Court File and Parties

CITATION: Badamshin v. Kim, 2024 ONSC 3463

DIVISIONAL COURT FILE NO.: 172/24

DATE: 20240618

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ARSEN BADAMSHIN, Moving Party

AND: GRACE KIM, Respondent to Motion

BEFORE: Matheson J.

COUNSEL: Self-represented Moving and Responding Parties

HEARD at Toronto: June 18, 2024, in writing.

Endorsement

[1] The moving party landlord seeks an order lifting the stay of the eviction order in this appeal.

[2] The appeal arises from a decision of the Landlord and Tenant Board (LTB) dated Feb. 8, 2024 (the LTB eviction order), and the related review decision dated Feb. 15, 2024 (LTB File Number LTB-L-060827-23; 23-RV) regarding 304-1121 Steeles Ave W, Toronto ON M2R 3W7 (the premises).

[3] As set out in the above LTB eviction order, the tenancy was terminated due to substantial non-payment of rent – then about $19,000. The tenants are named in the LTB orders, specifically Imseop Kim and Young Sook Park. The tenants were given an opportunity to pay the arrears and void the eviction order and did not do so. They requested a review, which was unsuccessful.

[4] The appeal to this Court was commenced in March 2024 by a Grace Kim, who is not named as a tenant in the above LTB proceedings. The moving party attests that Grace Kim is the daughter of Imseop Kim, who is one of the tenants as set out in the LTB orders. The moving party therefore submits that Grace Kim has no right to bring an appeal or request a certificate of stay of the eviction order.

[5] There are therefore two grounds put forward to lift the stay – the unpaid rent and the lack of a proper appellant.

[6] On the subject of unpaid rent, as set out in case conference directions of Justice O’Brien, at a case conference on May 1, 2024, the purported appellant did not deny that there were substantial arrears owing but did not propose a payment plan. Justice O’Brien directed a payment plan, including the payment of the monthly rent commencing in May 2024 and payments toward the arrears. Justice O’Brien directed that if any of the payments were not made, Mr. Badamshin could file a motion with the Court seeking an order lifting the stay of the eviction order.

[7] The required payments were not made, giving rise to this motion. According to the moving party, the rental arrears now total almost $30,000. Further, no responding court materials were delivered on this motion despite a reminder from the court office. The moving party’s evidence is uncontested.

[8] The failure to comply with this Court’s directions for the resumption of monthly rent payments and payments towards a very substantial arrears is, by itself, sufficient to grant this motion and lift the stay. It is well-established in this Court that a party cannot benefit from a stay of an eviction order while failing to pay the monthly rent and accumulating a large rental arrears. This is such a case. The purported appellant has provided no explanation. This is unacceptable.

[9] The moving party has also submitted that the appeal itself is flawed because it is not brought by a party to the LTB order at issue. There does appear to be an issue in this regard. A non-party to an LTB order cannot simply commence an appeal of that order and obtain a stay of the eviction. Other steps would be required, have not been attempted in this case and may in any event not be successful. I have therefore made an order in that regard as well.

[10] With respect to the underlying appeal, Grace Kim shall provide, within two weeks from today, the basis upon which she purports to appeal LTB decisions to which she is not a party. Justice O’Brien also set a schedule for the delivery of appeal materials, under which the appellant’s court materials were due on June 15, 2024. If Ms. Kim has failed to meet that schedule, she shall also provide an explanation for that breach. After this two week period, the moving party may also email the Court with his position regarding whether the appeal should be dismissed, after which the Court may give directions in that regard.

[11] I grant this motion as follows: The stay of the LTB eviction order is lifted as of July 2, 2024. Vacant possession of the above premises shall be provided by July 2, 2024, failing which the moving party may arrange for the Sheriff to enforce the LTB eviction order. The moving party may prepare a form of order and submit it to the Court office for approval without first obtaining approval as to form and content from Ms. Kim.

Matheson J.

Date: June 18, 2024