Court File and Parties
CITATION: Pornaras v. Swadi, 2024 ONSC 7021
DIVISIONAL COURT FILE NO.: 484/24
DATE: 2024-12-13
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: CHRIS PORNARAS, Appellant
- and - OMAR SWADI, Respondent
BEFORE: FL Myers J
COUNSEL: Alan McConnell, counsel for the Appellant Yasamin Fahd, counsel for the Respondent
HEARD at Toronto (by videoconference): December 13, 2024
Endorsement
[1] The Appellant (tenant) seeks to schedule the hearing of his appeal. The Respondent (landlord) asks to bring a motion to dismiss the appeal for delay.
[2] The Landlord and Tenant Board evicted the Appellant due to arrears of rent by order dated July 29, 2024. At that time, the arrears were almost $62,000 and were growing at the rental rate of $5,000 per month.
[3] The Appellant served his Notice of Appeal on August 15, 2024.
[4] For reasons which cannot be adequately explained, the Landlord and Tenant Board failed to log the Appellant’s request for production of the recording of the hearing. Once the Appellant’s counsel followed-up in late September, the Landlord and Tenant Board produced the recording on October 25, 2024 and counsel had a transcript prepared by November 23, 2024. There was a stutter step during which the Appellant’s counsel had to ask for a second copy of the recording. But, as the transcript was still available within a month, I do not see that as significant.
[5] Not to be outdone, although every new matter filed with Divisional Court is automatically sent to a Triage Judge for scheduling, for reasons that cannot be adequately explained, this appeal was not sent to a Triage Judge until November 18, 2024. Counsel for the Respondent followed-up with the Court to inquire about scheduling on October 29, 2024. It still took another 20 days for the matter to be sent to the Triage Judge.
[6] Now that the Appellant has the transcript, his counsel is prepared to perfect the appeal with alacrity and proposes a deadline of January 15, 2025. If that date is set, counsel for the Respondent requests until February 14, 2025 to deliver her material. The Board then would have its material filed by February 28, 2025.
[7] The Respondent asks to schedule a motion to dismiss the appeal for delay. But the delay lies at the feet of bureaucracy at the Board and the Court. The Appellant could have followed-up about the transcripts sooner. But the Respondent also could have followed-up about scheduling and triage sooner.
[8] The Respondent also submits that the appeal is frivolous and does not even raise an error of law as required under s. 210 of the Residential Tenancies Act, 2006, SO 2006, c 17. The Appellant also has not paid any rent from June, 2023 to date. Had the court heard a scheduling conference in August, as ought to have happened, the issue of rent being paid pending the hearing of the appeal would have been dealt with before $20,000 of extra arrears accrued since the appeal was filed.
[9] The Appellant submits that he should not have to pay rent to maintain the stay of proceedings in this case because his claim is that he is owns the unit and is not a tenant. The Board held that the issue of whether the Appellant is an owner would be dealt with in separate proceedings that are ongoing in the Superior Court. There is no reason that an owner cannot also be a tenant in a property – especially if he is acting in different capacities or there are multiple owners.
[10] Here, the Appellant claims that he adduced evidence of witnesses at the hearing before the Board who testified that they heard him agree with the Respondent that the Respondent would buy the property on the Appellant ’s behalf and be re-paid when the Appellant’s divorce proceeding was concluded. Legal title to the property was therefore taken in the Respondent’s name. But the Appellant says the Respondent holds the title for him. One might raise one’s eyebrows at such a significant transaction being concluded orally. Why might a husband in a divorce proceeding want to keep title to realty out of his name? That issue is not before me.
[11] The Appellant submits that the Board failed to deal with the evidence of the two witnesses who testified to hearing the oral deal being made. The finding that the Appellant was a tenant is a finding of fact or mixed fact and law. But the Appellant submits that the Board erred in law by ignoring important evidence.
[12] The Board dealt with the ownership issue as follows:
The ownership issue
I find that the Tenant’s beneficial ownership claim and the ongoing Superior Court proceedings do not affect the Board’s authority to hear the application.
In Warriach v. Choudry, 2018 ONSC 1267, the Court found where there is a claim of ownership before the Superior Court, the Board also has jurisdiction to hear eviction proceedings. A finding that a party is a lessee under the lease agreement does not in any way affect, or determine, their claim of equitable interest in the property as a co-owner. As such, the Tenant’s request to dismiss the application on this basis is denied.
Based on the evidence above, I am satisfied on a balance of probabilities that 1) the Landlord is the only owner of the residential complex; and 2) the Tenant satisfies the definition of “tenant” in the Act.
I find that the Tenant meets the definition of “tenant” because although the parties did not sign a tenancy agreement that defined their relationship as landlord and tenant, their communication suggests that there was Landlord and Tenant relationship. Further, the text messages between the parties from 2023 acknowledge the Tenant’s obligation to pay rent. Since the Tenant is not on title to the property, there is also no evidence before me to establish that the Tenant is any legal ownership interest in the residential complex, which would make him a co-owner and exclude him from the definition of “tenant”.
[Emphasis added.]
[13] Assuming for present purposes that the issue of whether the Board ignored evidence can amount to an error of law that is capable of being appealed, the issue then is whether the Board ignored the evidence or was the evidence simply irrelevant once the Board held that the issue of equitable ownership was being decided in a court proceeding as discussed in Warriach.
[14] It is settled law now that the stay of a residential tenant’s eviction order pending an appeal to this Court is subject to the overriding concern that a stay is not to be used to “game the system” by providing the tenant with rent-free accommodation. One way to guard against misuse of the Court’s process is to ensure that appeals are heard quickly. That option is no longer available through no fault of the parties. The other almost-universal step to guard against abuse of the Court’s process is to require the appellant-tenant to keep rent current and to pay down arrears pending the appeal.
[15] I understand that Appellant’s argument that if he is found to be the owner of the unit, he may not owe rent at all. But weighing the equities, it seems to me that the risk to the Respondent of an untoward and irreparable outcome is much greater than the risk to the Appellant. If the Appellant wins in his court proceeding, he will have a damages claim against the Respondent included in an accounting for years of payments that passed between them. But if the Appellant is unsuccessful in this appeal, the Respondent will be chasing him for back-rent. Moreover, I do not view the appeal as an especially strong one considering the Board’s explicit recognition of the split between equitable ownership claims and tenancy under the statutory regime.
[16] In my view, it is necessary and in the interests of justice to require the Appellant to pay ongoing rent as a term of maintaining the stay of proceedings in this Court. The Appellant shall therefore pay $5,000 to the Respondent on the first day of each month commencing January 1, 2025 until the appeal decision is released.
[17] In addition, there is no reason for the Appellant to have a monetary benefit due to the bureaucratic delays at the Board and the Court. Rent for September through December should have been paid while this proceeding has been underway. The Appellant will therefore pay an addition $5,000 on the 15th of each month starting on January 15, 2025 until the earlier of the fourth payment being paid or the release of the decision in the appeal.
[18] The schedule set out in para. 6 above is ordered. The Registrar is directed to list the appeal fo hearing before a single judge for one-half day no earlier than March 7, 2025. Counsel are required to upload their client’s materials to Case Center as soon as they are delivered and the Registrar creates a bundle for the appeal.
[19] In the event that the Appellant fails to make any of the rent payments ordered above, the Respondent may move to lift the stay of proceedings by sending an email to the Registrar seeking a case conference for that purpose.
[20] Costs reserved to the judge who hears the appeal.
FL Myers J
Date: December 13, 2024