Court File and Parties

CITATION: Kealy v. Brimley Place, 2023 ONSC 1370 DIVISIONAL COURT FILE NO.: 82/23 DATE: 20230310

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: BERNADETTE KEALY, Appellant/Moving Party AND: BRIMLEY PLACE GP INC., Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant Rhea Mathew, for the Respondent

HEARD at Toronto: March 2, 2023 (by videoconference)

Endorsement

[1] The appellant seeks interim relief pending the hearing of her appeal from the decision of Cavanagh J. dated January 13, 2023 (the “Decision”). The underlying appeal is brought as of right under s. 78 of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 (the “CTA”).

[2] In the Decision, the application judge granted an application under s. 74(1) of the CTA for a writ of possession for a unit in a commercial mall in Scarborough. The appellant has been and continues to live in the unit. She seeks an interim order staying the writ of possession, granted under the Decision, dated January 31, 2023.

[3] The appellant has advised the court of her disability, including her difficulties preparing written documents and her need for more time for oral submissions. In response to the appellant’s request for accommodation, the Divisional Court case management judge gave directions that the appellant not need upload documents to CaseLines, need not provide a formal motion record and need not provide a factum. The appellant’s documents were provided by email and I have received them, along with a transcript of the proceedings before the application judge that was obtained by the court. The respondent was directed to put the application record from the court below on CaseLines for the appellant and has done so. As well, despite a recent illness, the appellant indicated that she was able to proceed at the hearing of her motion.

[4] This motion and the underlying proceedings arise because the appellant has been living in what has been determined to be a commercial premises. She has lived there since about 2018. The property was sold to the respondent in 2021.

[5] As recounted in the Decision, the City of Toronto took steps regarding the use of the unit. In 2021, the City of Toronto issued a notice of violation against the respondent, requiring repairs. The appellant disputes that she denied entry to the professional engineer who was hired to review the interior of the property. She submitted at the hearing of her motion in this court that she did not know of any outstanding valid repair orders, and that if there was one, she would provide reasonable access.

[6] Later in 2021, the City issued a notice of violation because the appellant was using the property as a residence contrary to the City’s zoning bylaw for the property.

[7] The respondent’s next appearance in the Provincial Court on these charges is on April 28. 2023. On this motion, the respondent notes its exposure to mounting fines as the period of non-compliance continues.

[8] The appellant brought an application to the Landlord and Tenant Board (“LTB”) seeking an order regarding whether or not the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”) applied to her tenancy. By order dated April 6, 2022, the LTB determined that the RTA did not apply. It is not a residential tenancy. The appellant sought a review of that order by the LTB. The review was unsuccessful, as set out in the LTB order dated May 11, 2022. Although the appellant submits that she wanted to appeal the LTB orders, she did not do so.

[9] The nature of the appellant’s tenancy has therefore been determined. It is a commercial tenancy under the CTA.

[10] The respondent proceeded with the Notice to Quit under the CTA in May 2022. The appellant refused and continues to refuse to vacate.

[11] The Decision arises from the respondent’s application under the CTA, brought after the appellant refused to vacate.

[12] At the hearing of the application in January of 2023, the appellant sought an adjournment.

[13] Before addressing the adjournment request, the application judge heard from the appellant about her disability and her request to be accommodated by having more time to make her oral submissions. The transcript of the hearing shows that the application judge accommodated the appellant.

[14] The appellant gave reasons for her adjournment request. In denying that request, the application judge took into account the appellant’s disability, her status as a self-represented party and the reasons put forward in support of the adjournment. Those reasons mainly related to two witnesses the appellant wanted to call to testify about her difficult history with the prior landlord/owner and her complaints about the poor state of repair of the building, as well as the nature of her tenancy (which, by then, had been determined by the LTB). The application judge found that the proposed evidence was irrelevant.

[15] The application judge determined that the respondent had fulfilled the requirements of the CTA and was entitled to a writ of possession. The CTA has very limited requirements to obtain a writ of possession for a month-to-month commercial tenant.

[16] The application judge then raised the question of an extension of time for the appellant to vacate. It had already been over six months since the 30-day time period had elapsed. The appellant requested an additional six to twelve months because of her very limited financial means. The application judge extended the time for an additional six weeks, ending on March 10, 2023.

[17] The appellant now seeks a stay of the writ of possession until her appeal is heard. The materials for the appeal have not yet been exchanged and the appeal has not yet been schedule. The respondent objects.

[18] The legal test for a stay is well-settled and is set out in the appellant’s notice of motion. There are three main factors to be considered: first, whether there is a serious question to be tried; second, whether the moving party will suffer irreparable harm if the stay is not granted; and third, the balance of convenience. These are not isolated considerations. They overlap with each other in most cases. Overall, the question for me is whether or not the justice of the case calls for a stay.

[19] When considering whether the appeal raises a serious issue, I note that the threshold is low. Nonetheless, this factor is a problem for the appellant.

[20] The grounds of appeal generally fall within the area of procedural fairness, having regard for the appellant’s disability and prior case management directions regarding the hearing. There were four case conferences before the application was heard, during which the appellant was given assistance.

[21] The appellant submits that she should have had more time at the hearing in January 2023, that she should have been granted an adjournment to call her two proposed witnesses, and that she expected to be able to cross-examine the respondent’s affiant at the hearing of the application.

[22] The appellant appeals because the case management directions gave her one hour to speak to the application and she did not get that length of time. However, the appellant had a fair opportunity to make her submissions and it is therefore not an error to conclude sooner than one hour allocation from case management. Nor is it an error to curtail irrelevant submissions. It is apparent that the appellant believes that her difficult history with the prior landlord/owner and related steps regarding repairs are important. But to obtain an adjournment to call that evidence, the evidence must also be relevant to the application before the court.

[23] I see no reason to doubt the application judge’s finding that the proposed additional evidence from the two witnesses was irrelevant. Further, a cross-examination of the affiant is not part of the normal procedure for an application and was not provided for in the court’s directions prior to the hearing.

[24] Having reviewed the transcript of the hearing and considered the appellant’s submissions before me, I do not find that the appeal raises a serious question about procedural fairness even on the low threshold for that factor.

[25] For the purposes of this motion, I accept that Ms. Kealy does not wish to vacate the premises due to her disability, her other health problems, her limited financial means and the difficulty in finding another place to live. She pays $950/month and submits that a new place would cost her a great deal more. I factor all this in with respect to irreparable harm and the balance of convenience.

[26] On the balance of convenience, the respondent has been facing legal proceedings due to non-compliance with a property standards order and a Notice of Zoning Violation. This has been going on for a long period of time. The respondent understandably wants and needs to bring the property into compliance and faces increased fines for the failure to do so. Against that I accept the appellant’s submissions about the difficulty finding housing, her very limited financial means and her health problems. Further, she submits that she is current on her rent. However, she has now had about nine more months since the landlord served its Notice to Quit. While I accept her submissions to me that she has been making efforts, she has had a long period of time.

[27] I also consider the legal regime that applies to this tenancy. It is a commercial tenancy under the CTA.

[28] Having regard for all relevant factors, I am not persuaded that there should be an interim stay until the hearing of this appeal. However, I will grant a stay for an additional period of time to give the appellant a bit more time to vacate the premises.

[29] I therefore grant an interim stay to April 21, 2023, after which the writ of possession may be enforced.

Order

[30] This motion is granted in part. There shall be an interim stay until April 21, 2023. The writ of possession may be enforced after that date.

[31] Prior to April 21, 2023, upon being provided with a repair order, the appellant shall provide the respondent with reasonable access to the premises in order to complete the repairs needed to bring the property into compliance with the repair order.

[32] Given that the appellant did obtain an interim stay in her motion, albeit not for the entire period she requested, there shall be no order as to costs.

[33] The parties shall email the court with their proposed schedules for the exchange of the court materials in regard to the appeal itself. Those responses shall be provided within 30 days from today.

Matheson J.

Date: March 10, 2023