Court File and Parties

CITATION: Mitrou v. Singh, 2021 ONSC 5324

DIVISIONAL COURT FILE NO.: 610/21

DATE: 2021-08-03

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Georgia Mitrou, Moving Party

AND: Kanika Singh, Responding Party

BEFORE: Favreau J.

COUNSEL: Georgia Mitrou, the Moving Party/Tenant, representing herself Kanika Singh, the Responding Party/Landlord, representing herself with some assistance from her husband, her father-in-law, and Shawn Hunt (a paralegal who acted at the Landlord and Tenant Board)

HEARD at Toronto (by telephone conference): July 30, 2021

ENDORSEMENT

Introduction

[1] The moving party, Georgia Mitrou, is a tenant in a house owned by Kanika Singh.

[2] On March 22, 2021, the Landlord and Tenant Board made an order terminating the tenancy and ordered Ms. Mitrou to pay $25,000 in outstanding rent.

[3] Ms. Mitrou now brings a motion to extend the time for appealing the Board’s decision. For the reasons below, the motion is dismissed.

Background

Tenancy and Board’s order

[4] Ms. Mitrou has been a tenant in the rental property for over twenty years.

[5] Ms. Singh’s father-in-law bought the property approximately three years ago from Ms. Mitrou’s previous landlord. At that time, the parties entered into a one year lease. The rent is currently $6,500 per month.

[6] The Board’s March 22, 2021 order arises from a series of earlier orders made by the Board.

[7] On May 1, 2019, the Board made a consent order that required Ms. Mitrou to pay $25,000 towards arrears. The order stated that the amount was less than the actual amount owed by Ms. Mitrou but that it represented the maximum monetary jurisdiction of the Board. The order also required Ms. Mitrou to pay her ongoing monthly rent of $6500 on the first business day of each month. Finally, the order provided that, if Ms. Mitrou failed to make any payments under the order, “the Landlord may, without notice to the Tenant apply to the Board … for an order terminating the tenancy and evicting the Tenant”.

[8] The Landlord subsequently applied for an order terminating the tenancy pursuant to the May 1, 2019 order. It appears that the Board granted the order but then set it aside on consent by order dated July 12, 2019. The July 12, 2021 order purported to “cancel” the May 1, 2019 order and to stay the order obtained by the Landlord following the May 1, 2019 order until August 19, 2019.

[9] The March 22, 2021 order is titled “Review Order”. The order states that, on February 26, 2020, the Board initiated a review of the July 12, 2019 order because the order “may have contained a serious error”. The review was conducted by videoconference. Ms. Mitrou and a representative for the Landlord participated in the hearing. On March 22, 2021, the Board released its review order making the following determinations:

1. Order CEL-85872-19 issued on July 12, 2019 cancelled order CEL-84477-19. At the hearing the parties consented to delay the lifting of the stay until August 12, 2021. I find this is a serious error as the order should not have been cancelled. The review is granted.

2. The Tenant has not paid rent in 15 months. The lawful monthly rent is $6,500.00. The Tenant owes the Landlord $97,500.00 in arrears.

3. The application that gave rise to this review hearing was due to a breach of order CEL-84477-19 issued on May 1, 2019 that required the Tenant to pay $25,000.

4. The Landlord applied to have the tenancy terminated and for $25,000.00 compensation.

5. The Landlord file this application with the Board in July 2019. The Tenant has lived in the unit without paying any rent for 15 months and the prejudice to the Landlord far exceeds any relief requested by the Tenant. Under the circumstances, the tenancy should be terminated and the arrears ordered against the Tenant.

[10] The Board went on to order that the tenancy was terminated as of March 31, 2021, and that Ms. Mitrou was required to pay $25,000.00 to the Landlord.

Motion to extend the time for appealing

[11] On July 26, 2021, Ms. Mitrou contacted the Divisional Court for the purpose of bringing an urgent motion to extend the time to appeal the Board’s March 22, 2021 Review Order. She indicated that the motion was urgent because she has received a notice from the Sheriff’s Office that the eviction will be enforced on August 5, 2021. Ms. Mitrou’s notice of motion asked that the motion to extend the deadline for appealing proceed in writing. Her email to the Court included an affidavit in which she states that she has been ill, including with COVID, and that she has had difficulty retaining a lawyer.

[12] Following receipt of Ms. Mitrou’s request, the Court convened an urgent telephone conference on July 30, 2021. During the case conference, I first explored the possibility of helping the parties resolve the motion to extend. The Landlord made clear that she had no interest in the agreeing to an extension of time or resolving the matter. I then heard arguments from the parties on the motion and advised that I would release a decision on August 3, 2021.

Analysis

[13] The urgency of this matter arises from the imminent eviction. In the normal course, an appeal from an order made by the Board must be brought within 30 days. When an appeal is brought within 30 days, the appellant is entitled to an automatic stay of the eviction until the hearing of the appeal (unless the landlord succeeds in bringing a motion to lift the stay or quash the appeal). In this case, there was no time to schedule a formal motion between the time when Ms. Mitrou contacted the Court and the eviction date. Therefore, the court has a choice between granting an interim stay and scheduling a formal motion to extend at a later date or deciding the motion to extend based on the materials and submissions made during the case conference. Given that Ms. Mitrou initially requested that the motion be considered in writing and that she included an affidavit with her request, and because I gave the parties an opportunity to address the test on a motion to extend the time for an appeal during the case conference, I am confident that I can decide the motion to extend based on the materials and submissions heard during the case conference. Ultimately, as discussed below, the key issue is the justice of the case, including whether there is any merit to the proposed appeal. In my view, there is no merit to the appeal and the justice of the case does not favour extending the time for appealing given Ms. Mitrou’s persistent and admitted non-payment of rent.

[14] As held in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16, in deciding whether to grant an extension of time to bring an appeal, the court is to consider “whether the ‘justice of the case’ requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations”. The relevant factors identified by the Court of Appeal in Enbridge are:

1. whether the moving party formed an intention to appeal within the relevant period;
2. the length of the delay and the explanation for it;
3. prejudice to the responding party; and
4. the merits of the appeal.

[15] In Enbridge, the Court also noted that lack of merit on its own can justify denying an extension of time for bringing an appeal.

Intention to appeal

[16] Ms. Mitrou’s affidavit does not state that she intended to appeal the Review Order within 30 days after receiving it. However, if this was the only issue, it would not weigh heavily against Ms. Mitrou.

Length of delay and explanation for the delay

[17] The delay is four months. In the context of an appeal from the Landlord and Tenant Board, this is a lengthy period, especially where the rent remains unpaid during that period. In her affidavit, Ms. Mitrou explains the delay by stating that she has had various health issues and that she tried to retain a lawyer who did not provide any assistance even after being provided with part of a retainer. The length of the delay and the lack of detail in Ms. Mitrou’s explanation weigh against granting the extension. However, if the proposed appeal had merit, this consideration may not have been fatal.

Merits of the appeal

[18] I do not see any merit to Ms. Mitrou’s proposed appeal.

[19] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. This Court has routinely dismissed appeals from the Board that do not raise a question of law, even on a preliminary basis: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.); Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.); and Byfield v. Gill, 2021 ONSC 4008 (Div. Ct.).

[20] In Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada explained that “questions of law are questions about what the correct legal test is”. Questions of law also include matters of procedural fairness.

[21] In this case, the notice of appeal says that the appeal raises a question of law but does not identify any specific legal errors. The grounds of appeal are described as follows:

Improper and lack of evidence, legal errors on files made which have caused decisions based on cancelled and enforced judgment. Error in law have also been made in respect of COVID non-payment eviction law.

[22] While Ms. Mitrou says that the Review Order contains an error of law because it is based on a cancelled order, the Board identified what it viewed as an error on the face of the Board’s July 12, 2019 order and rectified that error. This was within the Board’s discretion and is not an error of law. Looking at the orders at issue, it is evident that the order the parties agreed to cancel was the order obtained by the Landlord without notice following the May 1, 2019 order. This was meant to be helpful to Ms. Mitrou to give her time to make outstanding payments. It would have made no sense for the Landlord to agree to cancel the May 1, 2019 order because there would have been nothing to stay in the circumstances. While the Review Order does not state this explicitly, it is evident that this is the error it was rectifying, which was a factual matter within its discretion.

[23] Ultimately, the Board’s March 22, 2021 Review Order was based on a finding that Ms. Mitrou had not paid any rent for 15 months and that Ms. Mitrou had previously entered into a consent order that allowed the Landlord to move without notice to terminate the tenancy if she did not pay her ongoing rent. The Board made a factual finding that Ms. Mitrou had not paid rent for 15 months and made an order terminating the tenancy. While Ms. Mitrou denies that she owed 15 months in rent, she admits that she owed 12 months rent at that time. The Board made of factual finding of persistent non payment of rent and applied that finding to the previous order made by the Board on consent. This is not an error of law.

[24] With respect to the suggestion that the Board did not follow “COVID non-payment eviction law”, there is no such law. While evictions have been suspended at various times during the pandemic, there is no law that provides that tenants were excused from paying rent during the pandemic. The Board has the discretion to defer an eviction and give a tenant an opportunity to pay outstanding rent, but this is discretionary and would not apply to a situation, such as this one where there is persistent non-payment of rent that predates the pandemic and that includes a consent order that allows the Board to terminate the tenancy if defaults persist.

[25] During the argument of the motion, I asked Ms. Mitrou if she had any other grounds for arguing that the Board made a legal error. She said that she tried to make various submissions to the Board member but that she was cut off. There is no transcript from the hearing and Ms. Mitrou has not yet ordered a transcript. Again, given the admission of a lengthy non-payment of rent, it is not possible to see that there is any merit to the suggestion of procedural unfairness in this case.

[26] Finally, during the argument, Ms. Mitrou said that she anticipated that she would be able to buy the house from the Landlord. She said that there were outstanding agreements of purchase and sale. This is not relevant to the issue of whether there is any merit to the proposed appeal. Ms. Mitrou may have hoped to buy the house and the parties may have had negotiations about such a purchase. However, this does not affect her obligation to pay ongoing rent nor does it raise any issues of law with respect to her proposed appeal.

[27] Accordingly, I am satisfied that the appeal does not have any merit. The Board’s order of March 22, 2021 was based on a finding that Ms. Mitrou owed large amounts of unpaid rent. This was a factual finding and Ms. Mitrou does not dispute that she owes a large amount of rent to the Landlord.

Prejudice to the Landlord

[28] The Landlord did not provide any evidence on the motion and, therefore, there was no direct evidence of prejudice to the Landlord. Ms. Singh and her family members made statements during the hearing about Ms. Mitrou persistently promising to pay her rent and failing to do so, but this was not set out in any affidavit. However, from the record and from Ms. Mitrou’s own evidence, it is not difficult to see that there has been an ongoing failure to pay rent which is necessarily prejudicial to the Landlord. If there was any apparent merit to the appeal, I would at least have imposed a term that Ms. Mitrou pay her admitted arrears and ongoing rent until the hearing of the appeal, failing which the Landlord could move without notice to lift the stay. However, given my conclusion above about the merits, there would be no utility to making such an order.

Justice of the case

[29] As indicated above, the Court is to consider the overall justice of the case in deciding whether to extend the time for bringing an appeal. In this case, in addition to the lack of merit, another factor that weighs heavily against extending the time for appealing is that the proposed appeal appears to be an abuse of process.

[30] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the sole purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34.

[31] If Ms. Mitrou’s appeal were allowed to proceed, she would be entitled to an automatic stay of the eviction. In this case, the non-payment of rent issues date back to 2019. By the time of the hearing in March 2021, the Board found that Ms. Mitrou owed 15 months rent. While Ms. Mitrou claims that this was an error, she does concede that, at that time, she owed 12 months rent and that she has not paid any rent since the Board issued its order. By the time of the hearing before me, she conceded that she owed at least $112,000 in rent.

[32] Ms. Mitrou stated that, if given a chance, she could pay this outstanding amount into court. However, given the large amount at issue, the persistent history of non-payment of rent and the apparent lack of merit, the justice of the case simply does not support granting the extension of time and giving Ms. Mitrou yet another chance to pay her outstanding rent.

Conclusion

[33] In conclusion, the motion to extend the time to appeal the Board’s order is dismissed.

[34] Given that the Landlord was not represented by counsel and did not file any responding materials, I make no order as to costs.

Favreau J.

Date: August 3, 2021