Court File and Parties
CITATION: Minto Apartment LP v. Johnston, 2023 ONSC 822
DIVISIONAL COURT FILE NOS.: 467/22
DATE: 20230202
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MINTO APARTMENT LP v. ANDREW JOHNSTON AKA MARK ANDREW JOHNSTON AND MORGAN MEIGHEN ASSOCIATES
BEFORE: D.L. Corbett J.
HEARD: In Chambers, In Writing
CASE MANAGEMENT ENDORSEMENT[^1]
[1] In this endorsement I set out the case management history in this matter that led to summary dismissal of this appeal for abuse of process on September 13, 2022.
[2] On August 19, 2022, the appellant served a Notice of Appeal and Requisition for Stay from the decision of the LTB dated August 18, 2022, denying a request to review the LTB decision dated August 2, 2022.
[3] The LTB found that the appellant had been previously evicted by this landlord from another unit and obtained the current unit fraudulently. Once the fraud was discovered, the appellant remained in the unit without paying rent.
[4] On August 20, 2022, this court directed as follows:
The LTB terminated the tenancy on the basis of fraud.
The Notice of Appeal does not raise any issue that would displace the core finding of the LTB.
The LTB also found that there are substantial unpaid amounts on account of or in lieu of rent.
The tenant is asked to explain, by email copied to the respondents, why the stay pending appeal ought not be set aside and/or the appeal quashed on the basis of abuse of process on the following bases:
There is no ground of appeal alleged in respect to the core basis upon which termination was ordered (fraud); and
The tenant appears to have substantial unpaid obligations to the landlord. In this regard, the tenant is directed to advise the court of (i) the payments made by the tenant since the termination date in March 2022; (ii) the balance the tenant says is owing since the termination date; and (iii) the basis on which the tenant claims to be entitled to remain in the premises if there are substantial amounts unpaid.
[5] On August 22, 2022, the appellant responded, asking about the deadline for a response to the court’s direction, and indicating that he was going to retain counsel. By responding direction on August 22, 2023, the court directed as follows:
The court requires a response forthwith and in any event no later than 12 noon on August 26, 2022.
[6] Counsel for the respondent advised the court as follows on August 22, 2023:
Further to your email of August 22, 2022 with respect to the direction of advice from Justice Corbett, we confirm that the Appellant has not paid any rent to our client from the beginning of the tenancy. This is a daily tenancy at rent of $312.34 per day and the arrears of rent to August 22, 2022 is $71,525.86.
The Respondent requests that the Stay be lifted as this is one of those cases that the Appeal has been filed as an abuse of process and the ongoing occupancy of the Appellant in the Rental unit is a continuation of the fraud perpetrated upon our client by the Appellant.
The Respondent thanks the Court for its consideration in this regard.
[7] The appellant responded to the court’s direction on August 26, 2023 as follows:
As a partial reply to Justice Corbett’s request and prior to me retaining proper legal counsel, it is August in Ontario and Legal Counsel as so are the Appellate courts on vacation. I therefore firstly ask that this argument as to the validity of the Appeal be at minimum postponed until after Labour Day when proper Legal Counsel can be retained by the Tenant (Mark Andrew Johnston). However; as a layman, and without prior legal direction I Mark A. Johnston submit my reasons for why this matter should be put back to a new trial and an application by the Landlord be properly submitted so I and my counsel can properly address the issues at hand. The landlord and his legal counsel did not follow proper procedure for me to be properly prepared for a defence. Therefore, any findings of the Tribunal should be quashed and the Landlord “Minto” and his “EXPERIENCED” legal counsel Mr. Martin Zarnett refile a new Application. If not then a travesty of justice will occur at the most basic of legal procedures and set a new precedent for the Landlord Tenant Tribunal process. Due process must still prevail so all tenants may get a proper hearing. This was not Mr. Zarnett’s first time in front of a Tribunal. He knew he had filed an incomplete application however; still chose to bully his way with this matter without the proper notification to the Tenant therefore not allowing the Tenant to properly direct his legal counsel or prepare any documentation to refute such allegations.
The Member made a serious error in allowing the Landlord to present arguments related to allegations which were not specified in the Notice of Termination or referenced in any disclosure, thereby not providing the Tenant an opportunity to know the case against him. As is required by Ball v Metro Capital Property and further breaching the rule of natural justice.
The N5 stated that “the Tenant provided fraudulent documents to the Landlord and obtained the rental unit as a result of fraud”. No mention was made of non-payment of rent. No documents were disclosed to indicate the Landlord would be alleging non-payment or in what amount. Therefore, not allowing the Tenant to be prepared to argue any of these statements.
The Member referenced non-payment in paragraphs 12 and 14 of the determinations within the Order, and paragraph 14 includes the statement, “The Tenant continues to perpetuate this fraud by not paying for the rental unit”. This was alleged by the Landlord in oral testimony; however, the Tenant was unable to prepare or present any form of a response. This is a violation of his Rights under the Charter. Non-payment is an essential element of the alleged crime (obtain housing by fraud), without which there is no crime and no fraud. These are the basic rules of law and the Canadian Charter of Rights and Freedoms.
The Member also ordered that the Tenant shall pay $312 per day beyond the termination date in the N5 notice of March 25, 2022 – an amount of $40,560 to the date of the Order. This deviates from the common practice of the Board to award daily compensation from the date of the eviction order rather than the termination date listed in the initial notice. While the daily compensation order may be technically justified, the way in which it was used in this instance prevented the Tenant from preparing to make any form of submissions. Unlike an L1 application where an L1/L9 update form is required in advance of the hearing, no such disclosure was required or provided in this case. Again, a clear violation of the Tenants Rights.
At the hearing the Landlord’s experienced legal counsel Mr. Martin Zarnett (representative) argued that the Tenant could have appeared to provide verbal evidence. While this may be true, it does not negate the obligation of the Landlord to provide adequate specifics to allow the Tenant to know the case to meet or reduce the onus of the landlord to prove all elements of their case. Where a tenant receives a Notice of Termination which is deficient in some regard or observes that the Landlord has not provided documentary evidence on certain points, they may make an informed decision with the legal counsel representatives as to whether or not their presence is required at the hearing or whether they can attend to other matters as is permitted. Once the Tenant has made that choice, allowing the Landlord to make new allegations at the Hearing prevents the Tenant from receiving advice from or giving instructions to their legal counsel representative, or preparing evidence to refute the Landlord’s assertions.
These are the most basic of Canadian Rights under the Charter of Rights and Freedoms as is set out for every Canadian to live by and that the courts must abide by.
[8] On August 26, 2022, the parties were advised that this court was directing the Registrar to issue notice pursuant to R.2.1 that the court was considering dismissing the appeal as frivolous, vexatious and an abuse of process:
The Registrar is directed to issue a notice pursuant to R.2.1 that the court is considering dismissing the appeal as frivolous vexatious and an abuse of process for the following reasons:
The tenant has failed to address the central issue raised by the court about the merits of the proposed appeal as it relates to termination of the tenancy. The LTB found the tenancy was obtained by fraud and the tenant has raised no appealable issue in respect to this conclusion, which is the basis of the termination order. On this basis it appears that the portion of the appeal challenging the eviction orer is without substance.
It appears that the tenant owes very substantial arrears and has made no rent payments, a hallmark of abuse of process.
[9] The appellant responded by email on September 13, 2022 to the R.2.1 notice as follows:
The Registrar is directed to issue a notice pursuant to R.2.1 that the court is considering dismissing the appeal as frivolous vexatious and an abuse of process for the following reasons:
- The tenant has failed to address the central issue raised by the court about the merits of the proposed appeal as it relates to termination of the tenancy. The LTB found the tenancy was obtained by fraud and the tenant has raised no appealable issue in respect to this conclusion, which is the basis of the termination order. On this basis it appears that the portion of the appeal challenging the eviction order is without substance.
It is still my argument that due process was never done in the initial filing and subsitant (sic) hearing at the Tribunal. The fact remains that at no time was any fraud committed on my behalf the landlord had my legal name from the start of the initial conversations. MARK ANDREW JOHNSTON. Proper Ontario Identification was provided on numerous occasions to the landlord as is found in an attachment to this email.
The legal challenge was not met and the Due Process was not followed. A new Hearing MUST be ordered so that these concerns can be met. If not then the Process that the Tribunal is required by law to follow becomes nothing more than a farce. Travesty of Justice at the most basic of levels of law in this Province and country.
[10] By email dated September 13, 2022, the court ordered as follows:
The tenant has failed to address the issues raised in the R.2.1 notice and in particular has failed to address the abuse of process involved in non-payment of rent. As a result of this abuse of process, the stay of enforcement of the eviction order is lifted immediately, and the Sheriff is requested to enforce the eviction order as soon as reasonably possible.
In addition, the appeal itself is dismissed as frivolous, vexatious and an abuse of process.
These are distinct orders - lifting the stay for the abuse of process of bringing an appeal to extend a period of non-payment of rent where substantial arrears are owed - and dismissing the appeal for failure to state an appealable ground in this court.
The landlord may prepare an order in WORD format for issuance and entry by the court.
[11] The respondent’s counsel provided a draft order to the court on September 13, 2022, which was issued, entered, and provided to the parties that same day, thus concluding the matter in this court.
[12] This endorsement is released memorializing the case management process in this court to show that, in an appropriate case, such as this one, a statutory stay upon an appeal from a decision of the LTB will be set aside summarily in cases of obvious abuse of process. On the findings of the LTB, Andrew Mark Johnston obtained the premises by fraud, paid nothing on account of rent, and failed to address with this court the two key issues for maintaining the stay pending appeal and pursuing the appeal on the merits. An appeal to this court may not be used to perpetuate this sort of conduct.
___________________________ D.L. Corbett J.
Dismissal Decision Released by email: September 13, 2022
This Endorsement Released: February 2, 2023
[^1]: The order lifting the LTB stay and dismissing the stay was released to the parties September 13, 2022, and was effective that day.