CITATION: Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739
DIVISIONAL COURT FILE NO.: 845/21
DATE: 20211123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
B E T W E E N:
STEVE MAPHANGOH
Mr Maphangoh self-represented
Appellant / Tenant
- and -
REVERA RETIREMENT HOMES
Mr Strashin, for the Respondent / Landlord
Respondent / Landlord
Ms Crystal, for Landlord and Tenant Board
Heard at Toronto: Nov 19, 2021
ENDORSEMENT
D.L. Corbett J.:
[1] This endorsement confirms directions given to the parties orally on November 19, 2021. As stated to the parties on November 19th, these directions were effective as of November 19, 2021.
[2] The appearance on November 19, 2021 was a case management conference. The tenant, Mr Maphangoh, was present in person in the courtroom at Osgoode Hall in Toronto. Counsel for the landlord and counsel for the LTB attended by telephone.
[3] At the conclusion of the case management conference the court made the following direction:
(a) The tenant is to pay the landlord $23,624.72 by 3:00 pm, November 26, 2021.
(b) The tenant is to pay the landlord $2,500.00 monthly, commencing December 1, 2021 and on the first day of each month thereafter pending final determination of the appeal.
(c) If the tenant fails to make any of the payments described in (a) or (b), the landlord may obtain an order from this court lifting the stay of the eviction order of the Landlord and Tenant Board. This may be sought by way of an email to the court accompanied by a draft order in WORD format, copied to Mr Maphangoh by email and by regular mail to his address for service.
(d) The appellant/tenant may be served and may be given notice by the court of its directions by email and by regular mail to his address for service.
[4] The LTB found that arrears to October 13, 2021 were $23,624.72 and that daily compensation for continued occupancy accrues at $74.09 per day (roughly $2,500 per month).
[5] Mr Maphangoh commenced this appeal and obtained a stay of the eviction order of the Board on October 22, 2021.
[6] I directed the parties as follows on October 25, 2021:
(1) The LTB found that the tenant owes $23,624.72 in unpaid arrears as of October 13, 2021. Tenant is asked to confirm the accuracy of this number. If tenant contests the accuracy of this number, tenant is required to provide proof of payments he says he has made that have not been accounted for by the LTB and his calculation of the current arrears.
(2) The LTB found that the tenant has failed to pay rent since October 30, 2020. The tenant is asked to confirm this fact or, if the tenant says that rent has been paid since October 30, 2021, to provide proof of payment(s).
(3) There shall be a case management teleconference held on Thursday October 28, 2021 at 3:00 p.m., at which time the court may impose terms for continuing the stay of the eviction order including a requirement that ongoing monthly rent be paid when due and material payment(s) be made on account of arrears. The parties should also expect that the court will impose a schedule for the appeal at the teleconference call.
(4) The tenant advises that he is blind and hearing-impaired. If the tenant requires accommodation to participate in a teleconference, he should advise court staff, including particulars of how he says his issues may be accommodated to permit these matters to proceed.
Case conference before Justice Kristjanson Thursday October 28, 2021 @ 3:00 p.m.
[7] Court staff were directed to phone Mr Maphangoh to read him the court’s directions. Mr Maphangoh did not answer his phone. A voicemail message was left for him. He did not return the call.
[8] On October 27, 2021 the pending case management teleconference was cancelled by direction of Kristjanson J., pending accommodation of Mr Maphangoh’s claimed disabilities.
[9] Mr Maphangoh subsequently attended at the counter of the Divisional Court office in the courthouse. Staff read him this court’s endorsement dated October 25, 2021. Mr Maphangoh advised that he could not participate in a conference by telephone or by videoconference and that he would require an in-person hearing in order to participate. Staff scheduled the conference for November 19, 2021, in person, at my direction, to accommodate Mr Maphangoh, and advised counsel for the respondent and the LTB that they could attend the conference by telephone.
[10] At the case conference the court asked Mr Maphangoh to confirm the monthly rent, the quantum of arrears and to provide proof of payment of any rent that he says was made that is not accounted for in the LTB’s decision. Mr Maphangoh said that he did not know what the monthly rent is. He stated that there were no arrears because all payments had been made by CSIS (Canadian Security Intelligence Service). He did not have any documents showing that CSIS is liable for the rent or that CSIS has made any rent payments. When pressed, given that Mr Maphangoh had been directed by the court to provide proof of payment of rent, he responded that CSIS does not conduct its affairs by leaving a paper trail of documents.
[11] Mr Maphangoh then said that the issues in this case are matters of federal law and are beyond the jurisdiction of the Landlord and Tenant Board. He told the court that he had been living in a hotel from which he was apprehended by CSIS and taken to the premises he currently occupies. He says that CSIS is keeping him in these premises, that he is not free to leave, and that this is all within the jurisdiction of the Federal Court as a matter relating to national security.
[12] I asked Mr Maphangoh if he is being treated by a physician for mental illness. He said that he is not.
[13] There are two possibilities here. One, highly unlikely as it is, is that Mr Maphangoh is telling the truth. In that event, CSIS has been paying his rent and is responsible for any shortfall. If, as Mr Maphangoh suggests, he is being kept in his premises coercively, it sems unlikely that CSIS would permit him to just leave because of an eviction order issued by the LTB. Thus, if payment is directed, then presumably CSIS will make the payment to continue to keep Mr Maphangoh securely in the premises. Any issues about overpayment or underpayment of rent could be sorted out between the landlord and CSIS in due course. On its face, this line of argument does not raise an arguable jurisdictional issue.
[14] Much more likely, Mr Maphangoh is gaming the system. At one point Mr Maphangoh suggested that he would end up “on the street” if enforcement of the eviction order is not stayed, an event that would seem inconsistent with his claim to be in CSIS’s “protective custody”. There were several such strong indications that Mr Maphangoh knows that his claims are counter-factual.
[15] The obligation to pay rent as it falls due is fundamental. Where a tenant has defaulted in rent obligations for a long time, this court will require the tenant to make rent payments and reasonable payments on account of arrears to maintain a stay of eviction pending appeal. The statutory stay is intended to preserve the court’s ability to do justice at the end of the appeal, not to enable a tenant to abuse the process of the LTB and the court to live rent-free for a long time. Appropriate terms for interim payment of rent and arrears will depend on all of the circumstances of the case – to allow tenants with good faith appeals, who intend to meet their rent obligations within a reasonable period, to preserve their tenancies – and to bring an end to failed tenancies that cause further loss to the landlord every month that goes by.
[16] Here, where only two scenarios present themselves as reasonable, an order for the full payment of arrears and ongoing rent pending appeal is appropriate. Either those payments can be made easily by the party responsible for making them (CSIS), or the appellant is gaming the system and has no intention of meeting his obligations.
[17] Finally, I have concerns about the claimed need for accommodation in this case. When I asked Mr Maphangoh why the court cannot communicate with him using email, he said that CSIS intercepts his emails. When I asked how the court could communicate with him, he said the court could send him its communications by courier, so that he could receive them personally. The court is not going to do that. There is no reason that the public should incur this expense – it is for Mr Maphangoh, as a litigant before this court, to provide an address for service and a means by which that service will be effective in the ordinary course. It is not reasonable that he insist on personal service on him of every communication. Service on Mr Maphangoh shall be effective (whether by the court or by another party) by:
(1) Sending a document to Mr Maphangoh’s email address; and/or
(2) Mailing the document to Mr Maphangoh’s address for service.
In addition, court staff may try to reach Mr Maphangoh by telephone to read the court’s directions to him or to advise him to call staff to have the direction read to him.
[18] In the court’s experience with Mr Maphangoh, he is able to hear and understand words said to him in person. This was the experience of counter staff when Mr Maphangoh attended at the court office and it was my experience of Mr Maphangoh in the courtroom. He heard and understood what was being said to him. No explanation has been provided by Mr Maphangoh as to why he cannot participate effectively in a teleconference.
[19] Second, Mr Maphangoh did not conduct himself in court as a person with a vision disability. Throughout, he clutched a thick sheaf of papers and stated that he wished to make a presentation. The courtroom was at close quarters and I could see that some of the papers were filled with dense handwriting, and, at times Mr Maphangoh started to read from them. At one point he shuffled through the papers to locate a document from the Federal Court that he then provided to me. Mr Maphangoh apparently has some vision and some hearing and whatever disability he may have with either sense did not appear to impair his ability to participate.
[20] At this stage there is no need to inquire further into these issues and I make no finding about them. If the required payments are made in accordance with this direction, then the court will consider what should be done to establish the accommodations reasonably required by Mr Maphangoh to participate fairly and fully in further process in this court.
D.L. Corbett J.
Released: November 23, 2021
CITATION: Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739
DIVISIONAL COURT FILE NO.: 845/21
DATE: 20211123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STEVE MAPHANGOH
Appellant / Tenant
- and -
REVERA RETIREMENT HOMES
Respondent / Landlord
REASONS FOR DECISION
D.L. Corbett J.
Released: November 23, 2021