Court File and Parties
CITATION: Sikakane v. 2-12 Kingston Residences Corp., 2025 ONSC 3231
DIVISIONAL COURT FILE NO.: 111/25
DATE: 20250530
SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT
RE: CHARMAINE TANYA SIKAKANE, Appellant AND 2-12 KINGSTON RESIDENCES CORP., Respondent
BEFORE: Faieta J.
COUNSEL: Charmaine Tanya Sikakane, on her own behalf Aaron Dadouch, for the Respondent
HEARD: In writing
ENDORSEMENT
[1] The respondent landlord brings this motion to lift a stay of eviction.
Background
[2] The respondent landlord’s application to evict the appellant tenant for failure to pay rent was granted by the Landlord and Tenant Board on January 8, 2025. The Board found that the lawful rent is $1,785.00 per month and that the rent arrears were $12,258.89 as of December 31, 2024. The Board also dismissed the appellant’s request, pursuant to section 82 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, to raise issues that could be the subject of an application made by the tenant under this Act on the grounds that the appellant had failed to provide the requisite notice and had failed to provide a satisfactory reason for failing to do so. The Board ordered the termination of the tenancy and ordered that the if the appellant did not pay $14,229.89 by January 19, 2025, then the appellant would have to move out of the rental unit by January 19, 2025.
[3] On January 22, 2025, the Sheriff issued a Notice requiring the appellant to vacate the rent on or before February 12, 2025. The appellant filed a notice of appeal with this Court on February 10, 2025. A Certificate of Stay was issued by this Court on February 12, 2025. On March 25, 2025, following a Case Management Conference, I directed that: (1) the appellant pay the ongoing current rent to the respondent on the first day of each month and also pay $400 towards the arrears of rent on the first day of each month; and (2) if the appellant failed to make the payments, as ordered, then the respondent could bring a motion for an order lifting the stay; (3) the appellant file all materials necessary for the appeal (including transcripts, Appeal Book and Factum) no later than April 16, 2025. The hearing of this appeal was set for June 11, 2025.
[4] On April 29, 2025, the respondent advised that the appellant had failed to serve and file her appeal materials.
[5] A further Case Management Conference was held on May 5, 2025. The appellant was advised that she risked having her appeal dismissed if she failed to file the required appeal materials. In addition, the appellant advised that she had not paid rent for April 2025 and May 2025. On May 7, 2025, further directions were issued that required the appellant to serve and file the appeal materials by May 15, 2025.
[6] On May 8, 2025, the appellant sent an email to the Court alleging that she and other residents had been mistreated and that she seeks to have the hearing date rescheduled for the following reasons:
This is to have both parties properly prepared for the exchange of materials and have said materials thoroughly gathered. This is in respect to the court times and efforts, due to hospitalization of myself the Appellant. …
The request is for these following reasons:
Said stay order does not indicate that on-going rent is to be paid while in legal dispute. …
…As said, I have complied and have made arrears payments of $400 for both April and May 2025. …
The motion put in place by the respondents was incorrect and made with false amounts given the amounts PAID were NOT applied to said due amounts …
Due to ongoing physical and mental distress I was hospitalized for two weeks for heart complications that the court has also been made aware of. (Medical records can be produced). Dates from April 21st-May 3rd, 2025. Amongst having a multitude of health issues and physical injuries sustained while living in my home due to negligence from management throughout the past 12 months (Evidence during hearing can be provided).
I have had ongoing harassment from the management team … .
I have had a number of times where attempted break-ins and property damage had been made which has led to further financial disparity due to higher costs in insurance payments and safety measures out of pocket. …
[7] In addition, the appellant made the following requests:
My personal response to the said motion by the respondents to lift the stay order is to ask that this be dismissed and the request to have said rent paid to be frozen until judgment of the hearing is made. I am disputing the amount owed and have based this on tenant rights have my plea heard.
[8] The respondent submits that the appellant is attempting to “game the system” and use the appeal as a means to shield herself from her obligation to pay rent and the arrears. The respondent submits:
(a) A tenant is not entitled to live rent-free pending appeal. Both parties are required to continue to fulfill their respective contractual obligations.
(b) The Divisional Court explicitly conditioned the stay of eviction on the appellant complying with the Court’s directions issued March 25, 2025.
(c) While the appellant paid $400 towards arrears in each of March 2025 and April 2025, the appellant has failed to pay ongoing rent.
(d) The Court should draw an adverse inference from the appellant’s failure to provide particulars and supporting evidence regarding her alleged physical and mental distress and how it has impacted her ability to comply with this Court’s directions.
(e) The appellant’s bald assertions of wrongdoing by the respondent are not true and, in any event, do not entitle the appellant to breach this Court’s directions.
(f) The request for a rescheduling of the hearing is immaterial to the within motion and should not be given any weight.
(g) The appellant currently owes the respondent the sum of $20,614.51 in rent.
[9] Similar circumstances arose in Michael v. Kaiser et al, 2024 ONSC 4326 where the Court found that the tenant was “gaming the system”. As a consequence, the appeals were quashed and the stay of the orders of the Landlord and Tenant Board was lifted. Shore J. stated:
The Divisional Court may quash an appeal in circumstances where the appeal is manifestly devoid of merit or if it is an abuse of process, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.).
From the outset of these proceedings, the Tenant was aware that the Court would require ongoing payment of rent as a condition of continuing the stay (see the direction of Justice O’Brien, dated May 13, 2024, and my endorsement of June 3, 2024). He has made no payments towards the ongoing rent. The Tenant’s arrears are now over $14,000.
No documents have been uploaded to Case Center to perfect the appeal, also as required under my direction of June 3, 2024.
The tenant’s failure to pay rent or move forward with his appeal is an abuse of process. I find that he is “gaming” the system to live rent free under the protection of a statutory stay.
[10] The appellant has failed to meet two deadlines imposed by this Court for filing her appeal materials. She also disregarded this Court’s direction to continue to pay her ongoing rent. The Divisional Court has held for at least a decade that a “tenant is not entitled to live in a rental unit free pending an appeal”: Sivakova v Timbercreek Asset Management, 2016 ONSC 281. I find that these circumstances amount to an abuse of process. For these reasons, the stay of the Order of the Landlord and Tenant Board in File LTB-L-065585-24 is lifted and the appellant’s request to reschedule the hearing of her appeal is dismissed.
Faieta J.
RELEASED: May 30, 2025