CITATION: Oz v. Shearer, 2023 ONSC 639

OSHAWA DIVISIONAL COURT FILE NO.: DC-23-1351

DATE: 20230125

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Eran Oz and Jennifer Oz, Landlords (Respondents)

AND:

Charles Ross Shearer and Jenna Shearer, Tenants (Appellants)

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

COUNSEL: Howard Stern, Counsel for the Landlords (Respondents)

Charles Ross Shearer, Self-Represented, Tenant (Appellant)

Sabrina Fiacco, Counsel for the Landlord and Tenant Board

HEARD: January 25, 2023

CASE CONFERENCE ENDORSEMENT

[1] A case management conference was held on January 25, 2023.

[2] The Tenants, Charles Ross Shearer and Jenna Shearer, appeal from the decision of the Landlord and Tenant Board (LTB) dated January 4, 2023.

[3] The LTB found that the Tenants have not paid rent since December 2020, and were no longer living in the subject property. Mr. Shearer acknowledged that he moved out of the property in 2019, and it has been vacant since that date.

[4] The LTB found that as of January 4, 2022, the Tenants owed the Landlords $25,678 as of January 4, 2023, and that this amount will increase to $27,565 as of January 31, 2023. This amount was calculated by the LTB after taking into account the abatement of rent for non-repair that the LTB considered appropriate.

[5] The LTB ordered that if the Tenants did not pay the full arrears by January 15, 2023, the Tenants could be evicted. No payments have been made since the date of the LTB Order.

[6] 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).

[7] The Tenants dispute that they owe any rent. They take the position that the LTB erred in calculating the abatement of rent to which they were entitled for non-repairs, and that had the abatement of rent been calculated properly, they would owe nothing.

[8] The Tenants acknowledge that the monthly rent is $2,105.76, and that they have not paid any rent since December 2020.

[9] Although the Tenants vacated the unit more than 2 years ago, they oppose the lifting of the statutory stay of the eviction because they feel that the Landlords will not make the repairs the Tenants believe are necessary if the Tenants are evicted. In short, the Tenants’ position is that the unit should remain vacant so that the Landlords cannot rent it to anyone else, even though the Tenants vacated the unit more than two years ago and have refused to pay any rent or the rental arrears ordered by the LTB during that time.

[10] This position is untenable.

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

[12] Following receipt of the Tenants’ Notice of Appeal, this case conference was scheduled. My direction to the parties required the Tenants to confirm the accuracy of the outstanding rent found by the LTB, or, if they say that they are 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 Tenants have made that are not reflected in the LTB’s calculations.

[13] 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”.

[14] 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.

[15] It is clear law that a tenant may not grant himself a rent abatement or unilaterally deduct expenses from their rent – rent is to be paid unless and until the LTB grants a rent abatement. Mr. Shearer is no stranger to this principle, the case relied on is one where Mr. Shearer unsuccessfully advanced the same argument he tried today: Shearer v. Oz, 2021 ONSC 7844, at para. 13.

[16] The LTB has found that, even after the rent abatements were calculated, the Tenants owed over $25,000 in rent arrears, and the Tenants have not paid any rent since that finding. They cannot refuse to pay rent in the hope that their appeal will be successful.

[17] In these circumstances, with no rent having been paid for over two years, and the unit having been vacated, the statutory stay pending appeal must be lifted unless the Tenants pay the entire rent arrears owing. Otherwise the balance of convenience weighs so strongly in favour of the Landlords that the eviction should not be delayed for the appeal process to run its course.

[18] The Tenants did request a period of time to pay the rental arrears before the stay of the eviction Order is lifted. I have agreed to give the Tenants until February 1, 2023 to make payment of the arrears in full, or the stay of the eviction order will be lifted.

[19] The Tenants also advise that they do not require the transcripts of the LTB hearing for the purposes of the appeal, and that they will be able to perfect the appeal by February 13, 2023.

Conclusion

[20] This Court Orders:

a) The Tenants shall perfect their appeal by February 13, 2023.

b) The Landlords’ reply material shall be served and filed in accordance with Rule 61.12 of the Rules of Civil Procedure.

c) If the LTB intends to participate in the appeal, it shall advise the parties and serve any responding material within 2 weeks of the receipt of the Respondent Landlords’ material.

d) The Tenants shall pay the sum of $27,565 to the Landlords’ lawyer, Mr. Howard Stern, by February 1, 2023 at 4:00 p.m., failing which the stay of the enforcement of the eviction order of the LTB shall be lifted. Payment shall be made in a manner that proof of payment may be provided to the Court.

e) The Tenants shall pay the monthly rent of $2,105.76 by 4:00 p.m. on the first day of each month commencing February 1, 2023, to the Landlords’ lawyer, Mr. Howard Stern, failing which the stay of the enforcement of the eviction order of the LTB shall be lifted. Payment shall be made in a manner that proof of payment may be provided to the Court.

f) If payment is not made in accordance with paras. d) and e) above, the Landlords may prepare and forward forthwith a draft order lifting the stay of the eviction order, in WORD format, for issuance.

Justice R.E. Charney

Date: January 25, 2023