Citation and Court Information
CITATION: Mahdieh v. Kim, 2023 ONSC 825
DIVISIONAL COURT FILE NOS.: 634/22
DATE: 20230202
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ARASH MAHDIEH v. SOOK KYONG KIM
BEFORE: D.L. Corbett J.
HEARD: By Teleconference November 25, 2022
CASE MANAGEMENT ENDORSEMENT[^1]
[1] In this endorsement, Arash Mehdieh is the appellant/tenant and Sook Kyong Kim is the respondent/landlord.
[2] The court confirms the case management teleconference held November 25, 2022.
[3] By direction November 17, 2022, this court directed as follows:
The LTB determined that the tenant is in arrears by $36,800 as of September 20, 2022, with monthly rent accruing at $1,600 per month. This represents almost two years of unpaid rent. The notice of appeal raises an issue as to whether notice of the hearing was provided properly. The tenant was at the hearing. No issue is raised in the notice of appeal with the quantum of arrears ordered by the LTB. If rent has been unpaid for almost two years, it appears that the stay pending appeal is an abuse of process and ought to be lifted immediately. To address this concern:
The tenant disputed the arrears before the LTB. The tenant is directed to provide its statement of rental arrears to September 20, 2022, and proof of payment of any payments made since that time.
This court will not permit a stay of an eviction order to be maintained pending appeal where there are substantial arrears that remain unpaid. Tenant is asked to explain why the stay of eviction should remain in place pending appeal in light of the very substantial arrears, apparently reflecting a fundamental failure by thee tenant to meet the obligation to pay rent.
The tenant shall provide a response to this direction by emil by November 23, 2022. A case conference teleconference shall be held before D.L. Corbett J. on November 25, 2022, at 1 pm. This conference may not be adjourned unless this court orders otherwise. At this conference the court will address the issue of arrears, whether immediate payment of the arrears or a substantial portion of them may be made, and whether the stay of the eviction order ought to be lifted pending appeal.
[4] The tenant responded as follows by email on November 21, 2022:
Despite the fact that I provided evidence to the LTB member that the arrears of rent are incorrect and I had paid rent but none of evidence was accepted and it’s obviously all recorded in the transcripts which is required for this appeal.
I missed to include the arrears issue in the appeal as well which I thought I could have brought it up in the appeal’s hearing.
I think the stay on the eviction order has to stay in place until the appeal’s hearing can be concluded as there are significant errors with the arrears and the N4 notice.
[5] The court directed as follows by email on November 21, 2022:
The tenant's response fails to provide the information required by the court.
To repeat from the court's prior direction:
The tenant is directed to provide its statement of rental arrears to September 20, 2022, and proof of payment of any payments made since that time.
It is not sufficient to state that the arrears found by the LTB are incorrect and that there is evidence to this effect in the record before the LTB. The tenant is required to provide his statement of the rent arrears including proof of payment of any payments made that are not accounted for in the LTB's findings. If this information is not provided as directed, the court may proceed at the teleconference on November 25, 2022, on the basis of the findings of the LTB.
[6] On November 23 the tenant sent an email to the court to which was attached a photograph of five pieces of mail addressed to the landlord and the subject property. The covering email said that this was "evidence" upon which the tenant intended to rely at the teleconference. The tenant did not otherwise respond to the court's directions for a statement of rent, arrears, and proof of payment, prior to the teleconference on November 25, 2022.
[7] The quantum of arrears, as calculated by the LTB, now approaches two years of rent. Despite clear directions from this court, the tenant has failed or refused to provide his accounting of the amount owing. His response is that everything should wait until his appeal is heard. During the teleconference he advised that he would not be able to get financial records from his bank for a ten-business-day period and thus would be unable to establish his payments of rent until he received those documents.
[8] The obligation to pay rent is fundamental to the landlord and tenant relationship. Where a tenant has completely failed to meet this obligation on a long term basis, and refuses or fails to follow directions from this court aimed at devising fair and equitable terms for continuing the stay pending appeal, it is evident that the appellant is abusing the process of this court. An appeal to this court is not a means to continuing occupation of rental premises despite long-term failure to pay rent, nor is it a means to obtain a period of rent-free living pending appeal.
[9] I note that, in this case, it appears that the abuse of process is particularly egregious. The tenancy commenced on December 1, 2020. On the basis of the apparent arrears, the tenant signed the lease, paid a month's rent, moved in, and paid nothing thereafter, and lived without paying rent for two years to the prejudice of the landlord.
[10] During the teleconference, the tenant proposed that he would pay half the arrears by mid-December. The landlord objected to this suggestion on the basis that the tenant's conduct has been consistent and egregious, and this proposal was transparently an attempt to obtain a further period of living rent-free to the prejudice of the landlord. In some cases, I would give a tenant an opportunity to make a substantial payment on account to preserve the stay, but, in this case, I agree with the landlord. The tenant's statement to me that he believed he had paid all of his rent and would need to obtain his financial records in order to get to the bottom of any payment problem, is belied by the history of the case before the LTB. The time for the tenant to inquire into and sort out any payment irregularities has long since expired.
[11] The stay pending appeal is lifted, effective immediately, and the Sheriff is requested to enforce the eviction order of the Landlord and Tenant Board as soon as reasonably practicable. Counsel for the landlord shall provide the court with a draft order in WORD format reflecting this direction and the court will expedite issuance and entry of the order to facilitate execution of the eviction order by the Sheriff.
[12] If the tenant wishes to pursue the appeal after the eviction has been carried out, he may do so, provided that he complies with the following directions:
The tenant shall advise the respondent landlord and the court, by email, by January 20, 2022, whether he intends to continue with this appeal. If he does not wish to so do, or if he fails to comply with this paragraph, then the appeal will be dismissed without costs on request of the landlord by email.
If the tenant decides to proceed with this appeal, he shall, by email, by January 31, 2022, provide the landlord with a copy of all transcripts for the appeal, his appeal record and his appeal factum, and shall confirm with the court he has so done by email. If the tenant fails to comply with this paragraph then the appeal will be dismissed without costs on email request from the landlord.
[13] The tenant did not comply with direction #1 set out in the previous paragraph and did not confirm service of appeal materials by January 31st. The appeal is dismissed, without costs, for failure to comply with the court’s case management directions.
___________________________ D.L. Corbett J.
Decision Lifting Stay Released by email: November 25, 2022
This Endorsement Released: February 2, 2023
[^1]: Paragraphs 2-12 of this endorsement were released to the parties by email on November 25, 2022 and were effective as of that date.