CITATION: Gencay v. Capreit Limited Partnership, 2021 ONSC 8293
DIVISIONAL COURT FILE NO.: 925/21
DATE: 2021216
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: UGUR GENCAY v. CAPREIT LIMITED PARTNERSHIP
BEFORE: D.L. Corbett J.
HEARD: In Chambers, In Writing
ENDORSEMENT
[1] On December 16, 2021, the court released the endorsement set out in the balance of this decision, with this formal decision to be released to the parties in due course.
[2] The court has concluded that the tenant is likely not proceeding in good faith and has likely abused the process of the LTB and of this court. Notwithstanding this conclusion, the court will give the tenant an opportunity to rectify the rent arrears and to pay ongoing rent. It is ordered as follows:
Mr Gencay shall pay the sum of $18,840 to the Accountant of the Ontario Superior Court of Justice by 3:00 pm, December 22, 2021, failing which the stay of enforcement of the eviction order of the LTB shall be lifted.
Mr Gencay shall pay the sum of $1,570 to the Accountant of the Ontario Superior Court of Justice by February 1, 2022, and by the first day of every month thereafter, pending final disposition of this appeal or other court order, failing which the stay of enforcement of the eviction order of the LTB shall be lifted.
Counsel for the landlord may prepare and forward forthwith a draft order lifting the stay, in WORD format, for issuance after 3:00 pm on December 23, 2021 if the payment is not made as directed in para. 1.
Reasons
[3] On the basis of the findings of the LTB, Mr Gencay has not paid rent since February 2021. Monthly rent is $1,570 per month. Total arrears were found by the LTB to be $10,990 to August 31, 2021. Additional arrears have accrued since that date bringing the total outstanding to $17,720. A further $1,570 will accrue on January 1, 2022.
[4] The findings as to arrears and the quantum of monthly rent are set out clearly in the LTB's decision.
[5] By direction of Favreau J. emailed December 6, 2021, Mr Gencay was directed to provide confirmation of the rent and arrears in advance of a case management teleconference scheduled for today, December 16, 2021.
[6] By email from Mr Gencay on December 7, 2021, he advised that he suffers from a hearing disability that renders him unable to participate in a hearing by electronic means. He provided some medical evidence in support of this position. That evidence does not include an opinion from a doctor that his disability renders him unable to participate in electronic communications by telephone or videoconference. However, this court will accommodate such a request to the point of undue hardship without full inquiry at the initial stages of process in this court, rather than delay proceedings to inquire into the claimed need for accommodation further. By direction from me on December 7, 2021, it was directed that the case management teleconference scheduled for December 16, 2021 be held in person. I also directed that Mr Gencay provide the particulars required by Favreau J. by December 10, 2021.
[7] By email from My Gencay on December 10, 2021, Mr Gencay stated that he had not understood that the landlord had been making claims respecting non-payment of rent, and because he was not able to hear proceedings before the LTB because of his hearing disability (one of his grounds of appeal), he did not realize he may have been asked questions at the LTB about non-payment of rent. He then wrote as follows:
Of course now - respecting request of appeal court - I will double-check what happened with withdrawals using a dedicated banking statement, but I have no access to my account on-line also I want to keep confidential all other transactions not related to this appeal case. So that I will need to request from my bank a customized account report to cover December 2020 (start date of my lease) - November 2021. Usually such customized reports are issued by bank's head offices and not by the branch. As a conclusion I may need up to 10 business days to gather such a report and submitting it to all parties of this appeal case.
[8] In response, this court directed as follows on December 13, 2021:
Mr Gencay has had the LTB's decision in writing in advance of this appeal. His request for a further ten business days to produce bank statements showing payment of rent is denied; he will be expected to provide proof of any payments inconsistent with the LTB's findings at the scheduled in-person case management teleconference on December 16, 2021, failing which the court may infer non-payment for the purpose of establishing interim terms for continuation of the stay pending appeal. Mr Gencay may wish to attend at his bank for the purpose of obtaining the necessary bank statement so that he can provide it to the court on December 16th.
[9] By email from Mr Gencay sent on the morning of the case management conference, he advised as follows:
On December 15th, 2021 I visited my bank to discover what happened in my account which was set to automatically pay my rents to the Landlord. Now - unfortunately - I understand that available funds in this account remained insufficient since January 2021. (And I have never checked it in between). Due to my current personal finance, I have no immediate funds to close the rent balance; however as of December 15th, 2021 I ordered an international money transfer from my bank in my home country. These funds will be available as of December 24, 2021. Then, I will immediately close, at once full balance with a Money Order.
Under these circumstances and facts, I preferred not to attend the hearing of December 16, 2021 at the Divisional Court.
[10] The finding of non-payment of rent is set out clearly in the LTB decision which Mr Gencay is appealing. I make no finding as to whether Mr Gencay had formal notice of it prior to the LTB hearing - that is a matter for the main appeal - but I do not accept that the issue was not discovered by him until December 10, 2021. Further, the directions of Favreau J. of December 6, 2021 and from me on December 7, 2021, clearly identify the arrears issue and set out the amounts. Finally, I do not accept that Mr Gencay had no awareness that his rent had not been paid and his bank account had insufficient funds to cover the rent for a period of eleven months. This would require Mr Gencay to misunderstand his means by a quantum of many thousands of dollars for a period of many months. There can be many reasons why a tenant may fall into rent arrears. Being oblivious to on-payment is almost never one of them, and that claim lacks credibility in the totality of the circumstances of this case. I do not accept that Mr Gencay did not know about the non-payment issue until his response to the court on December 10, 2021.
[11] The requirement to pay rent is a tenant's fundamental obligation. Mr Gencay's claim that he required a further ten "business days" to document this issue, and latterly that he has arranged to be put in funds to pay his rent, but will be unable to do so until Christmas Eve, does not respond adequately to the situation. It is consistent with an ongoing attempt to delay justice. Mr Gencay's unilateral decision not to attend the in-person case management teleconference reflects further abuse of the process of this court. Public resources were spent to accommodate Mr Gencay so that he could speak with me about this situation today. Having unilaterally cancelled the hearing, at the last minute, Mr Gencay cannot now complain that he did not have a chance to address proposed terms for his payment of outstanding arrears and ongoing rent.
[12] Notwithstanding all of this, I will give Mr Gencay a chance to pay the arrears and rent for January 2022 into court, but I will not give him until Christmas Eve to do that. I will leave time for the landlord to obtain an order lifting the stay before the holiday period begins if Mr Gencay does not make the required payment on time. For Mr Gencay's information, he can arrange to have the funds directly deposited electronically with the Accountant of the Superior Court - he may obtain information on how to do that from the Office of the Accountant. This may save him time in making the required payment.
[13] The court will give further directions respecting the underlying appeal if the funds are paid to the Accountant by December 22nd, or, if they are not, once the stay of eviction is lifted and the eviction order is enforced. Either party may request such directions by email.
[14] This endorsement is effective as an order from this court from the time it is sent to the parties by email. It will be released as a formal endorsement as well, in due course.
"D.L. Corbett J."
December 16, 2021