Court File and Parties

CITATION: Khan v. Palacios, 2022 ONSC 6216

OSHAWA DIVISIONAL COURT FILE NO.: DC-22-1338

DATE: 20221102

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Camille Khan, Landlord (Respondent)

AND:

Alexander Palacios, Tenant (Appellant)

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Timothy Duggan, Counsel for the Landlord (Respondent)

Alexander Palacios, Self-Represented

HEARD: November 1, 2022

ENDORSEMENT

[1] A case management Zoom conference was held on November 1, 2022.

[2] The Tenant, Alexander Palacios, has appealed from the Review Order of the Landlord and Tenant Board (LTB) dated October 14, 2022. The Review Order denied the Appellant’s request to review the Decision and Order of the LTB issued on August 22, 2022.

[3] The LTB decision of August 22, 2022 was a consent Order agreed to by the parties. The parties agreed at that time that the Tenant’s outstanding rent arrears were $10,700 as of August 31, 2022. The Tenant agreed to pay the Landlord the arrears and specified amounts in accordance with an agreed schedule, and agreed that failure to make any payment in accordance with the Order would result in the termination of the tenancy.

[4] On October 20, 2022, the LTB found that the Tenant had failed to make the payments required by the August 22, 2022 Order, and, pursuant to the terms of the consent Order, terminated the Tenant’s tenancy and ordered his eviction if he did not move out by October 31, 2022.

[5] The request to review the August 22, 2022 LTB consent Order was not brought by the Tenant in his own name, but was brought in the name of the Tenant’s minor son, and was based on the allegation that the minor son is also a tenant who was not given notice of the LTB hearing and did not have an opportunity to participate in that proceeding. In its Review Decision of October 14, 2022, the LTB found that the son was not a tenant.

[6] The Tenant filed his Notice of Appeal on October 18, 2022.

[7] An appeal lies to the Divisional Court from a decision of the LTB, but only on a question of law (s. 210(1) of the Residential Tenancies Act).

[8] Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, chap. S-22 (SPPA), unless the court orders otherwise, there is an automatic stay of the eviction order pending the appeal to the Divisional Court.

[9] Following receipt of the Tenant’s Notice of Appeal, this case conference was scheduled. My direction to the parties required the Tenant to confirm the accuracy of the outstanding rent found by the LTB, or, if he took the position that it is not accurate, to state (a) the current amount of arrears; (b) the current monthly rent; and to provide the court with proof of payment of any rent payments the Tenant has made that are not reflected in the LTB’s calculations.

[10] The direction stated: “At the case management conference, the court may make orders respecting payment of ongoing rent and rental arrears as a condition of continuing the stay pending appeal in this court”.

[11] At the case conference the Tenant did not dispute the $10,700 amount owing calculated by the LTB. He does not dispute that he has not paid rent since that decision.

[12] While there is some dispute between the parties regarding the monthly rent and the amount currently in arrears, the Tenant acknowledges that his rent is $1,345 per month (the Landlord claims it is $1,366 per month), and that the total rent in arrears is $12,000 (the Landlord claims it is $14,995).

[13] The Tenant takes the position that he cannot be evicted because his minor son is also a tenant, and his minor son was never given notice of the LTB proceedings. That is also the basis of his appeal to the Divisional Court.

[14] The Landlord takes the position that the appeal is frivolous for at least three reasons. First, the October 14, 2022 Order of the LTB was a consent Order, and the Tenant is trying to appeal a consent Order without having sought leave of the Court as required by s. 133(a) of the Courts of Justice Act, R.S.O. 1990, chap. C-43. Second, the Tenant was not a party to the Review Order, since the party that filed the Request to Review was the Tenant’s minor son. Finally, the appeal claims that the LTB “erred in law”, but is devoid of any particulars regarding the nature of the legal error alleged.

[15] The Landlord argues that the appeal is an abuse of process and requests the Court to make an order dismissing the appeal pursuant to Rule 2.1.01(1) and (6) of the Rules of Civil Procedure.

[16] The morning of the case management conference I was advised by the parties that the Tenant had also sought a review of the LTB Order of October 20, 2022, and that the LTB has scheduled a hearing of the that matter on November 15, 2022. The Eviction Order of the LTB was stayed by Order of the LTB pending its decision following the November 15, 2022 hearing.

Analysis

[17] Whether or not the Tenant’s minor son is also a tenant, the Tenant may not refuse to pay rent. The Tenant acknowledges that he does not expect his minor son to pay any portion of the rent owing.

[18] As Corbett J. stated in Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739, at para. 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.

[19] In these circumstances, with no rent having been paid since at least January 2022, I advised the parties that I would make an Order requiring the Tenant to pay his acknowledged arrears and continuing monthly rent, or the automatic stay of the Eviction Order under s. 25 of the SPPA would be lifted. For the purposes of this Order, I will use the amount acknowledged by the Tenant to be correct, although this is without prejudice to the right of the Landlord to enforce whatever amounts have been found to be correct by the LTB.

[20] In addition, the Landlord has raised serious concerns regarding the validity of the appeal in this case. In my view, it would be premature to consider that question pending the outcome of the LTB hearing on November 15, 2022. I have asked the parties to provide me with a copy of the LTB decision when it becomes available, and we may conduct another case management conference following the release of that decision.

[21] This Court Orders:

a. The Tenant, Alexander Palacios, shall pay the Landlord $12,000 by 4:00 p.m. on November 30, 2022, by certified cheque or electronic funds transfer payable to Timothy Duggan in Trust (or as directed by Mr. Duggan), failing which the stay of the enforcement of the Eviction Order of the LTB made pursuant to s. 25 of the SPPA shall be lifted.

b. The Tenant, Alexander Palacios, shall pay the Landlord $1,345 by 4:00 p.m. on the first of every month commencing December 1, 2022, by certified cheque or electronic funds transfer payable to Timothy Duggan in Trust (or as directed by Mr. Duggan), failing which the stay of the enforcement of the Eviction Order of the LTB made pursuant to s. 25 of the SPPA shall be lifted.

c. If payment is not made in accordance with paragraphs a) and b) above, the Landlord may prepare and forward forthwith a draft order lifting the s.25 SPPA stay of the eviction order, in WORD format, for issuance.

Justice R.E. Charney

Date: November 2, 2022