2019 ONSC 2678

Court File and Parties

COURT FILE NO.: CV-19-140069 DATE: 20190429 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Sunrise North Senior Living Ltd. C.O.B. Sunrise of Richmond Hill, Plaintiff AND: The Sheriff of the Regional Municipality of York, Enforcement Office of the Superior Court of Justice (Newmarket), and Rohan Salmon, Defendants

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Robyn Grant, Counsel for the Plaintiff Robert Lawson and Chantelle Blom, Counsel for the Defendant, The Sheriff of the Regional Municipality of York and the Enforcement Office of the Superior Court of Justice (Newmarket) Melissa Miller, Counsel for the Defendant, Rohan Salmon

HEARD: April 26, 2019

Endorsement

Introduction

[1] This Application for Judicial Review is brought by the applicant, Sunrise North Senior Living Ltd. (Sunrise), on an urgent basis for an order in the nature of mandamus compelling the Sheriff of the Regional Municipality of York (the Sheriff) to evict the respondent, Rohan Salmon, from rental units operated by Sunrise, pursuant to eviction orders of the Landlord and Tenant Board (LTB) dated November 3, 2017 and April 23, 2018. Sunrise takes the position that the application is urgent and should proceed before a single judge of the Superior Court pursuant to s. 6(2) of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1 (the JRPA).

[2] The Sheriff takes the position that the application is not urgent, and should proceed before a full panel of the Divisional Court in accordance with s. 6(1) of the JRPA. A hearing before a full panel can be scheduled for May 29, 2019. In the alternative, the Sheriff argues that the order in the nature of mandamus should not be granted because the Sheriff is already making every effort to carry out the eviction order in a timely and safe manner.

[3] The issue of urgency turns primarily on the question of whether the eviction order expires on June 1, 2019. The Sheriff takes the position that the eviction order expires on June 1, 2019, and cannot be enforced after that date unless it is renewed.

[4] Sunrise takes the position that the eviction order does not expire. That said, Sunrise argues that this application is urgent because if the Sheriff is correct, the eviction order may expire before the full panel of the Divisional Court is able to render its decision, or, even if the order of mandamus is issued immediately on May 29, 2019, the Sheriff may not have sufficient time to comply with an order of mandamus before the eviction order expires.

[5] After hearing from the parties I decided that if the eviction order did expire on June 1, 2019, this Court has the authority to grant a one-year renewal of that order. If the eviction order did not expire, then the one-year renewal would be redundant but would not prejudice any party. In either event, granting the one-year renewal would eliminate any urgency in this application, and permit this application for judicial review to proceed before a full panel of the Divisional Court on May 29, 2019, or whatever alternative date was agreed to by the parties. Counsel for the Sheriff undertook to proceed with this motion on May 29, 2019 if that date is still available.

[6] Accordingly, at the conclusion of the hearing I advised counsel that I would renew the eviction order for one year without prejudice to the applicant’s right to argue that the eviction order did not expire. Pursuant to s. 6(3) of the JRPA the application is to be transferred to the Divisional Court for a hearing on May 29, 2019, or whatever other day is agreed to by the parties. The Sheriff consented to this proposed order and Mr. Salmon took no position on the renewal of the eviction order.

[7] I advised counsel that I would provide more detailed written reasons for this decision. These are those reasons.

Judicial Review Procedures Act

[8] The relief requested in the Application for Judicial Review is an order in the nature of mandamus, to require the Sheriff to enforce the eviction order. Subsections 6 (1) – (3) of the JRPA provide:

6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court.

(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

(3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court.

Facts

[9] Sunrise is a retirement home operating pursuant to the Retirement Homes Act, 2010, S.O. 2010, c. 11. Its primary business is providing housing and services geared toward the elderly, those with dementia and nearing end-of-life.

[10] Mr. Salmon is a paraplegic with morbid obesity. He resides in a rental unit operated by Sunrise. The tenancy was governed by the Residential Tenancies Act, 2006, S.O. 2006, c. 17. On July 26, 2017, Sunrise applied to the LTB for an order to terminate Mr. Salmon’s tenancy for non-payment of rent.

[11] Mr. Salmon was represented by counsel and consented to an Order by the LTB dated November 3, 2017 that, inter alia, the tenancy between Mr. Salmon and Sunrise was terminated, Mr. Salmon was to move out of the unit on or before May 31, 2018, the Sheriff would give vacant possession of the unit to Sunrise on or after June 1, 2018 and if the unit was not vacated on or before May 31, 2018, Sunrise could file the Order with the Sheriff so that eviction could be enforced. The LTB Order also required Mr. Salmon to pay a daily rate of $202.96 for the remainder of his tenancy.

[12] Mr. Salmon did not fulfil the payment obligations contained in the LTB Order, and on December 11, 2017, Sunrise applied to the LTB for relief on the basis of Mr. Salmon’s breach of the November 3, 2017 Order. On March 7, 2018 the LTB found Mr. Salmon in breach of his payment obligations and issued an Order requiring him to move out by April 7, 2018. By agreement on April 19, 2018, the parties reinstated the original move-out date of May 31, 2018, and on April 23, 2018 the LTB issued an Order reflecting this agreement.

[13] Mr. Salmon did not move out by May 31, 2018, and on June 11, 2018 Sunrise filed the Eviction Order with the Court Enforcement Office (Newmarket) for enforcement by the Sheriff.

[14] Sunrise has presented detailed affidavit evidence outlining the efforts they have made to have the Sheriff enforce the Eviction Order since June 11, 2018. I will not review all of those efforts or correspondence in detail, but suffice it to say that Sunrise has been diligent, patient and cooperative in its efforts to seek the enforcement of this Order. Several eviction dates have been scheduled, and later abandoned by the Sheriff’s office. Several court appearances were made and directions obtained from the Court pursuant to Rule 60.17 of the Rules of Civil Procedure in an unsuccessful effort to facilitate a resolution of the matter. Alternative accommodation has been identified, but has been rejected by Mr. Salmon.

[15] On March 12, 2019, following several correspondences from counsel for Sunrise, counsel for the Sheriff advised that the Sheriff was not prepared to carry out the evictions absent Mr. Salmon providing consent to be moved to one of the alternative accommodation options identified. Counsel for the Sheriff points to the provisions of the Long Term Care Homes Act, 2007, S.O. 2007, c. 8, s. 7, the Retirement Homes Act, 2010, S.O. 2010, c. 11, s. 53(1), and various provisions of the Public Hospitals Act, R.S.O. 1990, c. P.40, to support its position that Mr. Salmon cannot be moved into these facilities without his consent or the consent of the facility.

Expiration of the Eviction Order

[16] In addition, in March 2019, counsel for the Sheriff advised counsel for Sunrise that it is the Sheriff’s position that the Eviction Order expires one year from the date that it was filed with the court. The Sheriff took the position that if the eviction order were not renewed it could no longer be enforced after June 1, 2019.

[17] This position arises from a combination of s. 85 of the Residential Tenancies Act, and Rule 60.10(3) of the Rules of Civil Procedure.

[18] Section 85 of the Residential Tenancies Act, provides that “An order evicting a person shall have the same effect, and shall be enforced in the same manner, as a writ of possession”.

[19] Rule 60.10 provides the manner in which a writ of possession is enforced. Subsection 60.10 (3) provides:

(3) A writ of possession remains in force for one year from the date of the order authorizing its issue, and may, before its expiry, be renewed by order for a period of one year from each renewal.

[20] The Sheriff argues that if an eviction order is enforced in the same manner as a writ of possession, it must be subject to the same temporal limits as a writ of possession.

[21] Sunrise argues that that “shall be enforced” refers only to the manner of enforcement by the sheriff, but does not incorporate the temporal limits that apply to a writ of possession. Eviction orders made by the LTB under the Residential Tenancies Act are subject to the expiry period in s. 81 of that Act, which provides:

An order of the Board evicting a person from a rental unit expires six months after the day on which the order takes effect if it is not filed within those six months with the sheriff who has territorial jurisdiction where the rental unit is located.

[22] There is no dispute that the LTB eviction order was filed with the sheriff within six months of the day on which the order took effect. Therefore the eviction order did not expire under the terms of the Residential Tenancies Act.

[23] There is no process in the Residential Tenancies Act for the LTB to renew an eviction order. Sunrise argues that there is no straightforward procedural step to renew an eviction order at court. Rule 60.10(3) does not identify which body – the LTB or the Court – has the authority to grant the renewal of an eviction order.

[24] Sunrise also relies on the decision of the Ontario Court of Appeal in the case of Municipality of Metropolitan Toronto v. Bremner, (1980), 30 O.R. (2d) 385, 1980 CarswellOnt 423 (C.A.), which held that writs of possession obtained under s. 106 of the former Landlord and Tenants Act, R.S.O. 1970, c. 236 were not subject to the one year expiry period under Rule 568 of the former Rules of Practice. The Courts analysis focused on the substantive differences between the form of a writ of possession under the Rules of Practice and the form of a writ of possession under the Landlord and Tenants Act; see Courtland Mews Co-operative Homes Inc. v. Romero, 2005 CarswellOnt 4942 at para. 14. In a nutshell, Sunrise argues by way of analogy that Rule 60.10(3) does not apply to eviction orders made by the LTB under the Residential Tenancies Act.

[25] Sunrise was therefore faced with a conundrum: on the one hand, it took the position that the eviction order would not expire on June 1, 2019. It did not want to prejudice this position by applying for an extension. Moreover, there is no obvious procedure for it to apply for an extension since the Residential Tenancies Act does not provide a process by which the LTB can extend an eviction order.

[26] On the other hand, the Sheriff was taking the position that the eviction order would expire on June 1, 2019, and could not be enforced after that date unless it was renewed before it expired. On the date that Sunrise brought this Application for Judicial Review, counsel for the Sheriff was unable to confirm the process by which Sunrise could apply for such a renewal.

[27] Not wanting to take a chance that the eviction order would expire, Sunrise brought this application on an urgent basis so that the extant eviction order would be enforced by the Sheriff before June 1, 2019.

[28] At the hearing before me, counsel for the Sheriff was able to confirm that it was the Ontario Attorney General’s position that the renewal of the eviction order under Rule 60.10(3) could be made in accordance with the same process as a renewal of a writ of possession under that provision, that is by application to the Superior Court. He also consented to an order to extend the eviction order for a period of one year, without prejudice to Sunrise’s right to maintain its position that the temporal limit in Rule 60.10(3) does not apply to the eviction notice and, therefore, the eviction order does not expire. As indicated, counsel for Mr. Salmon took no position on this issue.

[29] Given this position by counsel for the Sheriff, it is not necessary for me to decide this interesting legal issue of whether the temporal limit in Rule 60.10(3) applies to a LTB eviction order.

[30] If Sunrise is correct, and the eviction order does not expire, the Application for Judicial Review does not qualify as an urgent matter, and can wait to be heard by a full panel of the Divisional Court pursuant to s. 6(3) of the JRPA. While I understand Sunrise’s frustration with the length of time the eviction process has taken, and the apparent ability of Mr. Salmon to drag this matter out and to disregard the LTB Orders he has consented to, this understandable frustration does not rise to the level of urgency when a full panel of the Divisional Court can hear this case next month.

[31] If the Sheriff’s interpretation of Rule 60.10(3) is correct, then I agree that the Superior Court has the authority to renew the eviction order for a period of one year pursuant to that provision. If there was any real doubt about that authority, I could fall back on Rule 2.03, which authorizes the court to: “only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.”

[32] If Rule 60.10(3) requires the annual renewal of an eviction order, there must obviously be some process in place for the landlord to obtain that renewal. If an eviction order is enforced in the same manner as a writ of possession, logic dictates that an eviction order can be renewed in the same manner as a writ of possession: by the Superior Court.

[33] The renewal of the eviction order for a period of one year means that the Application for Judicial Review does not qualify as an urgent matter, and can wait to be heard by a full panel of the Divisional Court pursuant to s. 6(3) of the JRPA.

[34] I am advised by counsel that in order for this matter to proceed before a full panel of the Divisional Court on May 29, 2019, counsel are required to submit a timetable for the delivery of materials, on consent of all parties, and the Administrative Judge will then consider whether to grant permission for this matter to be scheduled. It would appear that virtually all of the material required for that hearing was filed in this proceeding, although counsel for Mr. Salmon indicated that she may have additional affidavit evidence relating to Mr. Salmon’s medical condition that she states is relevant to the mandamus issue. There remains one full month before the May 29, 2019 hearing date, and I see no reason why counsel should not be ready for a hearing on that date.

Conclusion

[35] This Court Orders:

a) The eviction orders of the Landlord Tenant Board dated November 3, 2017 and April 23, 2018, are renewed for a period of one year from today’s date.

b) This renewal is granted without prejudice to the right of Sunrise to maintain its position that the expiry period in Rule 60.10(3) does not apply to an eviction order made by the Landlord Tenant Board pursuant to the Residential Tenancies Act.

c) Pursuant to s. 6(3) of the JRPA this application is transferred to the Divisional Court in Toronto. This matter should proceed to a hearing on May 29, 2019, if approved by the Administrative Judge, or such other date as agreed to by counsel.

d) The costs of today’s hearing are reserved to the panel hearing the application on its merits.

Justice R.E. Charney Date: April 29, 2019