Kirpichova v. Galaxy Real Estate Core Ontario LP, 2024 ONSC 3414
DIVISIONAL COURT FILE NO.: 072/24
DATE: 20240613
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: GALAXY REAL ESTATE CORE ONTARIO LP, Respondent (Landlord)
-and-
MARTA KIRPICHOVA and EMAD ELGUINDY, Appellants (Tenant and spouse)
BEFORE: Myers J.
COUNSEL: Rob L. Winterstein, for the Landlord
Marta Kirpichova and Emad Elguindy, for themselves
Morgana Kellythorne, for the Landlord and Tenant Board
HEARD at Toronto (by videoconference): June 13, 2024
ENDORSEMENT
[1] At the outset of this case conference, I reminded Mr. Elguindy that in the late 1980s, I had acted against him in a matter. I could not recall the name of the client for whom I had acted. Mr. Elguindy confirmed that he did not have any objection to me hearing the case conference.
[2] There is a somewhat complex procedural background to this matter that I need not delve into fully.
[3] The Landlord and Tenant Board found that only Ms. Kirpichova was the tenant in the rental premises where the parties reside. The board found that Mr. Elguindy was an occupant and not a tenant of the unit.
[4] The board allowed Mr. Elguindy to represent his spouse as agent before the board.
[5] Mr. Elguindy has added himself as a party appellant in the appeal from the board’s decision. Yet, the Notice of Appeal does not challenge the finding that Mr. Elguindy is not a tenant. Nor could it do so because the decision is either one of fact or mixed fact and law.
[6] Although the issue is not live on the appeal, Mr. Elguindy submitted that anyone who lives in rented premises is a tenant. That simply demonstrates his lack of knowledge of the law.
[7] The landlord submits that Mr. Elguindy adds himself to proceedings so he can purport to act for himself while really acting as legal representative of his spouse or others. He does this, allegedly, to try to avoid a prior court order precluding him from acting as a legal representative for anyone else before the courts in Ontario.
[8] On reviewing the Notice of Appeal and the specific relief sought by Ms. Kirpichova, it is plain and obvious that Mr. Elguindy has no basis to be an added appellant.
[9] Ignoring for present purposes the order preventing Mr. Elguindy from acting for others, I would not hear from him even for his spouse again in this proceeding. In the brief hour that we were together, he submitted that:
a. the Landlord and Tenant Board is corrupt. It cares only about landlords and, “does not give a damn” about tenants;
b. the landlord is a money-laundering operation;
c. the landlord’s lawyer misled the court (when he had not done so); and
d. The presiding member of the board whose decision is under appeal is a paralegal and therefore, in making her decision, she was pandering to Mr. Winterstein in order to secure future employment.
[10] The Notice of Appeal also seeks relief that includes, “[a] recommendation by this Honourable Court to the Chair of the LTB not to recommend hiring paralegals as adjudicators even if trained to do so.” There is no basis upon which this relief can even be entertained by the court.
[11] Only a lawyer may act for a client in this court.
[12] As he has no role in the appeal, I strike out Mr. Elguindy as a party appellant. As he is not a lawyer, I prohibit him from acting as legal representative for Ms. Kirpichova or appearing for her in court going forward in this proceeding.
[13] Ms. Kirpichova has brought a motion returnable at this case conference to strike the landlord’s cross-appeal or, in the alternative, to strike paragraphs from the Notice of Cross-Appeal. The motion is dismissed. The cross-appeal raises an issue of law as to whether the landlord or the tenant is entitled to receive rent paid into trust by a tenant when the tenant then fails to void an eviction order. The board’s Rule 20.6 provides for a refund of the money to the tenant. There is at least an issue as to whether rent paid into trust on account of arrears to try to void an eviction order ought to belong to the landlord to whom the arrears are owed. On the tenant being evicted for not paying the arrears in full as required by the board’s order and the lease, why would she get the money back to allow her effectively to live rent-free throughout? This may have to do with the monetary jurisdiction of the board and the interplay between the monetary limit and orders for the payment of funds to void an eviction order. But it is a legal issue as is the question of whether the board’s rule is intra vires.
[14] I do not strike any paragraphs from the Notice of Cross-Appeal. None is scandalous or inappropriate for a pleading. Mr. Elguindy also submits that they are irrelevant. They just provide background which he submits is not of any moment. I disagree. Given the procedural complexity of this appeal, to which I refer below, the background is appropriate to explain and frame the issue raised in the cross-appeal.
[15] This appeal arises from a prior application in which the landlord obtained an order evicting the tenant for non-payment of rent. While the appeal of that order to the Divisional Court was progressing, O’Brien J ordered the tenant to pay rent on a current basis including an amount towards arrears.
[16] Mr. Elguindy says Ms. Kirpichova paid over $94,000 to cover arrears of just $54,000.
[17] As soon as the Divisional Court dismissed the appeal from the eviction order, Ms. Kirpichova moved for an order quashing the eviction order under s. 81 of the Residential Tenancies Act, 2006 because it was not filed with sheriff within six months of being made as required by the statute. She also moved under s. 74 of the statute for an order that she had paid her arrears in full so as to void the eviction order in any event.
[18] The presiding member released her decision on January 30, 2024. She held that the automatic stay of the eviction order pending appeal in the SPPA effectively extended the time for the order to be delivered to the sheriff under s. 81 of the statute. This contradicts guidance provided in a board document
that says that orders must be filed with the sheriff within six months of being made despite any appeals that may be taken. Whether the board’s guide provides a correct statutory interpretation will await the outcome of the appeal.
[19] The presiding member also held that Ms. Kirpichova did not prove that she had paid her arrears in full so as to void the eviction order. The amount paid is a pure finding of fact.
[20] The presiding member therefore held that the eviction order remained extant and she ordered the $39,886.64 that had been paid into trust by Ms. Kirpichova to be released back to her under Rule 20.6.
[21] Ms. Kirpichova delivered material showing that she made payments as ordered by O’Brien J until the Divisional Court upheld the eviction order last summer. She has apparently been living rent free since then. Mr. Elguindy submits that if this is an issue for the landlord, it should go to the board and seek a new order.
[22] The landlord should not need a further order. It has an eviction order that has been upheld by this court. However, the motion before the board to void the eviction has been taken by the parties to stay the eviction order. This appeal is then assumed (subject to a ruling otherwise) to also have extended the stay on the eviction.
[23] A landlord does not have to go to the board to obtain an order for rent to be paid while a stay pending appeal remains in place. A stay pending appeal is not a licence to live rent free while the appeal process works its way to a hearing.
[24] I am guided by Justice O’Brien’s endorsement dated December 7, 2022 in the prior appeal of the eviction order. Like her, I find that in view of the substantial arrears found owing by the presiding member on January 30, 2024 and the failure of Ms. Kirpichova to pay rent since last fall, I am ordering a payment of rent or occupation rent. The continuation of the stay pending appeal is conditional on the following:
Ms. Kirpichova shall pay the monthly amount of $1,673.28 plus $2,500.00 to Galaxy Real Estate Core Ontario LP for a total of $4,173.28 on the first of each month commencing July 1, 2024.
If the tenant fails to pay the full amount ordered, the landlord may file motion material with the Court without notice seeking an order lifting the stay.
[25] Mr. Elguindy advises that the Landlord and Tenant Board negligently lost and then recently returned to Ms. Kirpichova an $8,000 bank draft that ought to have been included in the calculation of the amount she paid to void the eviction order. There was no evidence provided to me establish this. Ms. Kirpichova has not brought a motion to admit fresh evidence on the appeal. Yet Mr. Elguindy asks me to order the Landlord and Tenant Board to pay Ms. Kirpichova $10,000 for the distress its negligence has caused.
[26] Again, this request reflects Mr. Elguindy’s lack of appreciation of the substantive law and procedure. Even if the Landlord and Tenant Board were a suable entity, there is no basis on which a judge sitting in Divisional Court on an appeal from the board has jurisdiction to order payment of damages on a claim that has not been brought to a court of first instance. I reject this request.
[27] Costs reserved to the panel that hears the appeal.
FL Myers J.
Date: June 13, 2024