Court File and Parties
COURT FILE NO.: CV-20-641824 DATE: 2020-06-12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOSEPHINE DIAZ, Applicant AND: CASSIDY KUBINEC, Respondent
BEFORE: Schabas J.
COUNSEL: I. Awgu, counsel, for the Applicant No one appearing for the Respondent
HEARD: June 12, 2020
Reasons on Application
[1] On March 20, 2020, as part of the response to the COVID-19 pandemic, Chief Justice Morawetz made an order suspending the enforcement of eviction orders for all residential tenants from their homes unless the Court orders otherwise. The terms of the Order are as follows:
THIS COURT ORDERS that during the suspension of regular court operations by the Chief Justice, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended unless the court orders otherwise upon leave being granted to a party by the court pursuant to the court’s procedures for urgent motions.
[2] The Landlord and Tenant Board took a similar step, and has suspended eviction hearings, except where it is satisfied that the case raises urgent issues such as illegal acts or a serious impairment of health and safety.
[3] The order and steps taken by the Board were consistent with government and public health directives that urged everyone to stay at home in order to prevent the spreading of the COVID-19 virus. The general moratorium on eviction orders places public health and safety ahead of economic interests of landlords, who may not be paid rent due the economic hardship faced by their tenants. However, the Chief Justice’s order, like the practice of the Landlord and Tenant Board, contemplates that there may be circumstances in which an eviction order is appropriate, due to other health and safety concerns.
[4] This is such a case. On April 30, 2020, the Landlord and Tenant Board agreed to convene an urgent hearing to determine “whether there is a serious health and safety issue and/or serious illegal act at the residential unit …requiring an eviction.”
[5] A timeline was set for the exchange of materials and a telephone conference hearing was held by the Board on May 11, 2020 at which both the landlord and tenant were present. After considering the evidence, including that of another tenant in the house, the Board rendered a decision on May 25, 2020, concluding that an eviction order should be made despite the COVID-19 pandemic.
[6] As the Board’s decision outlines, the tenant has smoked marijuana repeatedly in his room in the basement of the house, in which the applicant lives upstairs. The landlord has a strict prohibition on any smoking due, in part, to the existence of oxygen tanks in the house. The landlord’s late husband, who suffered form chronic obstructive pulmonary disease and was prone to asthma attacks, was taken to hospital on April 4, 2020, after suffering a severe attack of asthma when the smoke was prevalent in the house. He was taken to hospital where he later died, on April 25, 2020, due to COVID-19. There was also evidence before the Board that the smoke poses a health risk to the applicant who has a compromised immune system. As the Board stated:
I find that the Tenant has seriously impaired the safety of others by smoking marijuana in a house with oxygen tanks. There is a risk of a fire or explosion. The Tenant further impaired the safety of the Landlord and her husband, as they were at risk of asthma attacks and allergic reactions. Whether the marijuana smoke caused the Landlord’s husband to be rushed to hospital is not the crux of the issue. The issue is putting others at risk.
[7] The Board also specifically considered the urgency of the matter and whether the eviction is required in the middle of the pandemic, having regard to the suspension of eviction hearings and the order of the Chief Justice. It concluded:
Thus, I must be satisfied that there are urgent circumstances which require the eviction of the Tenant in the middle of the COVID-19 pandemic. The Landlord has satisfied the higher test for eviction presently being applied due the Covid-19 pandemic. In this case, the Tenant has shown reckless disregard for the smoking prohibition in the tenancy agreement and the welfare of others. The tenancy is untenable. The fears of the Landlord with respect to the likely impact of the Tenant’s smoking on her husband have come to pass even though there is no medical report shedding light on whether her husband indeed had asthma and or symptoms of COVID-19. Regardless, the Landlord’s immense grief is understandable. Moreover, the Landlord herself has a compromised immune system and as a cancer survivor should not be subject to second hand smoke. The atmosphere in the house has been further poisoned by the Tenant’s threat to “bone” the other tenant with an axe. The other residents of the house fear for their safety. Therefore, I find that the tenancy should be terminated despite the current COVID-19 pandemic.
[8] The applicant now seeks to have the order of the Board enforced. On May 27, 2020, Myers J. agreed that an urgent hearing of this matter was warranted and noted that an expeditious timeline would be followed once a notice of application was filed, and that all evidence would need to be submitted in writing. A notice of application was issued on June 1, 2020, and the landlord/applicant filed supporting affidavits from the herself, her daughter, and another tenant who shares the basement with the respondent who also gave evidence before the Board. The evidence is consistent with the facts summarized by the Board. Indeed, there is additional evidence that the tenant is now deliberately leaving the house unlocked when he goes out, creating additional concerns.
[9] On June 3, a hearing date was set for June 12, 2020 at 10:15AM, and the tenant, Mr. Kubinec, was told to file any responding evidence by June 10, 2020. Of note, Myers J. stated in his Direction on June 3 that:”[t]he Court is not re-considering the eviction order. Rather, the Court must decide if this is a proper case to grant an order under paragraph 2 of the Order of the Chief Justice dated March 19, 2020…to allow the eviction to be enforced despite the COVID-a9 pandemic currently facing all residents of Ontario and elsewhere.”
[10] Although Myers J. recorded in his June 3 Direction that Mr. Kubinec had sent an email advising that he intended to participate in this proceeding, including giving evidence, no evidence was received from him by 4 PM on June 10, 2020, the deadline set by Justice Myers.
[11] I convened the hearing of this matter today, June 12, 2020, using Zoom technology. However, there were some technical difficulties and the court office sent around new Zoom coordinates by email at 10:43 AM. After that still did not work, a telephone conference line was sent out by the court, again by email, to the parties at 10:53 AM. Shortly after, the applicant, her daughter Sherrie Diaz, Mr. Bashir, and the applicant’s counsel, Mr. Awgu, all joined the call. In addition, a member of the public who was interested in the matter called in.
[12] The tenant did not call in. The Court confirmed that he had been emailed the telephone coordinates, and that his email was the only contact information the Court had for him. The applicant and her daughter advised that they had a phone number for him and at my request sent the tenant a text at approximately 11:05 AM with the telephone conference details. They also advised that they had not seen Mr. Kubinec for at least two days, although they said that they did not think he had moved out.
[13] At approximately 11:10 AM I asked for submissions from Mr. Awgu. It was his position that Mr. Kubinec has had notice of this matter and that as he did not file any evidence and that the last word from him was in his email to the Court on June 3 as referred to in Justice Myers’ Direction of that date, that Mr. Kubinec did not and does not intend to participate in the application.
[14] As for the merits of the application, Mr. Awgu simply said that the materials speak for themselves, and demonstrate that there is an urgent risk to the health and safety of his client and others in the house requiring immediate enforcement of the eviction order.
[15] Balancing the risk to the public of evicting tenants in this state of emergency against the risk to the applicant and others in the house, I conclude, like the Landlord and Tenant Board, that this is a case where the eviction order should be enforced. The uncontradicted written evidence before me is consistent with the evidence summarized by the Landlord and Tenant Board in its decision, which it reached following a hearing at which the tenant participated. Although this is not a review of the Board’s decision, the reasons given by the Board are, on their face, reasonable, and support my conclusion. The tenant continues to violate the strict prohibition on smoking in the house which creates safety concerns given the presence of oxygen tanks and the vulnerable state of the applicant’s health. The immediate risk to the applicant and others outweighs the risk to the public if the tenant must find other accommodation at this time. And while I accept that the burden is on the applicant to satisfy me that an exception to the Chief Justice’s order should be made, the respondent has not filed any evidence that the eviction will put him in an untenable situation in which he will pose a particular risk to the public beyond that of anyone else required to move residences.
[16] However, due to my concern regarding notice arising from this morning’s difficulties in convening the hearing, the eviction order shall not be effective until Wednesday, June 17, 2020 at 2 PM. The tenant, Mr. Kubinec shall be emailed a copy of this decision today and, if he wishes, shall advise the Court through the CivilUrgentMatters-SCJ-Toronto@ontario.ca email address if he wishes to make any further submissions. If so, I will convene a further telephone conference call on Wednesday, June 17 at 9AM for that purpose.
[17] If the Court does not hear from the tenant as set out above, the application shall be granted, with costs, and the Order of the Landlord and Tenant Board of May 25, 2020 may be enforced as of 2 PM on Wednesday June 17, 2020. Further, notwithstanding rule 59.05, my order is enforceable without any need for entry and filing.