Hunt v. Trevisan, 2025 ONSC 487

CITATION: Hunt v. Trevisan, 2025 ONSC 487

DIVISIONAL COURT FILE NO.: 309/24

DATE: 20250123

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jabari hunt, Appellant

AND:

meaghan trevisan, roberto fontana, lorna myers, Respondents

BEFORE: Shore J.

COUNSEL: Yinka Oyelowo, for the Appellant

Ana Kraljevic, for the Respondents

Eli Fellman, 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 April 9, 2024, and the reconsideration decision dated April 15, 2024.

[2] For the following reasons, the motion is granted, and the stay of eviction is lifted.

[3] On April 9, 2024, the LTB terminated the tenancy because the Landlord requires vacant possession of the property for their own residential occupation. The Tenant requested a review. The LTB denied the review on April 15, 2024.

[4] The Tenant appealed the LTB's decision to this Court. They obtained a certificate of stay of eviction pending the hearing of their appeal. On June 7, 2024, the Divisional Court issued an automatic certificate of stay.

[5] 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.

[6] However, as of May 1, 2024, the Tenant stopped paying the monthly rent.

[7] The Landlord then filed an application to terminate the tenancy for non-payment of rent. The second application's hearing was scheduled for October 2024 (the "second application").

[8] On October 1, 2024, the Divisional Court held a case management conference with respect to the appeal of the original orders. The court directed the Tenant to pay the ongoing monthly rent, as well as $500 per month on the 15th of each month, until the arrears had been paid in full, as a condition of continuing the stay.

[9] As of October 2024, the Tenant resumed paying the ongoing monthly rent but failed to make any payments towards the arrears.

[10] On November 6, 2024, the LTB issued an order with respect to the second application, terminating the tenancy, for a second time, for nonpayment of rent, unless the Tenant voided the order by paying $12,536 on or before November 17, 2024 (the "second LTB order"). The rental arrears were calculated to be $10,303.20 at the time. The Tenant did not make the payment.

[11] The Tenant sought a review of the second LTB order. The LTB affirmed the order at the review. The Tenant filed an appeal of the second LTB order as well as the review order to the Divisional Court.

[12] On December 17, 2024, the parties attended a further case management conference. At that conference, Justice Davies issued a further caution to the Tenant as follows:

Counsel for the Respondent Landlord told me that the tenant has not complied with the directions I gave after the October 1, 2024 case conference. At that time, I directed the tenant to "pay the landlord $500 towards the rental arrears on November 15, 2024 and on the 15th day of each month thereafter until the arrears are fully paid or until this appeal is decided." Counsel for the Respondent Landlord said the tenant did not make the $500 payment on November 15, 2024 or December 15, 2024 as required.

As I said in my earlier direction, the landlord may bring a motion in writing before me for an order lifting the stay of the Board's order if the tenant has not complied with my direction. Any motion to lift the stay of the Board's order must be supported by evidence of the non-payment and must be served on the tenant. If such a motion is brought, the tenant will be given an opportunity to file any responding evidence and submissions to explain any alleged non-compliance before the motion is considered.

[13] In my Direction, dated January 10, 2025, I write as follows:

In prior directions, Justice Davies required continued payments of the ongoing rent as well as payment of $500 per month towards the outstanding arrears, as a condition of continuing the stay. Automatic stays were put in place for both appeals. The Respondent has served a motion to lift the stays, submitting that the Appellant failed to make the payments. The Appellants did not attend today, but their counsel advised that payments were made. The Appellants could not be reached by counsel, despite a recess of the court. The parties and counsel are to attend a short conference on January 13, 2025, at 9am via Zoom. Prior to the attendance the Appellants are to upload proof that the payments were made as required under the direction of Justice Davies. If the payments were not made, I will determine the motion, in writing, on January 17, 2025. The Respondent shall serve and file their responding materials on or before January 15, 2025, by 4pm, including uploading them onto CaseCenter.

[14] As directed, the parties attended a further conference on January 13, 2025. Although the Tenants uploaded proof of payment of the monthly rent for October, November, and December, they acknowledged that no payments had been made towards the outstanding arrears.

[15] In accordance with Justice Davies' Direction, the Landlord brought this motion for an order lifting the stay of eviction.

[16] The Tenant does not dispute that they failed to make payment towards the arrears. The Tenant submits that they are unable to make payments towards the arrears because of conflicting orders, being the Direction of this Court, dated October 1, 2024, and the second LTB order, dated November 6, 2024.

[17] There is nothing contradictory in the decisions. Both orders required the Tenant to pay their arrears of rent. The Tenant failed to pay the arrears under either order. Had the Tenant paid the arrears of $10,303.20 they would have satisfied the Direction of this Court.

[18] In their material, the Tenant erroneously assumes that Justice Davies' Direction, dated October 2, 2024, somehow sets the monthly rent, and provides the Tenant with an 'abatement' of rent from June 2024 until September 2024, which is binding on the LTB.

[19] The Direction sets out the conditions to maintain the stay of execution, nothing more. The Direction was clear that if the payments were not made, a motion could be brought to lift the stay. The Direction has no bearing on the LTB proceedings, despite the Tenant's submissions to this Court and to the LTB to the contrary. Throughout their submissions, the Tenant suggests that the Landlord and the LTB failed to listen to Justice Davies 'instructions'. The Tenant is wrong. Justice Davies' Direction was for the Tenant. If the Tenant wanted to maintain the stay of execution, the payments needed to be made. These were not Directions, instructions, or orders binding on the LTB, nor on the Landlord.

[20] 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. The Tenant failed to pay rent for several months and owes arrears of over $10,000.

[21] 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.

[22] I am satisfied that this is an appropriate case to lift the stay of the LTB's eviction order. The Tenant owes arrears of over $10,000. Justice Davies made a clear Direction following the case management conference, requiring payment towards the arrears. The consequences of failing to make the payment were clear. The Tenants have been given ample warning of the consequences should they fail to make the payments as required, and as set out in at least three Directions of this Court. It would be an abuse of the Divisional Court's process to allow the Tenant to continue to live in their unit without paying their outstanding rent. Paying ongoing rent is not sufficient.

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

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

[25] The Landlord may provide an order in those terms for my signature, without the necessity of the Tenant agreeing as to form and content.

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

Shore J.

Date: January 23, 2025