Court File and Parties
CITATION: Capreit Limited Partnership v. Hume and McFarlane, 2022 ONSC 5655 DIVISIONAL COURT FILE NO.: 052/22 DATE: 20221012
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Capreit Limited Partnership, Landlord (Respondent) AND: Gregory Hume and Wentworth McFarlane, Tenants (Appellants)
BEFORE: O’Brien J.
COUNSEL: D. Levitt, T. Duggan, and S. Toole, for the Landlord (Respondent) No one appearing for the Tenants (Appellants)
HEARD at Toronto: In writing October 5, 2022
Endorsement
Overview
[1] This motion is brought by the moving party landlord, who is the Respondent on the appeal, Capreit Limited Partnership (the “Landlord”). The Landlord seeks an order dismissing the appeal of the tenants, Mr. Hume and Mr. McFarlane (“Tenants”) for delay. It also seeks an order lifting the automatic stay of eviction pending appeal. The Landlord submits that the Tenants are using the automatic stay afforded to them by the appeal to avoid paying rent. Further, the Tenants have failed to perfect their appeal in accordance with the timetable ordered by this Court.
[2] This motion was heard in writing. In spite of several communications from the Court to the parties, the Tenants, who have been represented by counsel throughout this proceeding, did not file any material in response to the motion. After the week during which this motion was scheduled to be heard (in writing), counsel for the Tenants wrote to the Court stating that her clients would not be submitting any motion materials.
[3] The Tenants rent a property from the Landlord on Wellesley Street in Toronto. On September 8, 2021, the Landlord and Tenant Board (the “Board”) made an order terminating the Tenants’ tenancy for non-payment of rent (the “Eviction Order”). The Tenants then filed a request to review the Eviction Order.
[4] In its order dated December 15, 2021 (the “Review Order”), the Board granted the review on the basis that the Eviction Order failed to take into account that the Tenants had filed a consumer proposal under the Bankruptcy and Insolvency Act. However, the Board also ordered that unless the Tenants voided the Review Order pursuant to the terms of that order, the tenancy would be terminated. Specifically, the Tenants could void the Review Order by paying $3,746.35 on or before December 28, 2021.
[5] The Tenants did not pay that amount nor vacate the tenancy. Instead, they commenced the within appeal, which stayed the Review Order.
[6] On February 7, 2022, Copeland J. issued directions following a case conference. Pursuant to her directions, on consent, the Tenants were required to pay $2,084.68 per month for rent plus $800.00 per month towards the accrued arrears of rent. Between February 9, 2022, and August 9, 2022, the total amount owed pursuant to her directions was $16,292.08. During that period, the Tenants paid $9,395.64. On August 11, 2022, in response to the Landlord’s request to the court to lift the stay, Matheson J. directed that the Landlord was required to bring a motion to lift the stay of the Review Order, which led to the within motion.
[7] The Landlord’s uncontested evidence is that the accrued shortfall in the amounts owed by the Tenants to September 30, 2022, is $9,781.12. In addition, the Tenants did not perfect their appeal by May 9, 2022 as required by the directions of Copeland J.. They still have not perfected their appeal nor did they participate in this motion.
[8] For the reasons that follow, the appeal is dismissed for delay. In view of my dismissal of the appeal for delay, I do not need to address separately the question of whether the stay should be lifted.
Should the Appeal be Dismissed for Delay?
[9] The Landlord submits that the appeal should be dismissed for delay in view of the Tenants’ failure to perfect. Subrule 61.13(3.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that where an appellant has not perfected the appeal within the time prescribed by an order of the appellate court or a judge of that court, the Registrar shall make an order dismissing the appeal for delay.
[10] Subrule 61.13(3.1) authorizes the Registrar to dismiss an appeal for delay. While the Rules do not specifically address a judge’s authority to dismiss an appeal for delay, r. 1.04(2) provides that where matters are not provided for in the Rules, the practice shall be determined by analogy to them. I find that I am able to dismiss the within appeal for delay by analogy given that the appellant has failed to perfect its appeal and is otherwise in default of this Court’s directions. Specifically, in my view, it is appropriate to dismiss the Tenants’ appeal for delay in the circumstances of this case for the following reasons:
(a) Pursuant to r. 50.13, Copeland J. gave directions on consent requiring the Tenants to perfect their appeal by May 9, 2022. The Tenants did not perfect their appeal in the time prescribed, nor have they done so in the almost five months since that time.
(b) The Tenants also failed to comply with Copeland J.’s directions for payment. They made some payments pursuant to those directions, but by September 30, 2022, the accrued shortfall was almost $10,000.
(c) In addition, the Tenants have had an opportunity to respond to this motion but failed to do so. Upon receiving an e-mail from the Landlord in August outlining the Tenants’ default (copied to Tenants’ counsel), Matheson J. provided directions noting that there was a pattern of the Tenants making partial payments to the Landlord. Therefore, she directed that if the Landlord wished to have the stay lifted, it was required to bring a motion for that relief. This provided the Tenants with additional time and a more fulsome opportunity to explain their circumstances.
(d) The Tenants were served with the materials for this motion but declined to participate. The Tenants have not provided any justification for their defaults. Nor have they indicated any intention to pursue their appeal.
[11] Given the Tenants’ failure to perfect their appeal, ongoing failure to comply with the directions of this Court, and failure to respond to this motion, the appeal is dismissed for delay.
Costs
[12] The Landlord seeks costs of the motion on a substantial indemnity basis. However, it has failed to upload a Bill of Costs and Costs Outline to Caselines, as required by the Divisional Court’s Notice to the Profession. The Landlord filed a brief motion record and factum on this uncontested motion. In the circumstances, I consider it appropriate to order the Tenants to pay costs of $3,000.00.
Disposition
The appeal is dismissed.
The Tenants are required to pay costs of this motion to the Landlord in the amount of $3,000.00.
Date: October 12, 2022