Court File and Parties

COURT FILE NO.: CV-18-00602013 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Our Lady of Victory Senior Citizens’ Residence (York) Inc. Applicant – and – Daniel Mercedes Respondent

Counsel: B. Wasiel, for the Applicant Self-represented, for the Respondent

HEARD: September 27, 2018

Reasons for Decision

CAROLE J. BROWN, J.

[1] The applicant, Our Lady of Victory Senior Citizens’ Residence (York) Inc. (the applicant), brings this application for a permanent injunction restraining and preventing the respondent, Daniel Mercedes, from attending at or within 100m of the property known municipally as 200 Dora Spencer Rd., Toronto, Ontario M6M 5G5 and for an order authorizing and directing the appropriate law enforcement agencies to give force and effect to the order granted by this Court as may be required or necessary from time to time.

[2] The applicant is the owner and operator of Our Lady of Victory Place, an apartment building for individuals over the age of 60. It is operated in accordance with the social housing program established by the province of Ontario. It is a mixed use building containing units for which market rent is charged and units geared to income.

[3] Ms. Meregilda Mercedes has rented the unit in the applicant building from February 1, 2012, with her rent geared to income. In November 2014, Ms. Mercedes requested the applicant to permit her son, the respondent, Daniel Mercedes, to move into the unit and become a tenant. The necessary paperwork was done, Mr. Mercedes entered into the rental agreement, after the necessary documentation was completed with the Toronto Social Housing Unit, and he moved into the unit on about November 19, 2014.

[4] The evidence indicates that from approximately the Fall of 2015 to the fall of 2016, Mr. Mercedes was belligerent, argumentative and accusatory with staff and others in the building. The building began to receive complaints from tenants about Mr. Mercedes behaviour.

[5] Based on the evidence of the applicant, the police were called on a number of occasions. Over the Easter weekend, 2017, the police removed Mr. Mercedes from the unit and thereafter, Ms. Mercedes asked the applicant to prevent Mr. Mercedes from returning to the building and to her unit. The applicant advised Ms. Mercedes that it was not possible to do so as Mr. Mercedes was still listed as a tenant.

[6] On May 1, 2017, Ms. Mercedes advised the applicant that Mr. Mercedes had moved out, had not been to the building since April 17, 2017 and was not moving back. She executed an affidavit to that effect.

[7] On or about May 18, 2018, Ms. Mercedes advised the applicant that Mr. Mercedes intended to move back into the unit. However, the applicant refused to permit Mr. Mercedes to become a tenant again due to his past behaviour. Nevertheless, Mr. Mercedes continued to attend the building from May 18, 2018, and began announcing to anyone who would listen that he would be moving back in.

[8] The provisions of the tenancy agreement contain clause 13.01, Guest Policy, which states:

Your guests and visitors will be bound by all the rules and regulations for the building for the duration of their stay. You acknowledge that you are responsible for the behaviour of your guests or visitors and for any damage caused by them. While use of the common areas, as explained above, is reserved for tenants of the building, your visitors and guests are entitled to use these facilities while they are staying with you. You understand, however, that any use of the common areas by your guests or visitors is a privilege which can be cancelled at any time with or without notice by us and is otherwise subject to the terms of this agreement and the rules and regulations attached as a schedule hereto. We reserve the right to prohibit any of your guests or visitors from using the common areas if we believe that such prohibition would be appropriate in the circumstances. We also reserve the right to restrict the access of any guest or visitor to the building altogether, subject to the approval of the building manager.

[9] The evidence indicates that letters were written to both Ms. Mercedes and Mr. Mercedes confirming that Mr. Mercedes was not allowed to move into or reside in the unit as he would be considered a trespasser and the police would be notified. Despite this, in June 2018, Mr. Mercedes forced his way into the building and unit, and would not leave.

[10] Based on all of the evidence, the tenants, who are senior citizens, as well as the employees of the building, feel harassed, intimidated and frightened by Mr. Mercedes. He has been aggressive, harassing, intimidating and demanding toward both tenants and staff, lingers around the entranceways smoking marijuana and tobacco, smokes on the property and approaches the tenants in an effort to have them join him in smoking marijuana.

[11] According to the second affidavit of Virginia Ball-Simon, the building administrator, on August 1, 2018, Ms. Mercedes delivered a letter to Ms. Ball-Simon, in which she purportedly consented to Daniel Mercedes and her other son acting on her behalf at the building. However, Ms. Ball-Simon stated in her affidavit that Ms. Mercedes appeared frightened and told her that Mr. Mercedes wanted her to sign the letter.

[12] Ms. Ball-Simon, in her second affidavit, stated that Jill Kirkland, one of the social workers, had written a letter expressing her concerns for the safety and well-being of the tenants in the building and specifically stated that Mr. Mercedes makes inappropriate and unwanted comments of a sexual nature to females; attempts to sell drugs to tenants and the vulnerable population of seniors in the building; sells drugs in front of the building; makes threats of violence to the clients, bullies them, and displays verbal outbursts in the building.

[13] Further, David Finnegan of the Roman Catholic Archdiocese of Toronto, which has responsibility for overseeing matters involving the building, advised Ms. Ball-Simon, during a meeting, that Mr. Mercedes had threatened to kill Ms. Ball-Simon if his mother died.

[14] Thereafter, Ms. Ball-Simon attended at the local police station, given her concern for her safety and the safety of the building. Mr. Mercedes was charged with uttering threats to her and recognizance of bail was entered into and September 18, 2018. The conditions set forth in that Recognizance of Bail include:

1. Do not contact or communicate in any way either directly or indirectly by any physical electronic or other means with the following: Virginia Ball-Simon; and
2. Do not possess any weapons as defined by the Criminal Code.

[15] Mr. Mercedes is required to attend Court again on Thursday, October 18, 2018.

[16] Mr. Mercedes denies all of the above and submits that this Court has no jurisdiction to hear the application pursuant to Rule 114.05(3)(g), as the orders sought are not ancillary to relief claimed in a proceeding properly commenced by a notice of application.

Analysis and Conclusion

[17] As regards the constitution of this proceeding, and the jurisdiction of this Court, I am satisfied that the relief sought, as set forth in the notice of application is properly before this Court, and that this Court has jurisdiction to determine the issues arising in the application.

[18] It appears clear from the evidence adduced on this application that both staff and tenants are harassed and intimidated by Mr. Mercedes and are fearful of him due to his belligerent conduct. While Mr. Mercedes was a tenant in the building for a period of time, he thereafter moved out of the building and he is no longer a tenant. Approximately one year later, he sought to return to the building. However, due to the concerns of the management as a result of his previous conduct and behaviour, they did not give authorization for him to return. He is not currently a tenant of the building, but was, at most, invited by his mother to attend the building, where he attempted to remain. The rules of the building permit an invitee to remain for a maximum of one month. Also, as stated in the guest policy, the building has the discretion to restrict access of any guest or visitor altogether.

[19] It is of note that in the various court documents, as well as on his disabled parking permit, he has listed his address as other than the address of his mother. Only on the recognizance of bail did he list his address as that of his mother. Indeed, in his supplementary responding application, which contains his affidavit executed September 21, 2018, he states at paragraph 5:

5. I acknowledge that I have been attempting to convince the applicant to accept me as a tenant again in the building. As a result of this court process, I now understand that I cannot force the applicant to accept me as a tenant again. However, I should not be prevented from seeing my mother who resides in the building.

[20] Thus, he accepts that the building has the discretion to wholly restrict his access to the building: i.e. to refuse him entry.

[21] In this case, there is significant evidence that the respondent, by his behaviour and threats, has caused fear and imitation in both the building administration and tenants of the building.

[22] In all the circumstances, I am satisfied that a permanent injunction should issue restraining and preventing the respondent, Daniel Mercedes, from attending at or within 100m of the property known municipally as 200 Dora Spencer Rd., Toronto, Ontario M6M 5G5, and so order. I further authorize and direct the appropriate law enforcement agencies to give force and effect to the order granted by this Court as may be required or necessary from time to time.

Costs

[23] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J. Released: September 28, 2018

COURT FILE NO.: CV-18-00602013 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Our Lady of Victory Senior Citizens’ Residence (York) Inc. Applicant – and – Daniel Mercedes Respondent REASONS FOR DECISION Carole J. Brown, J. Released: September 28, 2018