Court File and Parties

CITATION: Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONSC 1182

DIVISIONAL COURT FILE NO.: DC-24-00000638-0000

DATE: 20250221

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: AMSTAR POOL ILP, Landlord/Appellant

AND:

DAVID TWENEBOA-KODUA, Tenant/Respondent

BEFORE: Shore J.

COUNSEL: Kristin Ley, for the Landlord/Appellant

David Tweneboa-Kodua, self represented Tenant/Respondent

Nicola Mulima, for the Landlord and Tenant Board

HEARD at Toronto: In Writing

ENDORSEMENT

[1] The Landlord brought this motion in writing to lift the automatic stay of execution of the Landlord and Tenant Board's ("LTB") eviction order dated July 9, 2024 (and the order dismissing the motion to set it aside, dated September 11, 2024), and the reconsideration decision dated September 26, 2024.

[2] For the reasons below, the motion is granted, and the stay shall be lifted.

[3] The Tenant, David Tweneboa-Kodua, (the "Tenant") is the tenant of an apartment unit located at 401-91 Cosburn Avenue, Toronto, Ontario M4K 2G2 (the "Rental Unit").

[4] The Landlord is the owner of the Rental Unit and is the Tenant's landlord.

[5] The Landlord applied to the LTB for an order terminating the tenancy agreement and evicting the Tenant for failure to pay rent. Thereafter, a number of hearings took place before the LTB. In May 2024, the parties reached an agreement that continued the tenancy, provided that certain conditions were met, including payment of ongoing rent. However, the Tenant failed to meet the conditions specified in the order. An order was made on July 9, 2024, terminating the tenancy. The Tenant brought a motion to set aside the order. That motion was dismissed on September 11, 2024. The Tenant's request for review was dismissed by way of an order dated September 26, 2024.

[6] The Tenant commenced an appeal in Division Court and obtained an automatic stay of execution of the eviction order.

[7] When an appeal from a decision of the LTB is filed in the Divisional Court, the LTB's eviction order is stayed pending the outcome of the appeal. A stay of the LTB'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.

[8] However, the obligation to pay rent is a fundamental part of the landlord and tenant relationship. A statutory stay does not give the Tenant a right to an abatement in rent or to live rent free. It is an abuse of process for a tenant to use an appeal to the Divisional Court to continue to live in a rental premise without paying rent.

[9] The parties attended a case management conference before me on December 18, 2024, at which time the following Direction was made:

The LTB found the arrears to be $8,039.98 as of September 11, 2027. The current arrears are $12,958.12 (which may be subject to a payment of $2,000 from yesterday which could not be confirmed by the Landlord's counsel), and the monthly rent is $1,639.38. As a condition of continuing the stay, the Tenant shall pay his ongoing rent, as required, on the first day of each month plus an additional $2,000 per month on January 15, February 18, and March 18, 2025, towards the outstanding arrears. Any remaining arrears are to be paid in advance of the hearing of the appeal.

If the Tenant fails to make the payments as set out above, the Landlord may proceed with a motion, in writing, to my attention. The Tenant will be given 10 days to serve and file any response to the motion before a decision is made.

[10] In accordance with the Direction, the Landlord brought this motion to lift the stay. No responding material was filed by the Tenant.

[11] The Tenant made a payment of $2,000.00 on the date of the case conference. However, the Tenant failed to pay the ongoing rent for January or the $2,000.00 that should have been paid on January 15, 2025.

[12] 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.

[13] I am satisfied that this is an appropriate case to lift the stay of the LTB's eviction order. The Tenant failed to pay his ongoing rent, and when given further opportunities to pay the rent in order to continue the stay, he failed to make payments towards the rent or the arrears. His arrears are in excess of $10,000.

Disposition:

[14] The Landlord's motion to lift the stay of the LTB's eviction order is granted.

[15] The stay is lifted effective immediately, and the Sheriff is requested to enforce the LTB's eviction order as soon as practicable.

[16] The Tenant is entitled to continue their appeals even if the eviction is carried out.

Shore J.

Date: February 21, 2025