Court File and Parties
CITATION: Zadeh v. Abbas, 2024 ONSC 5929
DIVISIONAL COURT FILE NO.: 596/24
DATE: 20241025
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: FAIEZEH ZADEH, Appellant/Respondent on the Motion
AND:
HAIDER ABBAS, Respondent on Appeal /Moving Party
BEFORE: Davies J.
COUNSEL: Carey O. Blake, for the Appellant/Respondent on the Motion
Haider Abbas, self-represented
HEARD at Toronto: In chambers, in writing
ENDORSEMENT
[1] Ms. Zadeh lives in a rental unit owned by Mr. Abbas.
[2] Mr. Abbas brought an application before the Landlord and Tenant Board to terminate Ms. Zadeh’s tenancy because she had not paid her rent. Ms. Zadeh did not attend the hearing and on January 29, 2024, the Board terminated her tenancy.
[3] Ms. Zadeh requested a review of the Board’s order. Her request was granted and a de novo hearing was held on June 18, 2024. Ms. Zadeh did not attend that hearing either. By that time, Ms. Zadeh owed $29,700 in arrears.
[4] On June 24, 2024, the Board granted Mr. Abbas’s application and terminated Ms. Zadeh’s tenancy. The Board’s order said that Ms. Zadeh could void the eviction order if she paid Mr. Abbas $32,586. If Ms. Zadeh did not pay the required amount, she was required to move out by July 5, 2024. The Board also ordered Ms. Zadeh to pay Mr. Abbas $88.77 per day until she moves out.
[5] Ms. Zadeh did not pay the amount ordered by the Board. Nor did she vacate the unit. Rather, she requested a review of the Board’s June 24, 2024 order. That review was denied on September 3, 2024. On September 25, 2024, Ms. Zadeh requested a further review of the June 24, 2024 order. That request was denied on October 1, 2024.
[6] Ms. Zadeh has now appealed the Board’s orders to this court and was granted a stay of the Board’s eviction order.
[7] Mr. Abbas has brought this motion for an order lifting the stay of the Board’s order. For the following reasons, the motion is granted.
[8] A case conference was held before me on October 16, 2024. When the case conference was scheduled, the parties were told that the court may make an order during the case conference “respecting payment of ongoing rent and rental arrears as a condition of continuing the stay pending appeal in this court.”
[9] I heard submissions from Mr. Abbas and Ms. Zadeh’s counsel on whether I should make an order requiring Ms. Zadeh to pay her rent and to contribute to the arrears pending the hearing of her appeal. Counsel for Ms. Zadeh acknowledged she had an obligation to pay her ongoing rent and the arrears. However, he asked that I not make an order that would inevitably result in Ms. Zadeh being evicted because she could not make the payments. Ms. Zadeh’s counsel did not make any submissions on what payments she would be able to make.
[10] On October 17, 2024, I issued directions which read, in part, as follows:
I agree with Mr. Blake that I should not make an order I know Ms. Zadeh cannot comply with. However, I do not have any information about Ms. Zadeh's financial circumstances. Ms. Zadeh was told that this issue would be addressed at the case conference today. On October 7, 2024, Justice Matheson issued directions which said, in part, that at this case conference, "the court may make orders respecting payment of ongoing rent and rental arrears as a condition of continuing the stay pending appeal in this court." Ms. Zadeh did not respond to the Court's inquiries about the calculation of arrears and chose not to attend the case conference today.
In my view, the following order is reasonable based on the monthly rent, the quantum of arrears and history of non-payment.
I direct the tenants as follows:
The tenant is required to pay the landlord $2,700 on October 19, 2024 and on the 19th day of every month thereafter until her appeal is decided.
The tenant shall make each rent payment by way of an electronic transfer to Mr. Abbas's email.
The rent payments must be received by Mr. Abbas no later than 4pm on the 19th day of each month.
The tenant shall pay the landlord $2,700 towards the rental arrears on November 1, 2024 and on the first of each month thereafter until her appeal is decided or the arrears are fully paid (whichever comes first).
The payments towards the arrears shall be made by way of an electronic transfer to Mr. Abbas's email.
The arrears payments must be received by Mr. Abbas no later than 4pm on the first day of each month.
If the tenants fail make a rent or arrears payment in accordance with these directions, Mr. Abbas may bring a motion in writing before me for an order lifting the stay of the Board's order.
If Mr. Abbas brings a motion in writing, it must be on notice to the tenants. Mr. Abbas may serve his motion materials electronically but he must send his materials to Ms. Zadeh and her lawyers.
The Notice of Motion and any supporting affidavit must also be sent to counsel for the Board.
The tenant will be given an opportunity to respond in writing to any motion brought by the landlord before I decide the motion. (emphasis in original)
[11] On October 21, 2024, Mr. Abbas filed this motion for an order lifting the stay of the Board’s order. The motion was served on both Ms. Zadeh and her counsel. Mr. Abbas filed an affidavit in support of his motion in which he swears that Ms. Zadeh did not pay her rent as required on October 19, 2024. The affidavit also says Ms. Zadeh now owes $43,200 in arrears.
[12] I gave Ms. Zadeh an opportunity to respond to the motion. Ms. Zadeh’s counsel filed an affidavit from a paralegal in his office that says that Ms. Zadeh was unable to pay her rent as required on October 19, 2024 because she is suffering financial difficulty. The affidavit also says Ms. Zadeh is currently unemployed for medical reasons. Attached to the affidavit is a letter from Ms. Zadeh’s doctor dated October 10, 2024 which confirms she has health issues. The affidavit states that Ms. Zadeh anticipates being in a “better financial position” by November 19, 2024 because she intends to return to work shortly. The affidavit also says Ms. Zadeh “will be able to commence paying the rent” in November and she will also be able to “pay an additional $200 monthly” towards the arrears.
[13] While I am sympathetic to Ms. Zadeh’s health issues, they do not relieve her of her obligation to pay rent. The tenant’s obligation to pay rent is fundamental to the landlord-tenant relationship: Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739(Div. Ct.), at para. 15. A tenant has no right to live to live rent-free even if they run into financial difficulty or experience health problems.
[14] A stay of the Board’s eviction order is granted to make sure that tenants can preserve their tenancy while they pursue their appeal. 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, Keegan v. Goa, 2024 ONSC 4576 at para. 4.
[15] But the statutory stay does not give Ms. Zadeh the right to live rent-free pending her appeal. 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.
[16] 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. Nonetheless, I am satisfied the stay should be lifted in this case. Ms. Zadeh has not paid rent for 16 months and now owes more than $30,000 in arrears.
[17] I made a clear order following the October 16, 2024 case conference requiring Ms. Zadeh to pay her rent. I explained the consequences of failing to comply with my direction. It would be an abuse of this court’s process and unfair to Mr. Abbas to allow Ms. Zadeh to continue to live in her unit without paying rent.
[18] Mr. Abbas’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 asked the court staff to expedite issuing and entering an order consistent with these reasons to facilitate execution of the eviction order by the Sheriff.
[20] Ms. Zadeh is, of course, entitled to continue her appeal even if the eviction is carried out. However, if Ms. Zadeh fails to perfect their appeal on January 6, 2025 in accordance with the timetable set out in my October 17, 2024 directions, the appeal will be dismissed on request by Mr. Abbas.
Davies J.
Date: October 25, 2024