CITATION: Elguindy v. Galaxy Real Estate Core Ontario LP, 2024 ONSC 5911
DIVISIONAL COURT FILE NO.: 072/24
DATE: 2024/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs J.
BETWEEN:
Marta Kirpichova and Emad Elguindy Tenants (Tenants/Respondents to Cross-Appeal)
– and –
Galaxy Real Estate Core Ontario LP Landlord (Respondent/Tenant by Cross-Appeal)
Counsel:
Marta Kirpochova and Emad Elguindy on their own behalf
Rob L. Winterstein, for the Landlord (Respondent/Tenant by Cross-Appeal)
Linda Naidoo, for the Landlord and Tenant Board
HEARD at Toronto: October 17, 2024
H. Sachs J.
Nature of the Proceeding
[1] Marta Kirpichova (the “Tenant”), with her partner Emad Elguindy, appeals a Review Order, dated January 30, 2024, of the Landlord and Tenant Board (the “LTB”), which dismissed a Motion to Void an Eviction Order dated November 30, 2022.
[2] Galaxy Real Estate Core (the “Landlord”) cross-appeals from the same order, which, after dismissing the Motion to Void, ordered that the rent payments the Tenant had paid to the LTB in order to void the Eviction Order, should be returned to the Tenant.
[3] For the reasons that follow, I would dismiss the appeal and allow the cross-appeal.
Relevant Background and Procedural History
[4] The Tenant resides at 305-245 Lakeshore Drive in Toronto, Ontario.
[5] On January 31, 2022, the Landlord filed an L1 Application to Evict a Tenant for Non-Payment of Rent and to Collect Rent the Tenant Owes, claiming that the Tenant owed them $37,756.80 in arrears as of that date.
LTB Eviction Order – November 15, 2022
[6] On November 15, 2022, the LTB made an Eviction Order terminating the Tenant’s tenancy for arrears of rent. The Member found that the Tenant owed the Landlord $54,489.60, including arrears of rent to November 30, 2022 and the application filing fee. The Order permitted the Landlord to file it with the Sheriff starting on November 27, 2022.
Divisional Court Appeal of the Eviction Order – July 27, 2023
[7] The Tenant filed an appeal of the Eviction Order to the Divisional Court, which was dismissed in an Order by a Panel of the Divisional Court dated July 27, 2023. Costs of $7,500 were ordered payable by the Tenants to the Landlord.
ONCA Motion
[8] During the course of the appeal to the Divisional Court, the Tenant brought a motion to the Court of Appeal of Ontario to stay the Eviction Order along with Case Management Directions of Justice O’Brien (dated December 7, 2022) and of Justice Corbett (dated December 12, 2022). Justice George dismissed the “frivolous” motion in an Order dated December 23, 2022, stating that the appeal of the Eviction Order rightly fell to a panel of the Divisional Court, and ordered the Tenant to pay the Respondent $4,000 in costs.
Divisional Court Motion
[9] The Tenant also brought a motion to set aside the order made by Justice O’Brien via Case Management Directions dated December 7, 2022. The Tenant argued that Justice O’Brien’s order, which ordered the Tenant to make payments to the Respondent pending appeal, needed review because the Respondent was not in fact the Landlord. In a decision dated January 28, 2023, Justice Corbett found there was no real contest as to the identity of the Landlord, and ordered the Tenant to pay $5,000 in costs to the Landlord.
LTB Review Order – January 30, 2024
[10] After the Divisional Court appeal of the Eviction Order was dismissed, the Tenant filed a Motion to Void at the LTB, seeking to void the Eviction Order.
[11] On January 30, 2024, the LTB made a Review Order upholding the Eviction Order and dismissing the Tenant’s Motion to Void.
[12] As a preliminary issue, the LTB Member found that Mr. Elguindy was not a lawful tenant of the Rental Unit, as he did not sign the lease and there was no agreement made by the parties to subsequently add him as a tenant; he was merely an occupant. Mr. Elguindy continued to represent the Tenant, Ms. Kirpichova, in the LTB proceeding with the Landlord’s consent.
[13] The Tenant argued that the Eviction Order was void and unenforceable because, pursuant to s. 81 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”), more than six months had passed since the date of the order could first be enforced by the Sheriff. However, the Member found that when the Tenant filed an appeal to the Divisional Court, resulting in a stay of the LTB’s Eviction Order pursuant to section 25(1) of the Statutory Powers Procedures Act (“SPPA”), the clock on the six-month enforcement period was also stayed until the appeal was resolved by the Divisional Court. The Member noted that any other interpretation of the SPPA “could give rise to serious issues of unfairness as it would permit a tenant to frustrate the landlord’s right to enforce an order after an appeal is dismissed.” As such, the Member found that the Eviction Order was not void and could still be enforced by the Sheriff.
[14] The Member also dismissed the Tenant’s Motion to Void: the Tenant argued that pursuant to section 74(11) of the RTA, the Tenant had paid the $70,069.76 required to void the eviction order. The Member found that the Tenant had in fact only paid a total of $60,381.00, of which $39,886.64 was held in trust by the LTB.
[15] Pursuant to the LTB Rules of Procedure Rule 20.6, which states that if after an order becomes enforceable, the Tenant pays less than the amount required to void the order, then the monies be directed back to the Tenant, the Member directed that the LTB direct any monies held in trust back to the Tenant.
Issues
Did the Member err in law in holding that the Eviction Order was not void even though it was not filed within six months of the date for filing stated in the order?
Did the Member err in making her calculations as to the arrears of rent owing?
Did the Member err in finding that Mr. Elguindy was not a tenant?
Did the Member err in law when she ordered that the LTB direct any monies held in trust back to the Tenant, pursuant to Rule 20.6 of the LTB Rules of Procedure?
Court’s Jurisdiction and Standard of Review
[16] This Court has jurisdiction to hear the appeal on questions of law only, pursuant to s. 210 of the RTA. The standard of review on questions of law is correctness.
Analysis
[17] The issues relating to the Member’s calculations of arrears of rent and whether Mr. Elguindy was a tenant of the Rental Unit are not questions of law. They both involve factual determinations and, thus, I have no jurisdiction to consider them on this appeal.
[18] There are only two issues of law raised on this appeal and cross-appeal—namely whether the Eviction Order was void because it was not filed with the Sheriff within six months of November 27, 2022, and whether the Member erred in ordering that the monies held by the LTB be returned to the Tenant.
[19] With respect to the first issue, s. 81 of the RTA provides as follows:
An order of the Board evicting a person from a rental unit expires six months after the day on which the order takes effect if it is not filed within six months with the sheriff who has territorial jurisdiction where the rental unit is located.
[20] Pursuant to s. 25 of the SPPA, where a party appeals a tribunal’s decision to this Court, the matter is stayed until the resolution of the appeal:
25(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay of the matter unless,
(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise.
[21] The LTB publishes Interpretation Guidelines “which are intended to assist the parties in understanding the Board’s usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making.” However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case. Interpretation Guideline 10 contains a section headed “Expiry of Eviction Order” that states:
Under s. 81 of the RTA, an order of the Board that evicts someone expires within 6 months of the date of the order unless it is filed with the appropriate Court Enforcement Office before that time. This expiration provision applies notwithstanding any appeal proceeding that may be initiated in a court of competent jurisdiction. Once an eviction order expires, there is no authority to renew it, nor will the landlord be able to apply again for the same remedy for the same time period.
[22] The Eviction Order at issue was not filed with the Sheriff within 6 months of the date of the order. According to the Landlord, that is because the Tenant filed his appeal one week after the order was granted, which resulted in a stay of the order.
[23] The Tenant submits that the Eviction Order is void. In doing so he relies on the wording of s. 81 of the RTA, which states that such an order expires “six months after the order takes effect” if it is not filed with the Sheriff, and on Interpretation Guideline 10, which makes it clear that this provision applies even if an appeal proceeding has been initiated.
[24] The Landlord submits that whether the Eviction Order in this case had expired is a question of fact and, therefore, the Member’s determination that it had not expired cannot be appealed. I disagree. The issue is one of statutory interpretation, which is a question of law.
[25] In Guideline 10, the LTB has provided its “usual interpretation” of the applicable provisions, which support the Tenant’s position. However, it is clear that this interpretation was not binding on the Member and is not binding on this Court.
[26] Statutory provisions are interpreted in accordance with the “modern principle” of statutory interpretation that the legislative provisions must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament:
Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at paras. 117-118).
[27] It is also a “well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences … [A]n interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.” (Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (S.C.C.), at para. 27).
[28] As set out by the Court of Appeal in Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561, 91 O.R. (3d) 321, at paras. 21-25, when applying the modern approach to statutory interpretation the court should start with the ordinary meaning of the words used and then consider the context in which the language is found as well as the purpose of the statutory scheme.
[29] The ordinary meaning of the words in s. 81 has been considered by this Court in Briarlane v. Limas, 2020 ONSC 7118 (Div. Ct.), at para. 34, where the Court states:
Neither s. 81 [of the RTA] nor s. 83 applies. The six-month time period in s. 81 begins to run on the day the eviction order takes effect. Given the Tenants’ appeal of the May 6, 2019 order, together with the stay of that order, the eviction order in issue here has not yet become effective.
[30] The Landlord agrees with the Tenant that the issue in Briarlane was very different than the issue in this case and that it may be that the statement quoted above could be regarded as “obiter”. However, this does not detract from the fact that this is a court’s view of the ordinary meaning of the words in s. 81.
[31] The question then becomes whether I should adopt this meaning. Even though I may not be bound by the statement in Briarlane, I agree with it. The interpretation given in that case accords with the ordinary meaning of the words in the statute, the context in which is found and the purpose of the RTA.
[32] Part of the context of s. 81 is s. 25(1) of the SPPA, which provides for the stay of an eviction order if the order is appealed. Like the order in Briarlane, because the Eviction Order was appealed, it could not be acted upon until the Tenants’ appeal rights were exhausted. Interpreting the section in this way acknowledges the impact of s. 25(1) of the SPPA on the effectiveness of the Eviction Order.
[33] With respect to purpose, s. 1 of the RTA describes its purposes:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increase and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other provisions to informally resolve disputes.
[34] The Briarlane interpretation is consistent with the purposes of the RTA, one of which is to balance the rights and responsibilities of residential landlords and tenants. One of the fundamental responsibilities of a tenant is to pay rent. The RTA should not be interpreted in such a way as to foster the ability of a tenant to continue to live rent free in the rental unit. If the Tenant’s interpretation is adopted, this is what would happen. The Eviction Order at issue would be considered void even though a court has determined that it was lawful. The Tenant would be able to continue to live rent free in the premises while the Landlord would be forced to take other steps to evict the Tenant, with all the time and cost that will entail.
[35] For these reasons, I find that the Member was correct when she found that the clock on the six month enforcement period was stayed until the appeal was resolved by the Divisional Court.
[36] With respect to the Member’s decision to order the payment of the rent paid into the LTB out to the Tenant, I agree with her that Rule 20.6 of the LTB Rules provides that this is what is supposed to happen. However, I note that a previous version of these rules provided the opposite—until 2018, the monies held were to be paid to the landlord. I also note that Rule 1.6 of the LTB Rules states the following:
In order to provide the most expeditious and fair determination of the question arising in any proceeding the LTB may,
a. waive or vary any provision in these Rules …
[37] Thus, the Member had a discretion not to apply Rule 20.6 in the interests of fairness. Furthermore, the Landlord made a submission before her that applying Rule 20.6 would not be fair. Instead of dealing with that submission on the merits, the Member simply applied Rule 20.6 without considering whether to exercise her discretion to waive the rule. This was an error of law.
Conclusion and Costs
[38] For these reasons the Tenant’s appeal is dismissed and the Landlord’s cross-appeal is allowed. The Order of the LTB providing that the monies paid into the LTB be paid out to the Tenant is set aside and the matter is remitted to the LTB for a determination as to whether the LTB should exercise its discretion to waive Rule 20.6 in the interests of fairness.
[39] The Landlord is entitled to its costs of the appeal and cross-appeal. They are also entitled to their costs of the motion to review the decision of Myers J., which costs were reserved to the court hearing the appeal and cross-appeal. That motion should not have been brought. It had no chance of success. The Landlord has requested costs for both in the amount of $4,339.20, which I find to be reasonable and proportionate. It is so ordered.
Sachs J.
Released: October 25, 2024
CITATION: Elguindy v. Galaxy Real Estate Core Ontario LP, 2024 ONSC 5911
DIVISIONAL COURT FILE NO.: 072/24
DATE: 2024/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs J.
BETWEEN:
Marta Kirpichova and Emad Elguindy Tenants (Tenants/Respondents to Cross-Appeal)
– and –
Galaxy Real Estate Core Ontario LP Landlord (Respondent/Tenant by Cross-Appeal)
REASONS FOR JUDGMENT
Released: October 25, 2024