Court File and Parties

CITATION: Delic v. Henley Group Ltd., 2025 ONSC 1910 DIVISIONAL COURT FILE NO.: DC-24-00000763-0000 DATE: 2025-03-26

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Andrew Delic, Appellant AND: Henley Group Ltd., Respondent

BEFORE: Shore J.

COUNSEL: Self-represented, Appellant David Dunnet, for the Respondent Nicola Mulima, for Tribunals Ontario

HEARD at Toronto: February 24, 2025, in writing

Endorsement

[1] The Landlord, Henley Group Ltd., brought this motion for an order dismissing the Tenant's appeal as frivolous, vexatious, and an abuse of the court process, under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.

[2] In the alternative, the Landlord is seeking an order lifting the automatic stay of eviction for the property, known as 5-25 Paisley Blvd, East, Mississauga, Ontario, L5A 1P, currently occupied by the Tenant, Andrew Delic, the Appellant in these proceedings.

[3] For reasons set out below, the appeal is dismissed.

Background:

[4] The parties previously proceeded with an application before the Landlord and Tenant Board ("LTB"), to terminate the tenancy after the Tenant failed to pay his rent on a timely basis. On May 25, 2023, the LTB found the arrears to be $9,065, and set a payment schedule for payment of the arrears, failing which the Landlord could apply to evict the Tenant.

[5] The Tenant stopped making the payments as of March 2024, and the Landlord submitted another application to the LTB to evict the Tenant for non-payment. At the hearing, the Tenant did not oppose the quantum of arrears but sought to pay off the arrears over a period of five months.

[6] On September 16, 2024, the LTB terminated the tenancy. The rental arrears as of July 31, 2024, were found to be $5,990. Although the Tenant was no longer living in the unit, the LTB found that the Tenant still had possession of the unit because he permitted a family member to reside there and be the caregiver of the rental unit.

[7] The Tenant filed a request for review. On November 21, 2024, the morning that the review was scheduled to be heard, the Tenant reached out to counsel for the Landlord with a settlement proposal. The parties reached an agreement on a revised payment schedule, with a condition that if the Tenant did not make the payments, termination and eviction would follow.

[8] A consent order was made on November 25, 2024, incorporating the terms of their agreement. The arrears were $11,794 as of November 30, 2024, and were to be paid in four installments, starting on November 30, 2024, and ending with the last payment on February 15, 2025. The Tenant was also to pay rent on time.

[9] On December 2, 2024, the Tenant asked for an adjustment to the payment schedule, to extend the first payment to December 6, 2024. The Landlord agreed.

[10] The Tenant failed to make any payments. The Tenant has not paid rent since March 2024.

[11] Instead of making the first payment on December 6, 2024, the Tenant filed a notice of appeal of the consent order, dated November 25, 2024, submitting that the agreement was entered into under duress, and he has been acting in good faith to try to secure the money to make the payments.

[12] The Landlord brought this motion for an order dismissing the appeal as frivolous, vexatious, and an abuse of the court process, or, in the alternative, an order lifting the automatic stay of eviction.

Analysis:

[13] Rule 2.1.01(1) of the Rules of Civil Procedure gives this Court the authority to dismiss an appeal if it appears on its face to be frivolous, vexatious, or an abuse of process.

[14] The purpose of r. 2.1 is "nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources": see Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3 and Gao v. Ontario WSIB, 2014 ONSC 6100, at para. 9.

[15] Rule 2.1.01 is a blunt instrument, reserved for the clearest of cases. Rule 2.1 must be "interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process": Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 81 C.P.C. (7th) 258, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 36753; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12.

[16] The judge must focus on the pleadings and read the statement of claim generously and assume that the assertions of fact are true unless they are obviously implausible or ridiculous: Sumner v. Ottawa (Police Services), 2023 ONCA 140, at para. 9 and Scaduto, at paras. 9, 11-12.

[17] There are two conditions generally required: first, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleadings, and second, there should generally be a basis in the pleadings to support the resort to the attenuated process of r. 2.1: Scaduto, at paras. 8 and 9, citing Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9.

[18] The Tenant's grounds for appeal can be summarized as follows:

(a) The payment schedule imposed by the LTB was unreasonable;

(b) The Tenant entered into the agreement under duress to avoid eviction;

(c) The Tenant has acted in good faith to try to secure the funds;

(d) The Landlord is seeking to evict the Tenant, despite good faith efforts to fulfill his obligations.

[19] I find that the grounds of appeal lack merit and the appeal is incapable of success for the following reasons:

(a) Section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, provides that an appeal from the LTB lies to the Divisional Court, but only on a question of law. The Tenant has not raised any questions of law.

(b) Whether the Tenant is acting in good faith to make the payments is irrelevant and not a ground for appeal.

(c) The order was made on consent, so the question of whether the payment terms were reasonable is also not an issue before this Court.

(d) The last ground of appeal is whether the Tenant entered into the agreement under duress. The Tenant submits he was under "financial duress" because he otherwise would have been evicted from the unit. For a party to establish economic duress, it must show two things: first, that it was subjected to pressure applied to such an extent that there was no choice but to submit, and second, that the pressure applied was illegitimate. The Tenant's pleadings do not come close to meeting this test. The order was largely based on the Tenant's proposed terms. In any event, the only ground plead by the Tenant is duress, which is a question of mixed fact and law, not a question of law.

[20] I find that the appeal is manifestly devoid of merit. The Tenant has not paid rent since March 2024 and has not made any payments towards his arrears. He is occupying the premises rent free. In these circumstances, I find that the Tenant issued his appeal solely for the purpose of remaining in the premises without paying rent.

[21] The Landlord's motion is allowed.

Costs:

[22] The Landlord was successful and is entitled to fair and reasonable costs. If the parties are unable to agree on the quantum of costs within ten business days of release of this order, they may each serve and file their bill of costs, along with written submissions to be no more than two pages each, along with any offers to settle.

Disposition:

[23] The appeal is dismissed.

[24] If the parties are unable to agree on the quantum of costs within ten business days of release of this order, they may each serve and file their bill of costs, along with written submissions to be no more than two pages each, along with any offers to settle.

"Shore J."

Date: March 26, 2025