Court File and Parties

CITATION: Michael v. Kaiser et al, 2024 ONSC 4326

DIVISIONAL COURT FILE NO.: 258/24

DATE: 20240802

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jay Michael, Tenant/Appellant

AND:

Aria Norma, Jimenez Kaiser, Ricardo Camarena, Landlords/Respondents

BEFORE: Shore J.

COUNSEL: Self-represented Appellant

Timothy M. Duggan and Alexander H. Etkin, for the Landlords/Respondents

HEARD at: Toronto, In Writing

Endorsement

[1] The Landlord is the landlord of the residential property municipally known as Suite 1406, 511 The West Mall, Etobicoke, Ontario M9C 1G5.

[2] The Tenant/Appellant, Jay Michael (the “Tenant”), is the tenant of the Rental Unit. 3.

[3] The Tenant gave notice to terminate the tenancy, effective June 30, 2023. Relying on the termination notice, the Landlord obtained an eviction order, dated July 17, 2023. The Tenant moved to set the order aside, but it was upheld in a decision dated February 27, 2024. Reconsideration of this order was denied on March 26, 2024. The Tenant is seeking to appeal these last two decision.

[4] In addition, the Landlord also sought to end the tenancy because the Tenant was in arrears of rent. He has not paid rent since May 2023. On May 6, 2024, the LTB found that the outstanding rent was $9,536 as of April 30, 2024, and that the monthly rent is $850.

[5] On or about April 25, 2024, the Tenant commenced the within appeal in respect of the abovementioned LTB Orders, with the result that the LTB Orders were automatically stayed.

[6] On June 3, 2024, I gave a direction that:

As a condition of continuing with the appeal, the Tenant shall pay the ongoing rent, as of June 1, 2024, and by the first day of each month thereafter, and $4,768 towards the arrears owing as at April 30, 2024, by June 7, 2024. If the Tenant fails to make the payments on time the Landlord may bring a motion, in writing, to quash the appeal.

[7] The Tenant failed to pay the ongoing rent and the Landlord brought a motion to quash the appeal. The Respondent submits that because there is an automatic stay upon filing of the appeal, the Court does not have jurisdiction to require ongoing payments of rent.

[8] The Court has jurisdiction to require ongoing payments of rent as a condition of continuing a stay of enforcement of LTB orders. Further, as set out in Schwartz v. Fuss, 2021 ONSC 1159 at paragraph 14:

It is well settled that unjustified non-payment of rent while under the purported protection of the statutory stay of enforcement of LTB orders pending appeal, can be regarded as an abuse of process and is otherwise sufficient grounds to warrant the lifting of the stay. There is no authority, statute or regulation that permits a residential tenant to withhold ongoing rent pending an appeal. As the Divisional Court stated in Sivakova v. Timbercreek Asset Management, 2016 ONSC 281 at para. 4, “[a] tenant is not entitled to live in a rental unit free pending an appeal”.

[9] The Divisional Court may quash an appeal in circumstances where the appeal is manifestly devoid of merit or if it is an abuse of process, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.).

[10] From the outset of these proceedings, the Tenant was aware that the Court would require ongoing payment of rent as a condition of continuing the stay (see the direction of Justice O’Brien, dated May 13, 2024, and my endorsement of June 3, 2024). He has made no payments towards the ongoing rent. The Tenant’s arrears are now over $14,000.

[11] No documents have been uploaded to Case Center to perfect the appeal, also as required under my direction of June 3, 2024.

[12] The tenant’s failure to pay rent or move forward with his appeal is an abuse of process. I find that he is “gaming” the system to live rent free under the protection of a statutory stay.

[13] For these reasons, the appeals are quashed and the stay of the orders of the Landlord and Tenant Boards bearing LTB file nos. LTB-L052014-24-SA and LTB-L-052014-SA-RV are lifted.

“Shore J.”

Date: August 2, 2024