CITATION: Homesky Properties Inc. et al. v. Sugunan, 2024 ONSC 442
DIVISIONAL COURT FILE NO.: 405/23, 472/23, 710/23, 720/23 and 024/24
DATE: 2024-01-22
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: HOMESKY PROPERTIES INC. CAPREIT LIMITED PARTNERSHIP RENATO DEVELOPMENTS 3201 LAWRENCE AVENUE EAST APARTMENTS 30 GILDER DRIVE APARTMENTS Landlords/Respondents
AND: VELAUTHAPILLAI SUGUNAN Tenant/Appellant
BEFORE: Leiper J.
HEARD: at Toronto on January 19, 2024
Date of Decision: January 22, 2024
Counsel as Agent for Homesky: P. Portman Counsel for Capreit Limited Partnership, Renato Developments, 3201 Lawrence Avenue East Apartments and 30 Gilder Drive Apartments: S. Toole Counsel for the Landlord and Tenant Board: E. Fellman Agent for Mr. Sugunan: Weslie Phang, Paralegal
ENDORSEMENT
BACKGROUND
[1] The court held an in-person case management conference to address five appeals brought by the same tenant, Velauthapillai Sugunan, in relation to tenancies at five different rental units in Toronto. The tenant, Mr. Sugunan, did not appear. Mr. Sugunan’s agent, paralegal Mr. Phang attended as required, as did counsel for the Landlord and Tenant Board and counsel for the landlords in each appeal.
[2] Each appeal relates to tenancies in which the named tenant has been ordered evicted by the Board. Each appeal involves substantial arrears of rent. In the proceedings before this court, and before the Board, the tenant has a longstanding pattern of not attending hearings and instructing Mr. Phang to attend and request adjournments because of illness, sometimes with a medical letter, and on other occasions without any evidence. The nature and severity of the illness appears to change depending on the proceedings, but in each case this information has been conveyed to the Board or the court by Mr. Phang. In four of five of these appeals to the Divisional Court, the tenant sought and received a certificate staying the order of eviction.
[3] At the beginning of today’s case conference, Mr. Phang provided the court with a copy of an email he had received from Mr. Sugunan asserting that he was not able to attend the case conference because he is ill. The email also represented that Mr. Sugunan had borrowed money from a “female cousin” to make a payment arrangement to secure the units. His email includes a payment plan for three of the units. In respect of each unit, the tenant’s email describes what each unit is “projected to make.” Mr. Sugunan made no proposal to pay the arrears for the unit involved in appeal 024/24, re 30 Gilder Drive. Counsel for the landlord in that proceedings advised the court that the eviction order relative to that unit has been carried out and the unit is now vacant.
[4] Today’s email from the tenant was the first indication in any of his court filings, evidence before the Board or representations from his agent, Mr. Phang, that he is not the occupant of the units and that he is earning income from these units.
[5] In contrast, at a hearing held on June 8, 202, Mr. Sugunan participated and testified about his circumstances. On that date, Mr. Phang acted for Mr. Sugunan. Mr. Phang sought an adjournment based on a doctor’s note which stated that Mr. Sugunan had been advised to rest at home. The Board refused to adjourn the hearing, reasoning that the tenant could call in to the hearing and participate. Mr. Sugunan called in to the hearing and testified that he lived in the unit at 945 Midland Avenue and had done so for the past two years. He testified that he had lost his job during the pandemic and was not currently employed, but that his health was improving, and he expected to be working again within two months. The tenant did not disclose that he was earning income from any other units. In its reasons, the Board noted that the tenant’s evidence was contrary to Mr. Phang’s representations that the tenant’s “health condition [was] deteriorating.” (Homesky Properties Inc. v. Velauthapillai Sugunan, 2023 ONLTB 44457 at paras. 3 and 19.)
[6] A review of the records filed in the other appeals reveals that the tenant, aided by Mr. Phang had ongoing eviction proceedings before the Board all with similar representations:
- In the Renato Developments matter, (Divisional Court file 710/23), on February 28, 2023, the Board adjourned the hearing after Mr. Phang provided a doctor’s note stating that Mr. Sugunan was ill and needed to rest. The arrears owing on the unit at that time were found by the Board to be $16,236.
- On July 14, 2023, before Corbett, J. in the matter involving Homesky Properties, Mr. Phang called in to say he was not retained (although he had acted for the tenant before the Board in that matter), that the tenant was too ill to call in to the teleconference, and proposed part payment of the arrears, by relaying information from the Mr. Sugunan to the presiding judge.
- In the Capreit Limited Partnership Order by the Board dated July 20, 2023, (Divisional Court file 472/23), the Board ordered eviction after refusing an adjournment sought by Mr. Phang for the tenant due to the tenant’s illness. The Board found that arrears were owing of $28,701.44.
- On November 22, 2023, at the scheduled appeal in the Capreit Limited Partnership appeal, Mr. Phang attended and told the court that the tenant was too ill to attend. He provided two medical letters in support of that request and advised the court that his client was seeking financial help from his family to pay the arrears. Mr. Phang did not advise the court that his client was earning income from units rented in his name, or that there were concurrent proceedings before the court.
- On December 21, 2023, the Board ordered eviction in the 30 Gilder Drive matter (Divisional Court file 024/24) and noted that three prior hearings in that matter had been adjourned due to tenant illness. The arrears as of August 31, 2023, were found to be $15,670.05.
[7] In none of the appearances or in the materials filed on behalf of the tenant by Mr. Phang have either the court or the Board been advised of subtenants who could be affected by orders to vacate the units, income being earned by the tenant to pay rent or arrears, or accurate information as to where the tenant, Mr. Sugunan was residing. Each notice of appeal prepared and filed by Mr. Phang for the tenant includes an address for the tenant that is the unit in question. I raised the question of his professionalism with Mr. Phang and described the court’s concerns in that regard.
[8] Counsel, Mr. Toole, acts for four of the five landlords. Mr. Toole advised the court that his client provided informal notice to some of the occupants of the units in question. No subtenants or occupants attended today’s case conference. Mr. Toole described the use of some of the units as being used for student rentals with dividers and air mattresses used to house up to 6 or 7 individuals in 2-bedroom units. On behalf of his clients, Mr. Toole seeks to quash four of the appeals on the basis that they raise no question of law and are an abuse of the court’s process. Mr. Toole sought orders for the immediate payment of all arrears and current rent due, as a condition of maintaining the stays of eviction.
DIRECTIONS FROM THE COURT
Homesky Properties Inc. v. Sugunan, 405/23
[9] Counsel for Homesky advised the court that on July 14, 2024, (Homesky Properties Inc. v. Sugunan, 2023 ONSC 4624) Corbett, J. lifted the stay of eviction following a teleconference at which Mr. Phang attended to assist the tenant, who stated that he was suffering from an illness that made participating in the court process very stressful. In that matter, the arrears stood at $45,000 and monthly rent was $1900.
[10] The tenant has not filed material in this matter, nor has he ordered the recordings to perfect the appeal.
[11] I direct that this appeal shall be dismissed as abandoned if the tenant does not file proof by February 1, 2024 that he has ordered the recordings from the Board and that he intends to perfect and argue this appeal.
30 Gilder Drive Apartments v. Sugunan, 024/24
[12] Counsel for 30 Gilder Drive Apartments advised the court that the eviction order was carried out prior to the filing of the appeal and that the unit is empty.
[13] I direct that this appeal shall be dismissed as abandoned if the tenant does not file proof by February 1, 2024, that he has ordered the recordings from the Board and that he intends to perfect and argue this appeal.
Capreit Limited Partnership v. Sugunan, 472/23; Renato Developments v. Sugunan 710/23; 3201 Lawrence Avenue East Apartments v. Sugunan, 720/23
[14] The landlord in each of these matters seeks to bring a motion to quash these appeals based on abuse of process/lack of merit. I direct that a motion shall be scheduled before a single judge, to be heard on February 29, 2024. Counsel for the landlord shall serve and file the tenant, Mr. Phang, any known occupants of the three units, and the Board with his materials on or before February 12, 2024.
[15] The tenant and the Board shall have until February 22, 2024, to serve and file their responding materials.
[16] Finally, in these three appeals, a certificate of stay has been issued by the court. The landlord’s position is that arrears owed on these units are:
- 472/23: $31,367.88 as of January 1, 2024
- 710/23: $37,286.66 as of December 1, 2023
- 720/23: $34,147.41 as of December 19, 2023
[17] Rent must be paid as it comes due. The tenant’s proposal of this morning essentially acknowledges that these units are being sublet for profit. There is a longstanding pattern of this tenant avoiding paying the landlords in multiple units while apparently profiting from what, if accurate, can only be described as exploitative subtenancies, along with an utter evasion of responsibility to pay rent while obtaining stays of evictions orders with the legal assistance on every file of the same paralegal, who by virtue of acting on all of these matters would have known, or ought to have known, the nature of his client’s interests.
[18] It would be unfair not to require payment of the arrears immediately pending the hearing of the landlord’s motion. Accordingly, I order that as a condition of maintaining the certificates of stay of eviction in the matter of 472/23, 710/23 and 720/23, the tenant shall pay the arrears in full by February 1, 2024, and the rent on each unit as it falls due. If the tenant fails to make these payments, the landlord may move before me in writing, supported by affidavit evidence and proof of service of same on any occupants of the units, and on Mr. Sugunan for an order lifting the stay.
_______________________________ Leiper J.
Released: January 22, 2024