding materials on which he relies in respect to the motion to quash by April 14, 2021. The parties shall provide their materials to the court by uploading them to CaseLines by April 16, 2021. The motion to quash shall be heard in person, at the Barrie courthouse, on April 23, 2021, for an estimated 60 minutes (30 minutes each). The parties shall confirm the time of commencement of the motion with the Registrar in Barrie on or after April 16, 2021. The LTB takes no position on the stay motion and will be filing no materials and will not be appearing at that motion. The parties have been told that their motion materials should include evidence upon which they rely (in the form of an affidavit - which affidavit may be sworn or affirmed at the hearing of the motion), a written argument or factum, and, in the case of the landlord, a notice of motion setting out the relief sought and the legal basis for that relief.
Mr Martin has requested recordings of the LTB proceedings to arrange for preparation of transcripts for the underlying appeal. If he has not received the recordings from the LTB by April 9, 2021, he shall so advise counsel for the LTB… to request counsel's assistance in obtaining the transcripts in a timely way. It is presumed that the recordings will be provided to Mr Martin by April 16, 2021, and that he will arrange for the transcripts to be prepared and provided to him by May 7, 2021.
Mr Martin shall serve his appeal materials by June 4, 2021. Mr MacMillan shall serve his responding materials by July 9, 2021. The LTB shall serve its appeal materials by July 30, 2021.
The parties shall provide their appeal materials to the court by July 30, 2021 by uploading them to CaseLines.
The parties are directed to the court's Notice to Profession dated February 18, 2021, found on the court's web site. The parties are asked to follow the Notice in respect to (a) materials uploaded to CaseLines; (b) "filing" materials with the court; and (c) payment of court fees. In respect to court fees, if a party is seeking a fee waiver, that party shall so request from the Registrar of the Divisional Court by email.
The appeal shall be heard in person in Barrie before a single judge of the Divisional Court on a date in August 2021 to be fixed by this court and provided to the parties by April 23, 2021. If necessary, the parties may ask the motions judge presiding on the motion to quash on April 23, 2021 to vary this schedule as may be required.
It is noted that Mr Martin has a hearing disability that requires accommodation in the courtroom by use of audio enhancement technology. The Registrar in Barrie is asked to facilitate arranging for this equipment, and may wish to consult with Divisional Court staff in Toronto if there are any issues respecting the equipment that is required.
[4] The motion to quash was scheduled for hearing in person at the courthouse in Barrie before Regional Senior Justice Edwards, in Barrie, on April 23, 2021.
[5] By direction from Chief Justice Morawetz on April 21, 2021, all non-emergency in-person hearings were cancelled temporarily for reasons related to COVID-19. As a result, the in-person hearing scheduled before Regional Senior Justice Edwards on April 23, 2021 was adjourned by my direction, and the parties were so advised on April 22, 2021.
[6] On May 31, 2021, Mr Martin advised the court that he received transcripts on May 21, 2021, and he requested additional time to serve his appeal materials. By my direction of June 2, 2021, the deadlines for appeal materials for both sides were extended by fourteen days.
[7] On June 3, 2021, at about 3 pm, Mr Martin emailed the court as follows:
I have an emergency situation and would like to speak with the Honourable Justice Corbett.
I have had the landlord drag all my possessions into the street.
The OPP are here and they need confirmation of the stay of proceedings.
[8] On June 4, 2021, around 10 am, at my direction, staff emailed a copy of the court’s stay order to the parties. At about 12:30 pm, Mr Martin emailed the court further, as follows:
Good morning.
Thank you for the reply and the attached document.
I am sorry for sending such a frantic message yesterday but if I describe what has happened to me I am sure you will understand.
I was asked by a friend if I wished to go out yesterday to do some errands with him. We were gone for approximately 2 hours when I got a call from my neighbour… to come home immediately.
My friend (whose name is… and who is a witness to all this) and I came back immediately to find 4 OPP cars and my 2003 Range Rover in the street at the end of the long farm style driveway where I live at 151 Simcoe St in Orillia.
It was explained to me by the Police that Mr. MacMillan was evicting me on the basis of having multiple eviction orders.
The police, of course took Mr. MacMillan at his word and were there to make sure that nobody got hurt.
It should be noted that Mr. MacMillan came from B.C. to do this.
I explained to the Police that this was unwarranted and with the permission of the Police began to make a series of calls and emails from the side of the road.
My first thought was that I KNOW that there is a Stay in place and I was sure that Judge Corbett could explain that he has been dealing with the case as it is under appeal. However, I didn't really expect to get in touch with the Judge as I am sure he is busy.
My next thought was to call the Sheriff's Office in Barrie that enforces in my area and ask if there were any active eviction papers. The staff member confirmed to the police on my speakerphone that THERE WERE NOT.
That raised the eyebrows of the Police. I did call the OPP from the side of the road at their 888 number and reported the brake and enter but the Police they were unwilling to allow me to return to my residence or charge Mr. MacMillan with Break and Enter. I am repulsed to think that he has broken quarantine to handle all my possessions.
Mr. MacMillan also had the driveway blocked by having his vehicle turned sideways in it and stated to the Police that he would not allow me into my lawful residence as he yelled obscenities at me from the driveway.
I was given a number for the housing authority whom I am pursuing but nothing to report as yet.
In summery, I have been unlawfully evicted from my home. I am essentially homeless. Mr. MacMillan has knowingly lied to the police and apparently threatened physical harm if I return as the police were adamant in not letting me go to my residence.
I am in a hotel at the moment. I arranged to have my vehicle towed away by CAA as I was advised that dragging a 4x4 like it had been could have damaged the vehicle and as it was towed in unsafe manner.
The vehicle was packed to overflowing with my possessions which had been essentially ransacked and I have not been able to account for many items including my prescribed medications.
Several of my possessions appear to be not accounted for including my bed, my TV, my groceries etc.
As you might imagine I am quite distraught and my life essentials are lost all because Mr. MacMillan continues to refuse to abide by the rulings of the Divisional Court and the Honourable Justice Corbett.
I would like to ask for the court's help and work with the court to correct these injustices.
Your help in this matter would be greatly appreciated.
Thank you,
[9] The court immediately responded to Mr Martin’s email as follows:
Please advise the parties as follows:
This court cannot address the issue of an illegal eviction at first instance.
This is a matter that Mr Martin may address on an urgent basis with the Landlord and Tenant Board. He may also wish to consult a lawyer at a legal aid clinic or seek assistance from a lawyer through Pro Bono Ontario.
Divisional Court staff are requested to provide contact information to Mr Martin for Pro Bono Ontario.
Mr Martin may also provide a copy of the stay order from this court to the Ontario Provincial Police to seek their assistance in re-entering the premises.
[10] The court received a further email from Mr Martin on June 7, 2021, as follows:
I wanted to follow up this morning and say thank you for the suggestions outlined below. I am in the midst of pursuing them but nothing much changed over the weekend. I continue to be out of my residence.
I have forwarded your comments, and the quotes from the Direction, to the OPP, the Rental Housing Enforcement Unit and the Sheriff's Office in Barrie.
I have been advised by the Sheriff in Barrie (who is responsible for all evictions or reinstatement in my area) that he would be willing to act to put me back in my residence if he had a Court Order. He would then contact the OPP and ask their assistance in enforcement of the Order. The Sheriff confirmed that his office was not involved in my eviction (which we already knew) and so it was inherently illegal.
From the perspective of the Divisional Court, we know that there is a Stay in place pending an upcoming hearing. Therefore, no eviction can occur. Also, we know that the case has past the point of a Case Conference in which the Honourable Justice Corbett established a timeline for the hearing. As a lay person, it is my belief that conducting an eviction while the case is under the management of the Divisional Court would be an act of Contempt of Court as well as inherently illegal.
As such, in terms of a Remedy to the recent illegal actions of Mr. MacMillan, I would like to ask if I may be granted an Order from the Divisional Court to allow me to be reinstated in my residence. I continue to pay rent for the residence, many of my possessions are still at the residence and don't understand any reason that I should not be there.
I will then advance the Order to the Sheriff (although I understand there is an internal communication system between the two parties) and arrange with the Sheriff a time and date to execute the Order.
If this seems all good and proper to the Divisional Court, I await your response.
Thank you,
[11] On June 8, 2021, at my direction, the parties were directed as follows by email:
Mr Martin is to summarize the events he has described to the court in recent emails and his request for an order to be reinstated to the property in an email to the court, copied to Mr MacMillan, by June 9, 2021. Mr Macmillan is to set out his response in writing, in an email to the court, copied to Mr Martin, by June 11, 2021.
There shall be a case management teleconference at 1 pm, June 11, 2021, at which the court will give further directions, which could include an order reinstating Mr Martin to the property.
[12] Both parties responded to this direction. I do not set out those responses here, for reasons set out later in this endorsement. I then directed staff to advise the parties as follows shortly before the start of the case management teleconference on June 11, 2021:
Justice Corbett directs me to advise you as follows:
The court appreciates the efforts both parties have made to put their versions of events to the court.
On the basis of Mr MacMillan's email, the eviction was illegal and contrary to this court's stay of enforcement of the LTB orders. While the LTB has original jurisdiction over illegal evictions, this court does have jurisdiction over violations of stay orders from this court.
Mr MacMillan should try to make arrangements prior to the case management conference at 1:00 pm this afternoon to restore Mr Martin to the premises.
The eviction has added to the issues to be decided by this court on appeal and the court is considering adjourning the appeal hearing scheduled before a single judge in August to a panel hearing before three judges on an available date in the fall. The parties can address this issue at the case management conference at 1 pm.
[13] I conducted a case management teleconference with the parties and counsel for the LTB on June 11, 2021, at which I learned that the landlord takes the position that he has re-leased the premises to new tenants who are in occupation of the rental premises. He advised that he could not restore Mr Martin to the rental premises given these circumstances.
[14] Following the case management teleconference, this court directed as follows:
Justice Corbett directs me to advise you as follows:
The court confirms the case management teleconference held on June 11, 2021.
- The schedule for the appeal is adjusted as follows:
(a) Mr Martin's appeal materials shall all be served by June 25, 2021.
(b) Mr MacMillan's responding materials shall all be served by July 30, 2021.
(c) The LTB's materials (if it decides to participate) shall be served by August 13, 2021.
(d) The hearing of the appeal is tentatively scheduled to be conducted in person, at the Barrie courthouse, on August 27, 2021, before a single judge of the Divisional Court. Equipment to accommodate Mr Martin's hearing disability will be required for the hearing. The court will confirm this date with the parties shortly.
Mr MacMillan has forcibly evicted Mr Martin from the rental premises. It appears to be uncontested that this eviction was a breach of the Divisional Court's order staying enforcement of the eviction orders of the Landlord and Tenant Board. There is no issue that Mr MacMillan had notice of the stay order - it was discussed with this court in prior case management conferences. At the case management teleconference, the court explored rectifying Mr MacMillan's apparently illegal eviction of Mr Martin and leaving it to the appeal court to address any damages arising from the eviction. Mr MacMillan advised the court that he has re-let the premises and that new tenants are now in possession.
The court advised Mr MacMillan that, in light of this information, the persons currently in possession of the premises should be given notice that this court is considering making an order restoring Mr Martin to the premises. Mr MacMillan advised that the new occupants of the premises are… and…. There shall be a further teleconference with this court on Monday June 21, 2021, at 10 am, to consider whether this court should grant an order requiring the current occupants to vacate the premises and ordering Mr MacMillan to restore Mr Martin to the premises. Mr MacMillan shall provide notice of this hearing to… to give them an opportunity to attend the teleconference on June 21, 2021. All interested parties are given notice that the court may make an order restoring Mr Martin to the premises on June 21, 2021, or may make another scheduling order in that respect, depending on all of the circumstances.
The court advised Mr MacMillan that, since he was taking the position today that his actions have changed circumstances to a point where Mr MacMillan's breach of this court's stay order cannot be remedied by restoring Mr Martin to the leased premises, this court may consider citing Mr MacMillan for contempt of court. Mr MacMillan is ordered to appear before this court on June 16, 2021, 3:00 pm, by ZOOM videoconference, to schedule a contempt hearing. Mr MacMillan is encouraged to seek legal counsel in respect to the contempt issue, and if Mr MacMillan engages counsel and that counsel is not available for the appearance on June 16th, Mr MacMillan should be in a position to advise the court on June 16th of a date and time at which counsel may be available to appear on Mr MacMillan's behalf to schedule the contempt hearing. Mr MacMillan has been put on notice that a sanction that could be imposed if he is found in contempt of court is a period of incarceration. This is in addition to a potential award of money to Mr Martin for damages caused to him by the apparently unlawful eviction.
Counsel for the Landlord and Tenant Board confirmed the Board's position that this court has jurisdiction over an eviction carried out in violation of a stay of eviction ordered by this court.
[15] On June 16, 2021, Mr MacMillan attended before me by teleconference, as directed on June 11, 2021, in connection with the contempt issue. He advised that he had tried to retain counsel but had not had enough time to do that. He asked for thirty days to consult and retain counsel. I granted that request and ordered Mr MacMillan to appear before me by teleconference on July 16, 2021, at 10:00 am, to confirm a date for the contempt hearing. Mr Martin is permitted to attend the teleconference on July 16, 2021 but is not required to do so.
[16] On June 21, 2021, the court conducted a further case management teleconference in respect to the question of whether the court should restore Mr Martin to the rental premises. One of the persons identified as a new occupant of the premises was present on the call, as was Mr MacMillan, Mr Martin, and counsel for the Landlord and Tenant Board. The balance of this endorsement sets out this court’s directions flowing from the case management teleconference on June 21, 2021.
Reasons and Further Directions
[17] The Residential Tenancies Act provides for an automatic stay pending appeal to this court of an eviction order of the LTB. Mr MacMillan was aware that Mr Martin had obtained a stay order; that issue was discussed multiple times during case management conferences with this court.
[18] On the basis of Mr Martin’s account of events, it appears clear that Mr MacMillan’s actions in evicting Mr Martin were both unlawful (as a contravention of the Residential Tenancies Act) and a breach of the stay order of this court.
[19] When circumstances such as these arise, this court tries to restore a reasonable state of affairs as quickly as possible, including restoring the tenant to the premises. This court was unable to achieve that result through the informal case management process.
[20] The LTB has taken the position with this court that the court has jurisdiction over the parties and to address a breach of this court’s stay order, but that this jurisdiction does not extend to making an order removing new tenants from premises in order to restore a prior tenant to his home. The Board takes the position, therefore, that while it may be open to this court to restore a tenant to his home if it is still vacant, the court may not do so if it would be necessary to displace another tenant in the process: counsel argues that exclusive jurisdiction to do this lies in the LTB.
[21] An emergency hearing can be scheduled before the LTB to address this issue if the tenant initiates that process. LTB counsel described the process to be followed for Mr Martin during the case management conference; it is for Mr Martin to decide whether he will avail himself of that process. If he does so and needs assistance to get that hearing expedited, he may follow up further with counsel for the Board by email.
[22] This court confirms that the appeal itself shall be heard by a single judge of the Divisional Court, in person, at the Barrie courthouse, on Friday August 27, 2021, commencing at 10:00 am. Court staff are alerted that Mr Martin will require accommodation for his hearing disability at this hearing.
[23] This court directs that Mr MacMillan shall appear before the court on August 27, 2021 to answer to allegations of contempt of court, on the basis described above. Mr MacMillan is put on notice that if he is found in contempt of court, he could be liable to punishment including (a) a period of incarceration; (b) a fine, payable in the discretion of the presiding judge, in whole or in part, to Mr Martin, in default of which Mr MacMillan be incarcerated; and/or (c) a restitution order in favour of Mr Martin. Mr MacMillan is entitled to be represented by counsel at the hearing. The contempt proceeding is a quasi-criminal hearing, and the contempt issue must be proved beyond a reasonable doubt.
[24] During the course of the case management process, this court compelled Mr MacMillan to provide his version of events to the court, and discussions were held between the court and the parties during which Mr MacMillan could fairly have felt compelled to speak. None of Mr MacMillan’s statements to the court after Mr Martin was removed from the rental unit may be used against Mr MacMillan in the contempt proceedings. I will not be hearing the contempt proceedings on the merits. This direction does not preclude me from continuing to case manage the contempt proceedings.
[25] Mr Martin is at liberty to seek an order from the court on August 27, 2021 restoring him to the rental premises. He should understand, however, that this court has not ruled on the jurisdictional issue raised by the Board respecting this issue. He should also understand that if he pursues such a remedy on August 27, 2021, it will have to be on the basis of evidence provided to the court and on notice to persons who could be affected by such an order (including the new occupants of the premises and Mr MacMillan.
D.L. Corbett J.
Released: June 25, 2021
DIVISIONAL COURT FILE NO.: 217/21
DATE: 20210625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
ANDREW MARTIN
Tenant / Appellant
– and –
DOUG MACMILLAN
Landlord / Respondent
ENDORSEMENT
D.L. Corbett J.
Released: June 25, 2021