Court File and Parties
CITATION: Green v. Ventura, 2024 ONSC 2536
DIVISIONAL COURT FILE NO.: 191/24
DATE: 20240501
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Chidugam John Green, Appellant
-and-
Stephanie Ventura, Respondent
BEFORE: FL Myers J
COUNSEL: Stephanie Ventura, for herself in writing
READ: May 1, 2024
Endorsement
[1] Mr. Green appeals an eviction order made by the Landlord and Tenant Board due to non-payment of rent. He submits that the board held a procedurally unfair hearing because the presiding member refused to allow him to have his fair say.
The Directions to Pay Rent and Arrears Pending the Appeal
[2] On April 16, 2024, I heard both parties and counsel for the board at a case conference. I made the following directions after the case conference:
I heard a case conference on April 16, 2024 with the parties and counsel for the LTB.
The appellant tenant agrees with the LTB finding that his arrears were $14,686 to December 15, 2023 and that his monthly rent is $2,350. As of January 16, 2024, his obligation was $14,699.36 plus $77.26 per day. The landlord says that the tenant currently owes her more than $26,000.
The tenant wants more time to repay his arrears. He recognizes that he needs to keep his rent current too. The tenant says that his mental health and the poor job market has left him in a very difficult position. He has a part time job and he is hopeful of resuming his business this summer. He already has one booking. The appellant
says that the board member at the LTB cut him off and did not let him make his full submissions. It is not clear what he could say to provide a response to the fact that he has not paid any rent at all for a year.
The landlord is an individual. She is pregnant and about to lose much of her income when she goes on maternity leave. She is sympathetic to the tenant’s problems and has agreed previously to consensual payment plans. But she is not able to give him more time. The tenants was not able to meet the terms of the payment plan to which he agreed at the LTB. That was the basis for the eviction order in January of this year. The landlord says she has run out of time as she needs rent on her unit.
I do not doubt for a minute that the tenant has mental health and job problems as he says. But he has no basis to require the landlord to pay for his lodgings while he tries to find a better way to support himself. If the stay of proceeding continues without the tenant paying rent and arrears, it will work an unjust hardship on the landlord.
I order as follows:
The appellant shall deliver his appeal book and factum before May 30, 2024.
The respondent shall deliver her appeal book, if any, and factum by June 30, 2024.
The LTB shall deliver its factum before the end of July, 2024.
Subject to the issues that follow, this appeal shall be scheduled for two hours in the fall, 2024.
In the interim, the tenant/appellant and shall pay the landlord $%2,350 rent for April, 2024 by 12:00 noon April 19, 2024. Rent was due on the 16th. The appellant shall pay regular rent of $2,350 per month on the 16th of each succeeding month without fail. The appellant shall also pay the landlord $5,000 on the first of May and on the first day of each succeeding month until his arrears are fully paid. If the parties disagree on the final amount outstanding, they may schedule a case conference at which each will submit their statements of the accounts between them and a judge will decide how much remains outstanding pending the hearing of the appeal.
If the tenant fails to make any of the payments required in the prior paragraph, the landlord may move in writing to lift the stay of the eviction order without further notice to the tenant. The tenant needs to understand that he is not to miss a payment or to be late. He agrees that he owes the landlord money. That is not the issue on appeal. But he cannot use the appeal to keep the eviction at bay if he fails to pay his just due.
The parties advise that the landlord has already moved to quash the appeal in writing. The tenant has already responded. Accordingly, I will review this motion as soon as I can obtain access to the material the parties delivered.
[3] It is easy to have empathy for someone who cannot make ends meet. But Mr. Green is living in the landlord’s condominium unit and not paying for it. He accepts that the arrears as set by the board are correct.
[4] April rent was due on the 16th. Having paid no rent for months prior, it is wholly inappropriate for Mr. Green to stay in the unit without keeping his rent current while his appeal proceeds. If the board erred and did not hear him fully as he submits, that still does not excuse the failure to pay rent for January through to this month after the board released its decision.
[5] Fearing that Mr. Green might be trying to use the court’s process (particularly the stay pending appeal) just to remain in his unit for free while the appeal is heard, I set terms for him to pay his rent when due and to pay his arrears as conditions of maintaining the stay of proceedings.
[6] After the case conference, the Registrar also provided me with the landlord’s motion to quash the appeal and Mr. Green’s response. I will return to that below.
The Tenant wants More Time to Pay; the Landlord moves to Lift the Stay
[7] Several hours after receiving my directions, Mr. Green sent an email to the court as follows:
I am in agreement with the above but I have a minor request to alter the payment dates for the arrears. Can you bring this request before Justice Myers? I request that April's rent payment be paid by noon, Monday April 22nd. Ongoing rent will be paid on the 16th going
forward as stated. I also request that the arrears payments should be made on the 30th of each month beginning May 30th, and that if possible, that this amount be reduced to $2500.
This payment plan will be a lot more feasible for me. [Emphasis added.]
[8] On April 19, 2024, I directed the registrar as follows:
Please advise Mr. Green that I direct that if he wishes to ask the court to amend its directions, he should ask for a case conference or bring a more formal motion. A case conference is informal before Myers J. A motion is a formal proceeding on evidence and may be heard by whichever judge is sitting on the date of the hearing. In either case, he is to discuss it in advance with the responding party to try to settle the issue on consent or to at least obtain agreement on dates for a proposed conference or motion hearing.
[9] At 1:05 p.m. on April 19, Ms. Ventura sent an email to the court advising that Mr. Green did not pay April rent by noon that day as ordered. She asked for an order quashing the appeal.
[10] I had the Registrar respond to Ms. Ventura requiring an affidavit to provide evidence to support her assertion that the tenant had not paid April rent as directed. Moreover, I directed that the affidavit must advise of any payment or attempt to pay made up to the time the affidavit is sworn. This would put Mr. Green to the test in light of his request to defer April rent from Friday the 19th to Monday, April 22, 2024.
[11] On April 23, 2024, Mr. Green requested a case conference to finalize a more feasible payment plan.
[12] A little later that day, Ms. Ventura delivered an unsworn affidavit advising that Mr. Green did not pay rent or attempt to do so up to the time of swearing of her affidavit that day. She delivered a sworn version on April 25, 2024 confirming that Mr. Green had still not tendered April’s rent.
The Motion to Quash the Appeal
[13] In the motion to quash the appeal, the landlord simply says that the tenant had ample time to state his case before the board. The tenant responded denying this. He says he had more that he wanted to say especially regarding his efforts to propose payment plans and to raise money from the Toronto Rent Bank for that purpose.
[14] Mr. Green asked the Landlord and Tenant Board to reconsider the eviction order. By decision date March 19, 2024, Landlord and Tenant Board Member Del Vecchio found:
Breach of the previous order
- The Tenant did not dispute that he failed to meet a condition specified in the order issued by the LTB on December 19, 2023 with respect to application LTB-L-054274-23. The Tenant failed to pay the lawful rent for December 2023 on or before December 29, 2023.
The surrounding circumstances
The Tenant stated that he was expecting money from a friend to make the December rent payment which fell through. The Tenant also stated that he has been out of work eight to nine months and just recently got a work from home job. He believes that going forward he is able to pay the accruing rent. However, he will need until June 2024 before he can make payments towards the arrears. He stated he is barely able to afford food and is behind with utility and internet services bills. He also stated that he cannot afford to move and has no where to go.
The Landlord stated that this tenancy began in December 2022, and the last full rent received was in January 2023. She understands that the Tenant lost his job, however she has tried to work with the Tenant for the last year. She stated that he has offered multiple payment plans and failed to meet all of them resulting in the rent arrears currently being over $20,000.00. She also stated that she is pregnant and due to go on maternity leave shortly, and has a two year old in daycare. She stated that while on maternity leave her income will be reduced by half. She further stated that she will no longer be able to carry the mortgage and other expenses on the property without receiving the rental income and has already had to defer the payment of the property taxes.
After considering all of the circumstances of the parties, I find that it would be unfair to set aside order LTB-L-101554-23. The Tenant has not made any payments to the Landlord pursuant to order LTB-L-054274-23 issued on December 19, 2023 which was made on consent of the parties. The rent arrears owing have increased since
this application and the Tenant’s motion were filed. The current rent arrears owing are significant and the Tenant is not able to pay anything towards this amount until June 2024, which is not fair nor reasonable in these circumstances.
Analysis
[15] The most telling point is that this tenant does not pay rent. Even while agreeing that he must keep his rent current during this appeal, Mr. Green has not paid April’s rent. Rent was due April 16, 2024. I directed that he pay it by April 19, 2024 at noon. He requested an extension of time to pay April rent from last Friday to Monday the 22nd as it would be “more feasible” for him. I have yet to hold a further case conference or to amend the directions. Yet, here it is Wednesday, May 1, 2024, and Mr. Green has still not paid his April rent.
[16] I note as well that the tenant’s notice of appeal raises no issue of law that can succeed in invalidating his eviction in light of his admitted arrears. He sought reconsideration based on his hope to receive money to start paying down his arrears and his view that he had nowhere else to go.
[17] Mr. Green breached the payment schedule to which he agreed before the board. Under that agreement he was ordered evicted without further notice to him. He paid no rent while challenging the eviction order. He paid no rent through the reconsideration process. Now he has failed to pay on the date that I ordered and even by the extended date that he sought. His personal circumstances are unfortunate. But no amount of procedural unfairness at the hearing at which Mr. Green sought to set aside the board’s eviction order will form a basis to require the landlord to keep providing him exclusive possession of her property for free.
[18] I therefore quash the appeal in accordance with the landlord’s motion. The appeal cannot possibly succeed and I am satisfied that it is not brought in good faith. With the appeal quashed, the landlord is no longer stayed form enforcing the board’s orders.
[19] If the appeal continued, I would lift the stay in any event. It is utterly unfair for Mr. Green to continue to have the benefit of the court’s stay of the eviction order without keeping his rent current and paying down his admitted arrears. This is an example of a tenant gaming the system. Such inequity cannot be tolerated.
Date: May 1, 2024