Court File and Parties

Citation: Kamalifar v. Paterno, 2024 ONSC 5763 Divisional Court File No.: 464/24 Date: 2024-10-17 Superior Court of Justice – Ontario Divisional Court

Re: Aisan Kamalifar and Davan Dawkins, Appellants/Responding on Motion And: Lisa Paterno, Respondent on Appeal /Moving Party

Before: Davies J.

Counsel: Aisan Kamalifar and Davan Dawkins, self-represented Taheratul Haque and Nitish Bali, for the Respondent/Moving Party

Heard: In chambers, in writing

Endorsement

[1] On June 20, 2024, the Landlord and Tenant Board terminated Ms. Kamalifar and Mr. Dawkins’s tenancy and ordered them to vacate their rental premises, which is owned by Ms. Paterno. The Board found that Ms. Kamalifar and Mr. Dawkins owed $15,000 in rental arrears as of June 30, 2024. The Board also found that their monthly rent was $2,500. The Board ordered that Ms. Kamalifar and Mr. Dawkins could void the eviction order by paying Ms. Paterno $15,286 by July 1, 2024.

[2] Ms. Kamalifar and Mr. Dawkins did not pay the amount ordered by the Board. Nor did they vacate their unit. Rather, they requested a review of the Board’s decision. That review was denied on August 15, 2024.

[3] Ms. Kamalifar and Mr. Dawkins have appealed the Board’s decisions to this Court. They obtained a certificate of stay of the eviction order pending the hearing of their appeal.

[4] Ms. Paterno has brought this motion for an order lifting the stay of eviction. For the following reasons the motion is granted and the stay of eviction is lifted.

[5] Ms. Kamalifar and Mr. Dawkins have not paid any rent since they moved into the unit in December 2023 other than the first month’s rent and a $2,500 rent deposit.

[6] A case conference was scheduled before me on September 27, 2024.

[7] Ms. Kamalifar sought an adjournment of the case conference for eight weeks for medical reasons. In the alternative, she asked that the case conference proceed in writing. I denied the adjournment but granted Ms. Kamalifar’s request to make written submissions on the issues to be addressed at the case conference. In my decision on Ms. Kamalifar’s adjournment request, I communicated to both Ms. Kamalifar and Mr. Dawkins that one of the issues I would be considering at the case conference was whether I would direct them to pay their rent and/or make payments towards the rent arrears pending the hearing of their appeal. I explained what sort of order I could make and the consequences to them of failing to comply with whatever order I made. I wrote the following in my directions:

Ms. Kamalifar and Mr. Dawkins must understand that I may make an order requiring them to pay their rent of $2,500 on the first of every month between now and when their appeal is decided. I may also make an order requiring them to make substantial contributions towards the rental arrears. For example, I may order them to pay an additional $2,500 (or more) each month towards the arrears. Or I may order them to make a single payment of up to the full amount of arrears. I may specify in my order how those payments are to be made and to whom those payments are to be made.

If Ms. Kamalifar and Mr. Dawkins fail to comply with whatever order I make, the landlord would be entitled to bring a motion in writing to immediately lift the stay of the Board's order.

[8] Ms. Kamalifar filed written submissions in advance of the case conference. She wrote that she did not agree with the Board’s calculation of the rent arrears because she feels she is entitled to an abatement of the rent. Ms. Kamalifar also wrote, “I am intending to plan for monthly rental payment for the future month and because I was previously going through hardship due to unemployment but I really appreciate if landlord considers to give me a chance to prepare a payment plan to settle this matter.” Ms. Kamalifar asked to be given until October 15, 2024 to pay the rent due on October 1, 2024. She also wrote that as of November 1, 2024, she will be able to pay the rent on the first of each month.

[9] Mr. Dawkins did not attend the case conference even though I wrote in my September 26, 2024 direction that I expected him to attend because he had not sought any accommodation.

[10] Following the case conference, I directed Ms. Kamalifar and Mr. Dawkins to pay their monthly rent of $2,500 on October 1, 2024 and on the first of each month until their appeal is decided. Given their history of not paying rent, I was not prepared to delay their October rent payment to October 15, 2024 as Ms. Kamalifar had requested. I also directed that if Ms. Kamalifar and Mr. Dawkins fail to pay their rent as required by my directions, Ms. Paterno could bring a motion in writing for an order lifting the stay of the Board’s order.

[11] On October 2, 2024, Ms. Paterno filed a motion for an order lifting the stay of the Board’s order. The motion was served on Ms. Kamalifar and Mr. Dawkins separately. Ms. Paterno filed an affidavit in support of her motion which she states Ms. Kamalifar and Mr. Dawkins did not pay their rent on October 1, 2024.

[12] I gave Ms. Kamalifar and Mr. Dawkins an opportunity to file responding materials on the motion but they declined to do so.

[13] When an appeal from a decision of the Landlord and Tenant Board is filed in the Divisional Court, the Board’s eviction order is stayed pending the outcome of the appeal. A stay of the Board’s eviction order ensures that the tenant can pursue their appeal and preserve their tenancy while they do so. The statutory stay is “intended to preserve the ability of this court to do justice – to both sides – at the conclusion of the case”: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 at para. 23.

[14] But the statutory stay does not give Ms. Kamalifar or Mr. Dawkins the right to live rent-free pending their appeal. The obligation to pay rent is a fundamental part of the landlord and tenant relationship. It is an abuse of process for a tenant to use an appeal to this court to continue to live in a rental premise without paying rent. As Justice Corbett noted in Jayaraj v. Metcap at para. 23, tenants should expect the stay of eviction might be lifted if they do not keep their rent current pending their appeal. Of course, not every failure to pay rent will result in the stay being lifted and each case must be decided on its own facts.

[15] I am satisfied that it is appropriate to lift the stay of the Board’s eviction order in this case. Ms. Kamalifar and Mr. Dawkins have not paid rent since late 2023 and they now owe $25,000 in arrears.

[16] I made a clear order following the September 27, 2024 case conference requiring Ms. Kamalifar and Mr. Dawkins to pay their rent on October 1, 2024 and on the first of every month thereafter. I explained to them the consequences of failing to comply with my direction.

[17] I accept Ms. Paterno’s evidence that Ms. Kamalifar and Mr. Dawkins did not pay their rent on October 1, 2024. It would be an abuse of this court’s process to allow Ms. Kamalifar and Mr. Dawkins to continue to live in their unit without paying rent.

[18] Ms. Paterno’s motion to lift the stay of the Board’s eviction order pending appeal is, therefore, granted.

[19] The stay is lifted effective immediately and the Sheriff is requested to enforce the eviction order of the Landlord and Tenant Board as soon as practicable. I have signed the draft order submitted by Ms. Paterno’s counsel. I have asked the court staff to expedite issuing and entering the order to facilitate execution of the eviction order by the Sheriff.

[20] Ms. Kamalifar and Mr. Dawkins are, of course, entitled to continue their appeal even if the eviction is carried out. However, if Ms. Kamalifar and Mr. Dawkins fail to perfect their appeal on November 22, 2024 as required, the appeal will be dismissed on request of the landlord by email.

[21] Within 72 hours of the release of this decision, Ms. Paterno shall advise the Court whether a date is required for any other motion in this matter. During the September 27, 2024 case conference, counsel for Ms. Paterno said they intend to bring a motion for an order requiring Ms. Kamalifar and Mr. Dawkins to make payments towards the rent arrears and to post security for costs. A timetable was set for the exchange of materials on those motions. Ms. Paterno shall advise the Court whether she intends to pursue those motions in light of this ruling.

Davies J.

Date: October 17, 2024