Court File and Parties
DATE: 20200408
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ELOISA SLIMMON-WEBER also known as ELOISA NEGRINI, carrying on business as LIBERTY MOVEMENT AND WELLNESS, Applicant
AND:
VINCENZO RACCO, Respondent
BEFORE: Sanfilippo J.
COUNSEL: Leora Wise, for the Applicant
Zaid Sayeed, for the Respondent
HEARD: April 7, 2020
ENDORSEMENT
[1] The Applicant, Eloisa Slimmon-Weber also known as Eloisa Negrini, carrying on business as Liberty Movement and Wellness, requested an urgent motion to seek an interim injunction to restrain the Respondent, Vincenzo Racco, from evicting her from a second floor rental unit located at 983 Dovercourt Road, Toronto (the “Premises”). On April 3, 2020, Myers, J. ordered that the parties attend at an urgent case conference, by telephone, on April 7, 2020. I conducted the case conference at that time and issued orders that I will set out in this Endorsement.
A. Procedural Background
[2] The parties do not dispute that the Applicant entered into a ten-year lease with the Respondent on February 1, 2015, for the rental of the Premises (the “Lease”). The Applicant deposed that since then, she has conducted a yoga/ pilates studio and wellness centre from the Premises. The Applicant alleges that she incurred the cost of leasehold improvements in relation to her use of the Premises, and that the lease is in good standing. The Respondent does not agree.
[3] On or about July 9, 2019, the Respondent served the Applicant with a Notice of Default, alleging that the Applicant was in default of the Lease by reason of operating a commercial business in contravention of the applicable zoning by-law, and demanded that the Applicant vacate the Premises within thirty days. The Applicant denied, maintaining that the Respondent knew, throughout, the commercial nature of her tenancy of the Premises. The Applicant contended that the Respondent’s motivation for evicting the Applicant is his objective of renovation and re-development of the property into a main level commercial use, a second floor residential use in the unit currently occupied by the Applicant, and a newly-developed third floor residential unit. The Respondent did not dispute that these re-development initiatives are in process.
[4] The Applicant submitted that on August 7, 2019, two days before the Respondent’s thirty day deadline for possession of the Premises, the Respondent locked the Applicant out of the Premises by changing the door locks.
[5] On August 9, 2019, the Applicant initiated this Application, seeking an Order granting the Applicant relief from forfeiture of the Lease, an Order declaring the validity of the Lease, an interim injunction restraining the Respondent from restricting her access to the Premises, and related relief. This Notice of Application would later be amended on November 21, 2019 to plead broader relief, including punitive, exemplary and aggravated damages.
[6] At Civil Practice Court on August 9, 2019, Firestone J. granted the Applicant’s request to schedule a motion for urgent interim relief and, in the meantime, ordered that the Respondent not remove or destroy any of the Applicant’s property until the hearing of this motion.
[7] On August 14, 2019, the parties attended before Pollak J., who adjourned the Applicant’s motion to August 29, 2019 to allow for the filing of further materials. The Respondent permitted the Applicant to re-enter the Premises, pending the hearing of the motion for interim relief.
[8] The Applicant deposed that on August 22, 2019, at the request of the Respondent, the motion for interim relief was adjourned to December 2, 2019. She swore, further, that on November 27, 2019, the parties agreed to a hearing of the Application in March 2020. The Respondent retained new counsel on or about November 29, 2019 and, according to the Applicant’s sworn testimony, the parties agreed on a hearing date for the Application of May 11, 2020.
[9] At Civil Practice Court on February 25, 2020, Myers J. scheduled, on the consent of the parties, the return of the Application for hearing on May 20, 2020 and a Chambers Appointment on March 18, 2020.
[10] On March 15, 2020, this Court issued a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings suspending regular operations, effective March 17, 2020, by reason of the COVID-19 pandemic. The Notice to the Profession caused this Application to be adjourned, including both the Chambers Appointment of March 18, 2020 and the hearing of this Application on May 20, 2020. On March 16, 2020, the parties were notified by the trial co-ordinator that each of these dates were cancelled and would be rescheduled after June 1, 2020, due to the COVID-19 pandemic.
[11] On March 30, 2020, the Respondent notified the Applicant that in light of the adjournment of the Chambers Appointment and the hearing of the Application, and on the basis of his interpretation that the endorsements of Firestone J. and Pollak J., he was not required to stay eviction and was considering steps to do so without awaiting determination of the issues raised by this Application.
[12] The Applicant requested the immediate scheduling of a case conference, in accordance with section A.3.a of the Notice to Profession, which provides as follows:
A. MATTERS TO BE HEARD DURING THE SUSPENSION
- The following CIVIL and COMMERCIAL LIST (Toronto) matters:
a. urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.
[13] On April 3, 2020, Myers J. granted the Applicant’s request to seek, through a case conference, the urgent scheduling of a motion for interim injunctive relief restraining her eviction from the Premises.
B. Matters Addressed at the Case Conference
[14] The Applicant contended that she urgently required a motion to seek an interim injunction because she would be subject to significant financial harm if the Respondent were to evict her from the Premises. The Respondent submitted that once the date for adjudication of this dispute was rendered uncertain by the COVID 19 pandemic, he gave notice of his intention to act on the rights that he alleged to have under the Lease. The Respondent maintained that his requirement to defer any such steps until adjudication was rendered inoperative when the return date of the Application was adjourned.
[15] The discussions at the case conference showed that this Application is not ready for adjudication, regardless of the adjournment that occurred through the Notice to Profession on March 15, 2020. The parties have not completed the exchange of application materials and cross-examinations have not taken place.
[16] The Respondent offered that he would not take any steps to evict the Applicant so long as the Applicant was taking steps, without delay, to prepare the Application for determination. The Applicant commitment to doing so. The parties then engaged in efficient discussion on a timetable for the adjudication of this Application. The timing required by the parties for the construction of that timetable produced a hearing date that would be after July 31, 2020.
[17] In light of the agreement of the Respondent not to take any steps to evict the Applicant while the Applicant is preparing this Application for adjudication through a timetable, the Applicant’s request for the scheduling of a motion for this interim relief was rendered unnecessary.
C. Disposition
[18] I order as follows:
- On the consent of the parties as to scheduling, the parties shall prepare this Application for adjudication using the following timetable:
a. The Applicant shall deliver any further Supplementary Application Record by April 14, 2020;
b. The Respondent shall deliver his Respondent Application Record by May 5, 2020;
c. The Applicant shall deliver any Reply record, as she is advised, by May 15, 2020;
d. The parties shall, by June 5, 2020, conduct any cross-examinations that they are advised to conduct;
e. The Applicant shall deliver her factum by June 26, 2020;
f. The Respondent shall deliver his factum by July 17, 2020;
g. The Applicant may deliver any Reply factum by July 31, 2020;
h. The hearing of this Application will be scheduled after June 1, 2020, noting that this Application will be ready for hearing after July 31, 2020.
The parties shall comply with the terms of this timetable subject only to their written agreement to modify the timetable for reasonable accommodation and subject to further Order of this Court.
On the consent of the parties, the Respondent shall not take any step to evict the Applicant from the Premises during the time that the Applicant is complying with this timetable in preparation of this Application for adjudication.
The parties may seek a further case conference, in accordance with section A.3.a of the Notice to Profession, should they consider that they have grounds to do so. The parties are notified, in accordance with Rule 50.13(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that at any such further case conference the case conference judge may make a procedural order, give directions or make an order for interlocutory relief.
Notwithstanding Rule 59.05, this order is effective from the date that it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.
[19] I encouraged the parties to focus their Application records on the threshold issue raised by the Notice of Application, the Respondent’s contention that the Applicant has breached the Lease and is thereby susceptible to eviction. The parties will give further consideration to the need to file voluminous materials (said to exceed 1,000 pages) on damage issues that may depend on the determination of the threshold issue and, even then, may be of a monetary value more suitable for determination in the Small Claims Court.
[20] Also, the Notice to Profession calls upon the parties to make every effort to do their part in collaborative discussion on matters in issue, as follows: “During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.”
SANFILIPPO J.
Date of Release: April 8, 2020