Court File and Parties
Citation: Mahdieh v. Ng, 2025 ONSC 249 Divisional Court File No.: 606/24 Date: 2025-01-13 Superior Court of Justice – Ontario Divisional Court
Re: Arash Mahdieh, Appellant/Respondent on Motion And: Grace Wei-Ki Ng, Respondent on Appeal /Moving Party
Before: Davies J.
Counsel: Arash Mahdieh, self-represented Eman Khoshbin, for the Respondent/Moving Party Linda Naidoo, for the Landlord and Tenant Board
Heard: In chambers, in writing
Endorsement
A. Overview
[1] On August 16, 2024, the Landlord and Tenant Board terminated Mr. Mahdieh’s tenancy for non-payment of rent and ordered him to vacate his rental premises, which is owned by Ms. Ng. The Board found that Mr. Mahdieh owed almost $35,000 in rental arrears as of June 30, 2024. The Board gave Mr. Mahdieh an opportunity to void its order, and avoid eviction, by paying Ms. Ng $39,936 by August 27, 2024.
[2] Mr. Mahdieh did not pay the amount ordered by the Board, nor did he vacate his unit. Rather, he appealed the Board’s decision to this Court and obtained a certificate of stay of the eviction order pending the hearing of his appeal.
[3] Ms. Ng has brought this motion for an order lifting the stay of eviction.
[4] Mr. Mahdieh has also requested a 10-day extension of time to perfect his appeal.
[5] For the following reasons Ms. Ng’s motion is granted and the stay of eviction is lifted effective immediately. Mr. Mahdieh’s request for an extension of time is also granted.
B. Motion to lift the stay of the Board’s order
[6] Following a case conference on November 1, 2024, I ordered Mr. Mahdieh to pay his ongoing rent pending the hearing of his appeal. The Board found that Mr. Mahdieh’s monthly rent was $2,650. I also ordered Mr. Mahdieh to make two lump sum payments towards the arrears. My order read as follows:
No later than 5:00 pm on November 11, 2024, Mr. Mahdieh shall pay the landlord $2,650 for the rent that was due on October 30, 2024.
Mr. Mahdieh shall pay the landlord his rent of $2,650 as required on November 30, 2024 and on the 30th day of every month thereafter until their appeal is decided. The rent payment must be received by the landlord no later than 5:00 pm on the 30th day of each month.
No later than December 13, 2024, Mr. Mahdieh shall make a lump sum payment of $5,000 towards the rent arrears.
No later than January 10, 2024, Mr. Mahdieh shall make a second lump sum payment of $5,000 towards the rent arrears.
If Mr. Mahdieh fails to make any payment required by these directions, the landlord may bring a motion in writing before me for an order lifting the stay of the Board's order. (emphasis in original)
[7] Mr. Mahdieh did make the required payment on November 11, 2024.
[8] A second case conference was held on November 28, 2024 because Mr. Mahdieh claimed he was having difficulty obtaining a recording of the hearing from the Board. During that case conference, I asked if Mr. Mahdieh had made the required payment on November 11, 2024. Mr. Mahdieh said he mailed a cheque to Ms. Ng several days before November 11, 2024 but Ms. Ng never received it.
[9] Following the November 28, 2024 case conference, I amended my earlier order. I ordered Mr. Mahdieh to pay Ms. Ng $5,300 by December 2, 2024 (for his October and November rent). I also ordered Mr. Mahdieh to make all required payments by bank draft, by money order or in cash and I ordered him to deliver the payments to Ms. Ng’s lawyer. I reiterated that Mr. Mahdieh was required to pay $5,000 towards the arrears by December 13, 2024 and a further $5,000 by January 10, 2024. In my directions, I reminded Mr. Mahdieh that if he failed make any required payment, Ms. Ng could bring a motion before me for an order lifting the stay of the Board's order.
[10] On December 1, 2024, Mr. Mahdieh emailed Ms. Ng’s lawyer and said he that he would deliver $10,300 to the lawyer (for October’s rent, November’s rent and the December 13, 2024 lump sum payment) by December 6, 2024. However, Mr. Mahdieh failed to make any payment on December 6, 2024. He says that his bank froze his account and he could not access any funds.
[11] A third case conference was held on December 16, 2024 at Mr. Mahdieh’s request. He again complained that he was having difficulty getting the recording from the Board. I again asked if Mr. Mahdieh had made the required payments and was told he had not. I was told that Ms. Ng had agreed to give Mr. Mahdieh one final indulgence. She had agreed not to bring a motion to lift the stay of the Board’s order if Mr. Mahdieh delivered $10,300 to her lawyer by December 20, 2024. I once again reminded Mr. Mahdieh that Ms. Ng was entitled to bring a motion to lift the stay of the Board’s order if he did not make the $10,300 payment on December 20, 2024.
[12] I accept the evidence filed by Ms. Ng that Mr. Mahdieh has not made any of the required payments since my November 1, 2024 order.
[13] In response, Mr. Mahdieh filed what appears to be a screenshot of a CIBC bank account with a balance of $12,603.94 with a notation that the account is frozen. Mr. Mahdieh asks for a further week to make the required payments, which now total $17,950 ($2,650 for the rent for each of October, November and December plus the two lump sum payments totalling $10,000).
[14] I am satisfied that it is appropriate to lift the stay of the Board’s eviction order. Mr. Mahdieh’s lease started on May 1, 2023. He paid his first month’s rent and gave a deposit for his last month’s rent. He has not paid any rent since then. He now owes more than $50,000 in arrears.
[15] I made a clear order following the November 1, 2024 case conference requiring Mr. Mahdieh to pay his October rent on November 11, 2024 and to pay his ongoing rent on the last day of each month. Mr. Mahdieh has been given several indulgences and extensions since November 1, 2024. I have repeatedly explained to Mr. Mahdieh the consequences of failing to comply with my directions.
[16] Mr. Mahdieh has repeatedly said that he could not make the required payments because of problems with his bank. Mr. Mahdieh has put forward the same excuse for not making the $10,300 payment on December 20, 2024. I am not confident that Mr. Mahdieh will resolve the issues with his bank if he is given another extension.
[17] In my view, it would be an abuse of this court’s process to allow Mr. Mahdieh to continue to live in the unit without paying rent. When an appeal from a decision of the Landlord and Tenant Board is filed in the Divisional Court, the Board’s eviction order is stayed pending the outcome of the appeal. The statutory stay ensures the tenant can preserve their tenancy while pursuing their appeal: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 at para. 23. The statutory stay does not give Mr. Mahdieh the right to live rent-free pending his appeal. The obligation to pay rent is a fundamental part of the landlord-tenant relationship.
[18] Ms. Ng’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. Counsel for Ms. Ng shall prepare a draft order. Mr. Mahdieh’s consent is not required in relation to the form or substance of the draft order. Once I have signed the draft order, I will ask the court staff to expedite issuing and entering the order to facilitate execution of the eviction order by the Sheriff.
[20] Mr. Mahdieh is, of course, entitled to pursue his appeal even if the eviction order is carried out. However, if Mr. Mahdieh fails to perfect his appeal in accordance with the revised timetable below, his appeal will be dismissed.
C. Extension of time
[21] Mr. Mahdieh has asked for a 10-day extension of time to perfect his appeal because he says the transcript of the Board’s hearing is not ready.
[22] In my directions following the first case conference on November 1, 2024, I ordered Mr. Mahdieh to perfect his appeal no later than January 10, 2025.
[23] Mr. Mahdieh has not acted diligently to obtain a transcript of the Board’s June 11, 2024 hearing. Because of his lack of diligence, the Board was required to send him the recording at least three times and the Court has convened two unnecessary case conferences.
[24] By way of brief overview, I ordered Mr. Mahdieh to file proof that he had ordered a transcript of the June 11, 2024 hearing no later than November 18, 2024. He failed to meet that deadline. On November 14, 2024, I gave Mr. Mahdieh an extension to November 29, 2024 to file proof that he had ordered the transcript. In my November 14, 2024 direction, I wrote the following:
All other dates in the original timetable remain the same. In other words, the deadline for Mr. Mahdieh to serve and file his amended Notice of Appeal (November 22, 2024) is not changed. The deadline for Mr. Mahdieh to serve and file all the materials required for his appeal (January 10, 2025) is not changed.
It is Mr. Mahdieh's responsibility to have a transcript of the hearing prepared in a timely fashion. He should not expect to be granted an extension of time to file his appeal materials because of this delay in ordering the transcripts.
[25] On November 26, 2024, Mr. Mahdieh requested another extension to file proof that he had ordered the transcript. He claimed he had not received the recording of the June 11, 2024 hearing from the Board. I convened a second case conference on November 28, 2024. During that case conference, Counsel for the Board, Ms. Naidoo, confirmed that a link to the recording was sent to Mr. Mahdieh on November 8, 2024. She explained that the link remains active for five days. She confirmed that she had re-sent Mr. Mahdieh the link before the case conference. Mr. Mahdieh confirmed that he had received the link to the recording from the Board. I ordered Mr. Mahdieh to file proof that he had ordered the transcript by December 13, 2024.
[26] On December 12, 2024, Mr. Mahdieh wrote to the Court and claimed once again that he did not have a copy of the recording of the June 11, 2024 hearing despite his assurance at the November 28, 2024 case conference that he had it.
[27] A third case conference was held on December 16, 2024. By that time, Ms. Naidoo had sent Mr. Mahdieh a link to the recording for a third time. At the case conference, Mr. Mahdieh confirmed he had downloaded the recording and ordered the transcript.
[28] I am very concerned about Mr. Mahdieh’s lack of diligence in perfecting his appeal. Nevertheless, granting Mr. Mahdieh a short extension will not jeopardize the hearing date in this matter, which is April 15, 2025. I am also satisfied that neither Ms. Ng nor the Board will be prejudiced if Mr. Mahdieh is given a short extension if the deadline for their materials is also extended.
[29] I, therefore, grant Mr. Mahdieh one final indulgence and the timetable for the exchange of materials is amended as follows:
- Mr. Mahdieh shall serve and file all required materials for his appeal (transcript, appeal book, factum) no later than 3:00 pm on Monday January 20, 2025.
- The Landlord shall serve and file its responding materials, including factum, no later than February 24, 2025.
- The Board shall serve and file its materials on the appeal no later than March 17, 2025.
- The tenants may file any proper reply no later than March 24, 2025.
[30] The hearing date remains April 15, 2025.
[31] Mr. Mahdieh should not expect any further indulgences from the Court. And if Mr. Mahdieh fails to prefect his appeal by 3:00 p.m. on January 20, 2025, Ms. Ng can request in writing that the appeal be dismissed. Counsel for Ms. Ng can simply send an email to the Divisional Court office and copied to my assistant, Alison Roberts (alison.roberts@ontario.ca), if Mr. Mahdieh fails to perfect his appeal as required.
D. Conclusion and Costs
[32] Ms. Ng’s motion lifting the stay of the Board’s order is granted with immediate effect. Ms. Ng seeks $3,451.02 in substantial indemnity costs on her motion. As the successful party, Ms. Ng is presumptively entitled to costs. I am satisfied this is an appropriate case to award costs, which shall be fixed at $3,000 inclusive of HST and disbursements.
[33] Mr. Mahdieh’s request for a 10-day extension of time is also granted on the terms set out above.
Davies J.
Date: January 13, 2025