CITATION: Martel v. Purdy, 2023 ONSC 1806
COURT FILE NO.: DC-22-2726
DATE: 2023/03/17
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Gabriel Martel, Appellant (tenant)
AND
Madeleine Purdy, Respondent (landlord-moving party)
BEFORE: The Honourable Justice C.T. Hackland
COUNSEL: Roberto Aburto and Jessica Chen, counsel for the Respondent
Gabriel Martel, self represented (tenant)
HEARD: January 17, 2023 (by Zoom videoconference)
Reasons for Decision
[1] The Respondent Landlord moves to quash the Tenant’s appeal to the Divisional Court on the basis it is devoid of merit and/or is an abuse of process. This tenancy was entered into in 2012 for a one-year term and continued subsequently as a month-to-month tenancy. The Landlord’s residence and the leased property are adjoining. The parties have developed a hostile relationship.
[2] The Tenant appealed to the Divisional Court from an order issued by the Landlord and Tenant Board (“the Board”) on July 18, 2022, dismissing the Tenant’s motion to set aside the Board’s original decision issued January 12, 2022, which terminated the Tenant’s rental agreement.
[3] The dispute has a complex procedural history. The Tenant is the subject of eight orders of the Board in relation to the leased property. The Tenant has initiated parallel proceedings in the Small Claims Court and the Superior Court of Justice (CV-21-87506) against the Landlord.
[4] This dispute began in May 2021 when the Landlord entered into an agreement of purchase and sale for the property, conditional on the prospective buyer viewing the interior of the property. The Tenant learned of this and responded by refusing the Landlord’s request that he or his agent be permitted entry to the rented property in order that it could be viewed by the prospective buyer. At the same time, the Tenant stopped paying rent to the Landlord and has paid no rent to date notwithstanding an order of the Board that he do so as a condition of staying an eviction order granted by the Board.
[5] Following a hearing, the Board determined the Tenant conducted himself in a manner that substantially interfered with the Landlord’s lawful right, privilege, or interest by refusing entry to the Real Estate Agent and potential buyer to the Property on May 12, June 8, June 11, and June 16, 2021, despite receiving proper notice.
[6] To date, the Tenant has failed to comply with the conditions of the Original Order of the Board and in particular, he has and continues to deny access to the rented premises to the Landlord’s real estate agent and prospective purchasers. Further, he has paid no rent for the premises since May 2001. The Board issued an interim order requiring the Tenant to pay the lawful monthly rent to the Board in trust as of February 1, 2022. The Tenant has ignored that order and has made no rental payments in trust to the Board.
[7] The Landlord submits the Tenant’s pattern of behaviour demonstrates that he has no intention of following any orders with respect to his tenancy. The court accepts this submission. In fact, the Tenant orally advised the court at the argument of this motion, that he has no intention of paying any further rent to the Landlord because, he says, the Landlord owes him a sum of money in excess of the rental arrears arising from the fact the Landlord was wrongfully using the power metered to the Tenant and the Landlord had also caused property damage to his RV trailer.
[8] At the hearing of this motion, the Tenant further advised the court that it is his intention to vacate the premises effective July 1, 2023, and he has no intention of paying further rent to the Landlord. He says any financial issues between himself and the Landlord must await the outcome of an action he has commenced in the Superior Court. He stressed that he relies on the automatic stay of the eviction order pending an appeal provided for under Rule 63.01(3).
[9] An appeal from an order of the Board to the Divisional Court must be on a question of law alone.
[10] At paragraph 43 of the Appellant’s factum, Landlord’s counsel have prepared a chart of all of the grounds of appeal put forward by the tenant. I have reviewed this chart and the tenant’s grounds of appeal. I respectfully agree with and adopt the Landlord’s conclusion that the appeal grounds are either devoid of merit on their face or do not raise questions of law. At one point in time, the Tenant was refusing access to the rented premises due to COVID-19 concerns but his persistent and ongoing obstruction of the Landlord’s rights removes any pretext of good faith on this issue.
[11] The Tenant is abusing this process by using appeal mechanisms to delay his eviction. In Landlord and Tenant matters, an appeal may be quashed as an abuse of process where the appeal is being used as a stratagem to delay eviction, see Singh v Balogun, 2018 ONSC 7506 (Div. Ct) at para 27 and Wilkinson v Seritsky, 2020 ONSC 5048 (Div Ct) at para 33.
[12] Moreover, the Tenant has not paid any rent since May 2021 and, as noted, has advised the court that he will not do so in future and plans to vacate the premises by July 1, 2023. Current rental arrears are in excess of $25,000. This is despite the Board’s order that the Tenant is to pay ongoing rent in trust to the Board beginning February 1, 2022.
[13] In a similar case, this court found the Tenant’s continued non-payment of rent to constitute an abuse of process. As I observed in Hazlett v. Contusci, 2020 ONSC 745, “This court has recently held that it is an abuse of process to commence an appeal from an order of the Board in order to take advantage of the automatic stay to avoid paying rent due to the landlord, see Mubarak v. Toronto Community Housing Corporation, 2022 ONSC 382 (Favreau J.), in which the court stated (at para 25):
[25] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye v. Jonker, 2021 ONSC 1199 (Div.Ct) at para. 27.
Disposition
[14] The Tenant’s appeal to the Divisional Court herein is quashed on the basis that it is devoid of merit, is not based on questions of law, and is an abuse of process, being designed to continue to avoid the payment of rent. Any stay on an order of eviction from the rented premises is set aside 7 days following the release of these reasons or a new order of eviction may issue at the Landlord’s request on or after that time. However, in the event all rental arrears owing under the Board’s order (referred to in para [6] above), are paid in trust either to the Board or to the Landlord’s counsel in trust, the court will, on receipt of an affidavit attesting to such payment by the Tenant, convene a case conference to discuss a possible stay of this order.
[15] The Landlord is awarded the costs of the appeal fixed in the sum of $7,500 inclusive of disbursements and HST, payable forthwith by the Tenant to the Landlord.
Justice Charles T. Hackland
Date: March 17, 2023
CITATION: Martel v. Purdy, 2023 ONSC 1806
COURT FILE NO.: DC-22-2726
DATE: 2023/03/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gabriel Martel, Appellant (Tenant)
AND
Madeleine Purdy, Respondent (Landlord-moving party)
COUNSEL: Roberto Aburto and Jessica Chen, counsel for the Respondent
Gabriel Martel, self represented (Tenant)
reasons for decision
Justice Charles T. Hackland
Released: March 17, 2023