CITATION: Del Condominium Rentals Inc. v. Ahmed, 2023 ONSC 584
DIVISIONAL COURT FILE NO.: 451/22
DATE: 20230123
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DEL CONDOMINIUM RENTALS INC.
Moving Party (Respondent in Appeal)
– and –
ISHTIAQ AHMED
Responding Party (Appellant in Appeal)
K. Ley, for the Moving Party (Respondent in Appeal)
No one appearing, for the Responding Party (Appellant in Appeal)
HEARD at Toronto: January 23, 2023
O’Brien J. (Orally)
ENDORSEMENT
[1] This is a motion by the Respondent Landlord seeking (1) to quash the Tenant’s appeal as an abuse of the court’s process and (2) to have the Appellant Tenant’s appeal dismissed for delay and failure to comply with a direction of the Court.
[2] The Tenant, Mr. Ahmed, rents an apartment in North York from the Landlord. Since approximately November 2021, the Landlord has sought to terminate the tenancy for non-payment of rent. The Landlord Tenant Board (“Board”) issued several orders in the matter between the parties, including an order terminating the tenancy, which was subsequently stayed. The Tenant seeks to appeal the most recent Board order, dated July 27, 2022. In that order, the Board denied the Tenant’s request for a review of an order dated May 25, 2022. It also lifted a stay of prior orders terminating the tenancy.
[3] Following a case conference on October 20, 2022, Matheson J. issued directions requiring the Tenant to pay monthly rent of $2,500.00 starting November 1, 2022 and $1,000.00 per month in respect of rental arrears. Matheson J. also required the Tenant to obtain a transcript from the hearing before the Board and file his appeal materials by November 4, 2022. She indicated that if the Tenant failed to make any of the required payments, the Landlord was permitted to bring a motion seeking to lift the automatic stay granted by this Court.
[4] When the Landlord initiated this motion before the Court, counsel for the Landlord attempted to discuss a schedule for the exchange of materials with no response from the Tenant. The Tenant was served with the material on this motion but did not file any material. Counsel advises that he has not responded to any communication from her office leading up to the motion. He also did not appear on the motion.
[5] Subsection 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 authorizes the court to quash an appeal in a proper case.
[6] An appeal that seeks solely to delay constitutes an abuse of process: Solomon v. Levy, 2015 ONSC 2556, at para. 34; Regan v. Latimer, 2016 ONSC 4132, at para. 25.
[7] The Tenant is in clear default of the direction of Matheson J.. The Landlord’s undisputed evidence is that the Tenant has not made any payment in respect of rent or arrears since June 2, 2022, that is, either before or after the direction of Matheson J. The Landlord has provided evidence of arrears of $16,411.00 as of November 2022 when the material on this motion was filed. I am advised that the arrears are now well over $20,000.00. There is no legal basis to permit the Tenant to continue to live rent-free.
[8] In addition, the Tenant has not complied with the direction to file his appeal materials. He also has not filed any materials on this motion nor appeared on this motion to provide any explanation for his defaults.
[9] In these circumstances, I can only conclude that the appeal was filed or has been continued solely for the purpose of delay and to obtain the benefit of the automatic stay of proceedings pursuant to r. 63.01(3)(a) of the Rules of Civil Procedure.
[10] In view of this conclusion, I find this to be a proper case to quash the appeal as an abuse of process.
[11] The appeal is therefore dismissed and the stay is lifted. The Sheriff is directed to give vacant possession of the rental unit to the Landlord forthwith.
[12] The Landlord seeks costs on a substantial indemnity basis in the amount of $7,500.00. Counsel emphasizes the Tenant’s lack of co-operation and failure to comply with directions to which he had consented. In my view, $7,500.00 is high for this uncontested motion. I consider costs of $5,000.00 to be appropriate. Therefore, the Tenant shall pay costs of $5,000.00 all-inclusive to the Landlord.
___________________________ O’brien J.
Date of Endorsement: January 23, 2023
Date of Release: January 23, 2023
CITATION: Del Condominium Rentals Inc. v. Ahmed, 2023 ONSC 584
DIVISIONAL COURT FILE NO.: 451/22
DATE: 20230123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DEL CONDOMINIUM RENTALS INC.
Moving Party (Respondent in Appeal)
– and –
ISHTIAQ AHMED
Responding Party (Appellant in Appeal)
ENDORSEMENT
o’brien J.
Date of Endorsement: January 23, 2023
Date of Release: January 23, 2023