Court File and Parties
CITATION: Tulshi v. Vecchio, 2024 ONSC 2181
DIVISIONAL COURT FILE NO.: 192/24
DATE: 20240415
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MELISSA TULSHI AND BHOPAUL TULSHI, Appellants
-and-
AMORE VECCHIO, Respondent
BEFORE: F.L. Myers J.
COUNSEL: Carolina Repila, counsel, for the Appellants Sylvia LaFontaine, counsel, for the Respondent Anna Solomon, counsel for the Landlord and Tenant Board
HEARD: April 15, 2024
Endorsement
[1] This case conference was heard at my direction made March 28, 2024. I put the parties on notice under Rule 50.13 (6) of the Rules of Civil Procedure that at the case conference the court would consider making orders about scheduling of the appeal and dealing with ongoing payment of rent and arrears in the interim.
[2] On October 23, 2023, the parties agreed to consent order before the Landlord and Tenant Board that included a schedule for payment by the appellants of over $20,000 in rental arrears plus ongoing rent.
[3] In December, 2023, the landlord moved without notice to evict the tenants for breaching the agreement. The order was made on January 6, 2024.
[4] The appellants moved to set aside the eviction order on the basis that the landlord had misrepresented the status of their payments. By the time this motion was heard by the board in February, 2024, it was understood that the tenants had paid their arrears payment for December, but their December rent was late. Moreover, the tenants had not paid anything for January or February.
[5] By order dated March 11, 2024, the Board declined to set aside the eviction order.
[6] The tenants appeal to this court. Ms. Repila advised, twice, that the ground of appeal was that the landlord had misrepresented the status of the tenants’ payments to the Board so that the eviction motion should not have been heard and the order should not have been made. She pointed in particular to para. 11 of the March 11, 2024 order to say that the board stated the wrong amount of arrears even after hearing from the tenants.
[7] In my preliminary assessment, these sound like questions of fact that were raised before and decided by the board. Appeals to this court are limited to questions of law under s. 210 of the Residential Tenancies Act, 2006, SO 2006, c 17.
[8] However, this issue should be considered with submissions. No facts are required for counsel to make submissions as to whether the notice of appeal raises any issue of law in his case. Counsel for the appellants cannot rest on broad and unparticularized allegations in the notice of appeal. If the appellants submit that the board made errors of law i.e. it applied the wrong legal test to its findings of fact, they need to say so now.
[9] I will consider whether the appeal ought to be quashed for failing to raise a question of law in writing. The appellants may submit no more than five pages of submissions particularizing allegations of error of law on the issues in this case on or before April 30, 2024. The respondent may provide no more than five pages of responding submissions by May 7, 2024.
[10] In the meantime, the appellants say they are willing to pay $10,000 plus $1,000 per month on arrears in addition to keeping their rent current going forward.
[11] Looking at the October 23, 2023 settlement, the appellants were to have paid seven arrears payments of $1,978 per month from October 15, 2023 to today. As far as I can tell they made two payments. This leaves $9,890 due today. They also owed $3,650 per month for January, February, and March. I do not know if the appellants paid April’s rent.
[12] As a condition of maintaining the stay of proceedings, the appellants shall pay $9,890 to the respondent by no later than noon tomorrow April 16, 2024. In addition, the appellant will bring 2024 monthly rent instalments current for January, February, March, and April by noon on Friday, April 19, 2024. If some of those months are already paid, then only the unpaid ones need be paid by this Friday.
[13] Pending the final conclusion of this appeal, the appellants shall pay $1,978 on the 15th day of each succeeding month, commencing May 15, 2024 until their arrears are completely paid in full. They shall also pay regular monthly rental of $3,650 for May and each succeeding month.
[14] In the event that any payment set out in the prior two paragraphs is not made by 5:00 pm on the due date, the respondent may deliver to my Judicial Assistant a brief affidavit stating this fact and a draft order lifting the stay of eviction without notice to the appellants. I agree with the appellants’ own lawyer, that if the appellants wish to maintain the protection of the stay of proceedings, they must not be late with any payments.
[15] If the appeal proceeds, the appellants’ factum shall be delivered by no later than May 23, 2024.
[16] The respondent’s factum shall be delivered by no later than June 30, 2024.
[17] The Toronto Registrar of the Divisional Court is asked to provide the parties with a hearing date before a panel of three judges of the Divisional Court for an estimated two hours on a date no earlier than July 1, 2024 and to advise the parties of the date as soon as practicable.
[18] The parties will receive an invitation to upload their materials to CaseLines.
[19] The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
[20] Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
[21] Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
[22] The parties are reminded of the following:
[23] To hyperlink the indexes to all documents uploaded to CaseLines;
[24] To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
[25] During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
[26] Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf
Date: April 15, 2024