CITATION: Maftoun v. 2146137 Ontario Inc., 2015 ONSC 2410
COURT FILE NO.: CV-13-495577 DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BITA MAFTOUN Plaintiff
– and –
2146137 ONTARIO INC. and BAKISH MAND AKA BOB MAND Defendants
Self-represented and acting in person
Harvey Mandel, Agent for Counsel for the Defendants
HEARD: April 13, 2015
ENDORSEMENT
Diamond J.:
[1] On April 13, 2015, two motions were scheduled to be argued before me. These motions represented the latest attendances in a continuing and tumultuous battle between the plaintiff (as tenant) and the defendants (as landlord) arising out of the commercial lease of 1753 Albion Road, Unit 3, Toronto (the “property”).
[2] The defendants’ motion seeks, inter alia, an order that the plaintiff pay (a) the sum of $23,085.90 (representing what the defendants claim to be outstanding rent arrears), and (b) all future monthly rent payments without deduction or abatement, into Court to the credit of this action.
[3] The plaintiff brought her own cross-motion seeking various heads of relief, including declaratory relief that the defendants “are in continuing breach of the lease by not providing basic amenities as provided pursuant to the lease”, and a mandatory order requiring the defendants to provide an air conditioning unit to the property.
[4] Multiple Motion Records were filed, together with a brief transcript from the cross-examination of the defendant Bakish Mand aka Bob Mand. Both parties filed factums and both motions were scheduled to be heard together in two hours.
[5] Pursuant to the Endorsement dated January 27, 2014 of Madam Justice Brown, at the outset of this proceeding the plaintiff obtained an urgent, interim injunction restraining the defendants from entering the property and terminating the lease. Up to that point, the defendants had taken the position that no lease existed in fact or in law between the parties. As part of her Endorsement, Justice Brown also granted declaratory relief confirming that the plaintiff had a valid existing lease of the property.
[6] While the parties differ as to the total amount of rental arrears owing to the defendants, they are in agreement that the plaintiff has not met her payment obligations under the commercial lease.
[7] While Mr. Mandel was making submissions in support of the defendants’ motion, the plaintiff objected to what she claimed was a legal argument which was not contained or set out in the defendants’ factum. Essentially, Mr. Mandel argued that when the plaintiff obtained an interim injunction from Justice Brown, and was not excused from her obligations under Rule 40.03 of the Rules of Civil Procedure, the plaintiff was bound to honour her undertaking as to damages and thus implicitly or explicitly agreed to pay the outstanding arrears. This was in addition to other arguments advanced by Mr. Mandel on behalf of the defendants.
[8] The plaintiff requested an adjournment of the motions to seek legal advice in response to this new argument, which for the record was not included in the defendants’ factum. During the course of her submissions, the basis for the plaintiff’s request for an adjournment of the motions expanded to include a need by the plaintiff to reconstitute her cross-motion as a motion for summary judgment. Essentially, the plaintiff submitted that based upon the evidence in the Record (and to be filed if the adjournment was granted), there were no genuine issues requiring a trial of her action.
[9] While the defendants did not strenuously oppose the adjournment for the scheduling of the plaintiff’s contemplated motion for summary judgment (with the defendants’ motion proceeding at the same time), Mr. Mandel submitted that as a term of the adjournment the plaintiff ought to be ordered, at a minimum, to remit payment of all future rental obligations under the lease (i.e. from this day forward) into Court.
[10] The plaintiff objected to this request, claiming (as she did in her factum) that the actions and omissions of the defendants have caused her significant financial hardship including the inability to market and sell her furniture products due to damages directly caused by the landlord’s breaches.
[11] It was the plaintiff who sought and obtained the relief before Justice Brown declaring the lease to be valid, subsisting and enforceable against both parties. Clause 2.9 of the lease provides as follows:
The Tenant acknowledges and agrees that the payments of Rent and Additional Rent provide for in this Lease shall be made without any deduction for any reason whatsoever unless expressly allowed by the terms of this Lease or agreed to by the Landlord in writing.
[12] In my view, the obligation to remit payment of rent is fundamental to the lease. The plaintiff’s withholding of rental payments, described by the defendants as “self-help” actions, must be addressed by this Court before the motions are rescheduled. The current status quo, ie. ongoing non-payment of rent, cannot continue.
[13] No payments have been made under the lease since September 2014, and between July-September 2014 the plaintiff only made partial payments in amounts which she unilaterally chose.
[14] While I understand the plaintiff’s argument that the defendant’s breaches and other actions have allegedly ruined her business operations, that is a position to be advanced at her contemplated motion for summary judgment or trial, and until then the fundamental terms of the lease must mean something.
[15] In the circumstances of this case, and in the interest of justice, I make the following Order:
The plaintiff shall forthwith schedule her motion for summary judgment on a date to be cleared with counsel for the defendants and the Court at the earliest possible opportunity.
The defendants’ motion seeking, inter alia, payment of rental arrears and future rent into Court shall be heard at the same time and/or following the defendants’ motion for summary judgment.
Both motions shall be scheduled to be argued together for a minimum of half a day, although the parties may book up to a full day if they believe same to be necessary.
Commencing on May 1, 2015, the plaintiff shall pay the sum of $1,250.00 on a monthly basis into Court to the credit of this proceeding. These payments shall continue pending further Court order or agreement between the parties, and may be offset and/or taken into account in the event the defendants’ motion is ultimately granted.
[16] Costs of today’s attendance are reserved to the presiding Judge hearing the plaintiff’s motion for summary judgment and the defendants’ motion for payment into Court.
Diamond J.
Released: April 14, 2015
CITATION: Maftoun v. 2146137 Ontario Inc., 2015 ONSC 2410
COURT FILE NO.: CV-13-495577
DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BITA MAFTOUN Plaintiff
– and –
2146137 ONTARIO INC. and BAKISH MAND AKA BOB MAND Defendants
ENDORSEMENT
Diamond J.
Released: April 14, 2015