CITATION: Holguin v. Skiadopoulos, 2021 ONSC 499

DIVISIONAL COURT FILE NO.: 587-19

DATE: 20210114

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

B E T W E E N:

OCTAVIO HOLGUIN

Applicant

• and –

ATHENA SKIADOPOULOS

Respondent

P R O C E E D I N G S A T M O T I O N

BEFORE THE HONOURABLE JUSTICE D. CORBETT

On January 14, 2021, at Toronto, Ontario

APPEARANCES:

MS. A. WINICKI Counsel for the Respondent

Courtroom #7-8

330 University Avenue

Toronto, Ontario

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Transcript Ordered...................Friday, January 15, 2021

Transcript Completed.................Monday, January 18, 2021

Ordering Party Notified.............Tuesday, January 19, 2021

**(ph) – Indicates preceding word has been spelled phonetically

**[sic] – Indicates preceding word has been reproduced verbatim and is not a transcriptionist error

R E A S O N S F O R J U D G M E N T

JUSTICE D. CORBETT: (Orally)

Good morning Ms. Winicki. We do not seem to have Mr. Holguin or Holgan – is it Holgan or Holguin or?

MS. WINICKI: I think it’s Guin, Holguin.

THE COURT: All right. We do not seem to have Mr. Holguin here. At my direction, the Court Registrar has been speaking with Mr. Holguin on the phone to try to get him connected. Mr. Holguin claims that he is unable to connect to Zoom. I of course do not understand how that could be if he has an operating computer but it is possible. It is possible for somebody with a telephone to connect to Zoom and just be here voice only and I directed the Registrar to provide him with the directions on how to do that and he – as of it is now 10:28, nearly half an hour after the start time – has still not connected.

In terms of the background to this motion, the landlord, by email, at the beginning of November – oh I am sorry, before I go any further, I would ask the Court Reporter please to record what I am saying, if you are not already doing so. This is effectively my decision. I do not need to hear from Ms. Winicki in all of these circumstances. I am just going to repeat what I said before.

This motion was scheduled by Zoom video conference at a case conference in December with a schedule for the delivery of materials. The appointed hour was 10:00 a.m. It is now 10:29 a.m. and the responding party, the tenant, has still not appeared for the motion.

At my direction, at about five minutes after ten, shortly after that time, the Registrar tried to contact the tenant by telephone and successfully did so. She was told by the tenant that he was having difficulty connecting to the Zoom video conference. I do not know what explanation he gave but the Registrar was not able to explain to me what that difficulty could possibly be since it is very easy to connect to Zoom video conferencing if you have a computer that is connected to the internet. But be that as it may, I do not understand what his problem would be there, but it is possible to participate in a Zoom conference, such as this one, by connecting by telephone. One is not able to see anything of course if you connect by telephone, but you can hear everything, and the Registrar provided information to Mr. Holguin about how he could do that. I also note that the Court’s email to all the parties, giving notice of the Zoom video conference, contains information about how to connect both by video conference and by telephone so that Mr. Holguin had that information in writing ahead of time.

Now all of this has to be placed in context. The landlord’s motion was initiated by email to the Divisional Court at the beginning of November. In that email, the landlord expressly indicated that the landlord was seeking an order dismissing the appeal for delay and, as a result of that request from the landlord, a case management teleconference was held I believe it was December the 11^th, 2020. I presided in that teleconference, and at that teleconference I set a schedule for the exchange of materials for this motion and it was made clear to Mr. Holguin that he would have to file materials to explain the delay and he would need to show when he was going to get his appeal heard if he wished to avoid having the appeal dismissed for delay.

In terms of the background of the case, the matter originated in an application by the landlord before the Landlord and Tenant Board to terminate the tenancy, not for nonpayment of rent although there were some rent payment issues, but because of violent misconduct by the tenant at the premises that interfered with the peaceful enjoyment that the landlord required for the business operating on the main floor of the building. The leased premises is an apartment over a licenced bar and the allegation was that the tenant had a pattern of interrupting the peaceful enjoyment of the bar so the bar could operate its business without interference, and in particular that he had initiated violent confrontation either with a staff member or a customer of the bar on a particular occasion. That was the issue before the Landlord and Tenant Board.

The Landlord and Tenant Board had a hearing on that issue and made findings of fact based on the evidence of the witnesses before the Board. As a result, the critical issue, from the Landlord and Tenant Board, was an issue of fact and there are no appeals in this court from the Landlord and Tenant Board on questions of fact. So at the end of the day the prospects for the appeal are extremely weak based on this thumbnail sketch of the issues on appeal from the Landlord and Tenant Board.

There is no evidence before me that the tenant has ordered the transcript, that the tenant has paid for the transcript, that the tenant has obtained the transcript. The tenant has done nothing to advance the appeal, which was commenced more than a year ago in October of 2019.

In all of these circumstances there has been delay and there is continuing delay.

Now in the face of all of this, the court received an email from the tenant on the 12^th of January of 2020[sic] asking that the motion, scheduled for the 14^th of January, be adjourned for some indefinite period of time so that the tenant could obtain legal advice and take steps to respond to the motion.

This is directly contrary to the scheduling order made by this court on the 11^th of December of 2020 and was requested two days before the hearing. This reflected a pattern of delay behaviour that the tenant engaged in before the Landlord and Tenant Board, which is summarized in the summary proceedings in the landlord’s factum before the court today. The tenant has been delaying this matter, now for a period of well over a year, and there is no indication that the tenant has any intention of proceeding with this appeal.

In my view there are two issues before the court. First, the tenant is the beneficiary of a statutory stay of the eviction order of the Landlord and Tenant Board. These statutory stays are not intended to provide a lengthy holiday for the losing party before the Landlord and Tenant Board that they can obtain simply by filing a notice of appeal and then sitting on their appeal for months or years. This is an equitable remedy that the Legislature has provided in landlord and tenant matters to facilitate the capacity of the court to do justice at the end of the appeal, not to provide lengthy periods when lawful orders of the Board will not be enforced. As a consequence to that, any person who obtains the benefit of a statutory stay of the eviction order of the Landlord and Tenant Board has an obligation to move their appeal forward with reasonable speed. If they fail to do that, one remedy that is possible is an order setting aside or striking the stay of the eviction order while permitting the appeal to go ahead on the merits. It is important to distinguish between the stay of the eviction order itself and dismissing the entire appeal because there may well be cases where there are issues that are worthy of the appellate process that will survive an eviction of the tenant from the premises, such as a large amount of contested rent.

In the circumstances of this case, as I understand it, there are not many issues that would be separate from the eviction issue. I am not aware of the current status of the rent, and that is not before me today, but they are separate issues. And in my view, on the facts of this case, given the very lengthy delay, the failure to do anything whatsoever to advance the appeal from October of 2019 to January of 2021, and the failure to file any materials at all on this motion, all taken together is more than ample justification for an order lifting the stay of the eviction order of the Board. It is so ordered.

Second, the appeal itself on its face is extremely weak and the appellant’s conduct demonstrates an intention to delay but no intention to proceed with the appeal. In my view, this is one of those cases where the lengthy delay combined with the apparent weakness of the appeal, just on the face of the notice of appeal and the nature of the order made by the Board below, warrant dismissing the appeal for delay. It is so ordered.

The landlord’s counsel may prepare an order that contains both aspects of the order I am making today. One, lifting the statutory stay and, two, dismissing the appeal.

Ms. Winicki, what is your position on costs?

MS. WINICKI: Your Honour, I did submit a costs outline and I uploaded it to the CaseLines website.

THE COURT: Just give me a moment, let me go and look at it then. While I am not happy with the conduct of the tenant here I am not sure that it attracts anything more than a partial indemnity order of costs ma’am. Why would I order more?

MS. WINICKI: I am agreeable to partial indemnity.

THE COURT: Right. In my view this is worthy of partial indemnity costs for the motion and the appeal, $5,000, all in, payable forthwith. That is inclusive of interest and HST. And, Ms. Winicki, if you draft an order, approval as to form and content is dispensed with, if you send it through I will arrange to have it issued and entered by the court.

Now I note, Ms. Winicki, that the Province has, effective today, issued a new order in respect to the implementation of eviction orders. Nothing I have said here today....

MS. WINICKI: Sorry, Your Honour, you did cut out there. I just heard the Province has.

THE COURT: Okay, I will repeat what I said. You will recall that there was a stay of eviction orders ordered by the Province immediately after the lockdown in March of 2020 as a result of COVID. I understand from the research facility at the court that the province’s current new COVID regulations, which came into effect today, have a similar provision and I am not making any order one way or another in respect to the enforcement of the eviction order. Now you have just frozen, Ms. Winicki, so I am wondering if you are hearing me?

MS. WINICKI: Sorry. Sorry, Your Honour, you cut out again. I heard that there’s a similar – obviously a similar ban on evictions currently in the City.

THE COURT: Yes, which started today, and my order does not address that.

MS. WINICKI: Okay.

THE COURT: Okay. So if there is a stay of the eviction – enforcement of eviction orders this eviction order is stayed subject to the regular COVID protocols and your client will have to wait until that is lifted which, you know, is up to the Province but I am not making an order that it should be enforced during the current stay ordered by the Province.

MS. WINICKI: I understand.

THE COURT: Okay. All right, is there anything else that I need to address today Ms. Winicki? All right, Ms. Winicki’s client I can see and the camera is moving there so I think I am getting a feed from the client but Ms. Winicki is frozen. So I am hopeful the problem technologically is at her end and not mine. The Court Registrar, I can see her, I cannot hear her because she is muted.

CLERK OF THE COURT: No, I think it’s the Wi-Fi at their specific locations.

THE COURT: At counsel’s location?

CLERK OF THE COURT: Yes.

THE COURT: Yes, I think it is too. There she goes. Oh she is back. Ms. Winicki, I was asking whether there was anything further for today?

MS. WINICKI: No, Your Honour.

THE COURT: All right. All right, thank you. This hearing is adjourned. Order to go. Court Reporter, please prepare a transcript of the reasons that I gave orally and I will have those formalized through the court office and they will be reported on, but the order is effective today and, Ms. Winicki, you may draft up the order accordingly.

MS. WINICKI: Thank you, I will do so, Your Honour.

THE COURT: All right. Thank you all very much. Thank you Madam Registrar, Madam or Mister Court Reporter, not sure which it is.

CLERK OF THE COURT: Mister. All right, have a good day.

THE COURT: All right, okay, thank you, this hearing is adjourned.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, we Randa Zarifeh , certify that

(Please print name of authorized person(s))

this document is a true and accurate transcript of the recording of Octavio Holguin

v. Athena Skiadopoulos in the Superior Court of Justice ,

(Case name) (Name of Court)

held at 330 University Ave., Toronto, Ontario taken from Recording No.

(Court address)

4899-330U-7-8-20210114-084901-10-CORBETD.dcr, which has been certified in

Form 1.

January 18, 2021 . RZarifeh .

(Date) (Signature of authorized person(s))