Court File and Parties
COURT FILE NO.: CV-20-00002352 DATE: 2020-09-23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
John E. Davies, Li Guo, Yip Yuk Chun, Baili Zhang, Ho Tran, Marilyne Dagher, Xuedong Lu, Ziyuan Zhou, Xiaoming Xu, Rong Wen, Kirupakaran Ehamparam, Tony Kin-Chung Lo, Zhi Cong Lin and Tingjie Liang
Plaintiffs
– and –
Adnan Arif Syed A.K.A. Arif Adnan Syed A.K.A. Arif Saied, John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, John Doe 7, John Doe 8, John Doe 9, John Doe 10, John Doe 11, John Doe 12
Defendants
Counsel: Jeffrey A.L. Kriwetz and Alexander Hora, for the Plaintiffs Ex parte/Without Notice to the Defendants
HEARD: In Writing
REASONS FOR DECISION
EDWARDS J.:
Overview
[1] The plaintiffs are collectively owners of twelve family residential homes located in Richmond Hill, Markham and Thornhill, Ontario. I will refer to these residences collectively as “The Residences”. All of the plaintiffs have entered into lease agreements of their homes with the defendant Arif Adnan Syed a.k.a. Arif Syed (Syed).
[2] It is alleged that Syed induced the plaintiffs to enter into the various lease agreements based upon a fraudulent representation that he intended to reside in the residence with his spouse and family.
[3] It is alleged that subsequent to the execution of the lease agreement, Syed converted the residences into individual units that he has then rented to numerous individuals who are referred to in the style of cause as John Doe 1 through John Doe 12. In essence, Syed converted the residences into rooming houses.
[4] The plaintiffs seek an injunction that would require John Doe 1 through John Doe 12 and any occupants of the various residences to vacate the residences within a period of five days. This motion was heard ex parte.
Procedural Issues
[5] Because of the COVID-19 pandemic, the plaintiffs’ motion material was sent to me electronically. The initial Motion Record is dated September 3, 2020, and was received by me shortly thereafter. Upon receipt of the Motion Record, I directed the Trial Coordinator to inquire of counsel for the plaintiffs as to whether he was aware if any of the defendants had a lawyer and if they did, to indicate the name of such lawyer and why notice to such lawyer could not be provided.
[6] I also directed the Trial Coordinator to require that the plaintiffs provide an undertaking in damages as required by Rule 40.03 of the Rules of Civil Procedure (the Rules).
[7] As a result of my requests to the Trial Coordinator, the court received correspondence from plaintiffs’ counsel dated September 3, 2020, indicating that counsel did not know the name of any counsel representing any of the defendants. As for the undertaking in damages, counsel proposed providing an affidavit from the plaintiff, John Davies, on behalf of all twelve plaintiffs. Finally, plaintiffs’ counsel indicated that he would provide brief argument with respect to the necessity to provide notice to John Doe 1 through John Doe 12.
[8] The court then received correspondence from plaintiffs’ counsel dated September 4, 2020, in which correspondence counsel directed the court to certain jurisprudence and further provided a draft undertaking for the court’s review. Finally, as it related to the issue of notice to the occupants, it was proposed that notices be posted at the front and rear entrance of each property providing five days to vacate.
[9] On September 8, 2020, the court received the signed undertaking of the plaintiff John Davies, undertaking on behalf of himself and all of the plaintiffs to be responsible for any damages incurred as a result of any injunction that might be issued by the court.
[10] On September 9, 2020, I asked the Trial Coordinator to inquire of plaintiffs’ counsel as to where this court had jurisdiction to grant an injunction given the application of s. 168(2) of the Residential Tenancies Act (the Act), and directed counsel to a decision of the Court of Appeal in Fraser v. Beach, 2005 14309 (ON CA), 2005 75 O.R. (3d) 383.
[11] As a result of my inquiries concerning the jurisdiction of this court, plaintiffs’ counsel provided me with a Factum as well as a Supplementary Motion Record.
The Facts
[12] As this is an ex parte motion seeking injunctive relief, the facts as detailed below come solely from the plaintiffs and, specifically, the affidavit evidence of the plaintiff John Davies.
[13] Mr. Davies is a full Professor at the University of Toronto. Mr. Davies, together with his spouse, Li Guo, are the owners of 18 Brookshire Circle in the Town of Markham (the Davies property).
[14] On June 13, 2019, Li Guo entered into a standard form of agreement to lease with Adnan Arif Syed for the Davies property. The term of the lease was one year commencing July 1, 2019, with monthly rental payments due of $3,300. The lease agreement provides that it was to be only used as a single-family residence.
[15] Schedule A to the lease agreement provides that the tenant agrees “not to alter or decorate the premises without the landlord’s written consent”. Schedule A further provides:
That the premises shall be occupied by the tenant and his immediate family only and that he will not permit any other party to occupy all or part of the lease premises through an assignment of the lease or by subletting said premises without the written consent of the landlord, who shall have the right to request a credit check of the proposed sub-lessee, but shall otherwise not arbitrarily withhold consent.
[16] Also attached to the affidavit of Mr. Davies is a similar agreement to lease between the plaintiffs Xuedong Lu and Syed Arif and Hafsa Arif. This lease agreement was entered on October 17, 2019 for the residential premises located at 34 Penny Crescent Markham, Ontario.
[17] Fundamental to the allegations which are before this court is the evidence of Mr. Davies, that he along with all the other plaintiffs were induced to enter into the lease agreement with Syed based on Syed’s fraudulent representation that he intended to use the leased premises solely for his occupancy and that of his immediate family.
[18] As it has now turned out, Syed never occupied the premises with his family. Instead, he has altered all of the residential homes owned by the various plaintiffs by turning them into rooming houses.
[19] Mr. Davies alleges in his affidavit that initially after the signing of the lease agreement, Syed provided monthly payments but that those payments have subsequently terminated. Mr. Davies deposes in his affidavit that the other plaintiffs named in this action have also confirmed to him similar experiences.
[20] In support of Mr. Davies’ assertions, he deposes in his affidavit that he personally inspected his property at 18 Brookshire Circle in mid-November 2019 expecting that he would find Syed and his family residing in the residence. In fact, Mr. Davies deposes in his affidavit that what he discovered was a “shocking disaster”. He determined that Syed was clearly not living in the premises and that there were various other persons residing in his home, and that many rooms and spaces had been converted into single living units “with families (some with young children) occupying individual single rooms each of which had been furnished with door locks”.
[21] Mr. Davies further deposes in his affidavit that further inspection of his property determined that his living room had been converted into a hair dressing salon. Mr. Davies deposes in his affidavit that he spoke to the hairdresser and witnessed a customer in the process of having a haircut. In addition to these discoveries, Mr. Davies deposes that he inspected the furnace room and cold room in the basement and noted that they had been used as “sleeping quarters”.
[22] Mr. Davies deposes in his affidavit that he spoke to various of the individuals located in his home, who confirmed “that they were paying rent to Syed” who they believed was the owner of the property. As a result of Mr. Davies’ discovery, he demanded that Syed provide vacant possession of the property but Syed has refused to do so. Mr. Davies has discovered that Syed continues to advertise his property on Kijiji. Syed also advertises the various other properties described in the Statement of Claim.
[23] Mr. Davies, for understandable reasons, is concerned that the continued occupancy of his residence as well as the residences of the other plaintiffs has placed them in violation of “all building and related Code requirements”, and that he will not be able to comply with such regulations until he has vacant possession of his property.
[24] Mr. Davies references in his supplemental affidavit that additional damage has been done to his property. The owner of 10 Castleridge has advised Mr. Davies that Syed showed up at that property accompanied by two other men demanding rent from the John Doe occupants. Mr. Davies deposes thereafter as follows:
When one of the John Doe’s was unable to pay, they beat him up and threw his possessions into the street. Similar awful events are also occurring at my home property.
[25] In Mr. Davies’ initial affidavit, he references the fact that notices have been delivered by the Town of Markham and/or Richmond Hill confirming that the use of the properties as a rooming house is unlawful or otherwise in breach of existing Codes. It is also apparent from the information supplied by Mr. Davies as part of his sworn evidence, that the York Regional Police have charged Syed with various counts of fraud arising out of his leasing of the various residences at issue in this action.
[26] Amongst the evidence contained in the Motion Record are various notices addressed to some but not all the plaintiffs from the local fire authorities, requiring compliance with the Fire Protection and Prevention Act, 1997. Some, but not all of those notices are also directed to Syed. By way of an example, the Markham Fire and Emergency Services directed an Inspection Order to Syed on February 24, 2020 for 18 Brookshire Circle, Thornhill, Ontario. In the Inspection Order it is noted:
House was designed and is constructed for single family use. At this time there are a total of 12 persons living in this house which has been transformed into a rooming house use (4 rooms on 2/F, 3 rooms and 1 hair salon on G/F and 3 rooms in basement). All the individuals are unrelated, and each has their own private use of a sleeping room with shared washroom and shared kitchen and each pays the leaseholder a monthly rental fee.
Action required:
Discontinue boarding, lodging and rooming house use and return the building to a single-family residential house in accordance with its approved original design and use, as per O.Reg. 213/07.
[27] In addition, the Motion Record contains a Zoning Notice from the City of Markham dated August 11, 2020, addressed to Davies and his wife Guo with the following subheading:
REGARDING: LODGING ROOM/ROOMING HOUSE
LOCATION: 18 BROOKSHIRE CIRCLE, THORNHILL, ONTARIO
[28] The Zoning Notice provides, amongst other things,
Please be advised that lodging room/rooming house is not permitted at the above mentioned property unless, the use is in compliance with above quoted definitions (*) from By-law #2018-53. [Bolding and underlining is as per Zoning Notice.]
[29] The Zoning Notice then goes on to order as follows:
Therefore, you are hereby ordered to:
Cease and desist operating your property as a lodging room/rooming house and refrain from or permit anyone from such use in the future.
Ensure no more than two rooms are rented to individuals within the entire dwelling.
Provide the City of Markham with copies of the Notice to End Tenancy of the remaining tenants.
[30] Mr. Davies has provided a Supplemental Motion Record to which is attached his affidavit of September 12, 2020, which incorporates his undertaking in damages which the court had previously requested.
The Issue
[31] The test that this court should apply in determining whether an interlocutory injunction should be granted is well known and well settled. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117, the Supreme Court of Canada set out the principles which must be applied in every case:
i. There must be a serious issue to be tried;
ii. The applicant must establish that he will suffer irreparable hardship if the injunction is not granted;
iii. The balance of convenience must favour the applicant.
[32] The evidence at this ex parte stage of this action more than meets the test set forth in RJR-MacDonald. The real issue, as I see it, is whether this court has jurisdiction to grant injunctive relief given the application of s. 168(2) of the Act as interpreted by the Court of Appeal in Fraser v. Beach, 2005 14309 (ON CA), 2005 75 O.R. (3d) 383, [2005] O.J. No. 1722.
[33] Section 168(2) of the Act provides exclusive jurisdiction to the Landlord and Tenant Board (the LTB) in matters that are within its jurisdiction. On its face, this action could be viewed as involving claims between a landlord and tenant.
Analysis
[34] The Court of Appeal in Fraser dealt with a motion where the plaintiffs were a group of neighbours who lived near an illegal rooming house in Ottawa. The plaintiffs sought injunctive relief against the landlords restraining them from operating the rooming house. The landlords had been convicted of operating a rooming house without a license and in fact, consented to an order granting the injunction. The injunction order provided that no steps would be taken to enforce the order until notice had been given to the tenants or for the orderly sale of the property. An application was brought by the landlords to the Ontario Rental Housing Tribunal for an order terminating the tenancies. The tribunal refused the landlords’ application, and when faced with the continued operation of the rooming house the plaintiffs sought an order of the Superior Court on notice to the tenants requiring that the tenants vacate the rooming house. An appeal was brought to the Court of Appeal on the basis that the Superior Court lacked jurisdiction to make the order. The appeal was allowed.
[35] In granting the appeal, Juriansz J.A. noted at paras. 7 and 8 as follows:
The Superior Court of Justice has broad jurisdiction to grant an injunction. Section 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that the Superior Court of Justice is a superior court of record that “has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario”.
The court's jurisdiction, however, is not fixed. It has long been settled that the jurisdiction of a superior court may be limited by statute…
[36] The issue as framed by Juriansz J.A. in Fraser, was whether the Tenant Protection Act “unequivocally indicates the legislature’s intent to limit the court’s jurisdiction to make an order evicting a residential tenant”. At para. 10 of the court’s decision, Juriansz J.A. held as follows:
There is no doubt that the Tenant Protection Act applies to the rooming house and the relationship between its inhabitants and the landlords, even though it is operated contrary to the city’s by-law.
[37] Ultimately, the decision of the Court of Appeal in Fraser was to the effect that the Superior Court did not have jurisdiction to make an order requiring the tenants to vacate the premises. Only the tribunal had the jurisdiction to make an order terminating a tenancy and evicting a tenant. It is noteworthy, however, that the Court of Appeal did not conclude that the plaintiffs (the neighbours to the rooming house) were left without a remedy. At para. 17 of the Court’s decision, Juriansz J.A. states:
First, it clearly remains within the Superior Court’s jurisdiction to restrain behavior that constitutes a nuisance. In my view, a just and convenient remedy for behavior that creates a nuisance would be one that was directed to the behavior of the perpetrators rather than their place of abode.
[38] The jurisprudence of this court makes clear that this court may enforce an eviction order made by the Landlord and Tenant Board (the LTB), but there must first be an eviction order in place: Rabczak v. Dunford, 2020 ONSC 3031, 2020 CarswellOnt 6769. As long as the substance of the matter is a claim between a landlord and a tenant, the LTB has exclusive jurisdiction, see Mackie v. Toronto (City), 2010 ONSC 3801, [2010] O.J. No. 2852 (Mackie). This remains the case despite COVID-19, as the LTB is available to hear emergency motions. In Rabczak, the landlords sought to bring an urgent motion in the Superior Court to have the tenants evicted despite the COVID-19 emergency moratorium on evictions. Myers J. found that the question of whether the landlord may evict a tenant was solely within the jurisdiction of the LTB.
[39] The facts of this case are somewhat unique. This matter came before me during the COVID-19 pandemic. On March 19, 2020, Chief Justice Morawetz in Attorney General of Ontario v. Persons Unknown (unreported Ont. SC March 19, 2020) granted an order (amended July 6, 2020), the essence of which was to declare a moratorium on residential evictions. Specifically, the Order of Chief Justice Morawetz provided,
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.
[40] On the facts of this case, there is no order of the LTB evicting any of the occupants of the various residences that are described in the Statement of Claim. I am satisfied that s. 168(2) of the Act provides exclusive jurisdiction for the granting of an eviction order to the LTB. This has been made clear by the Court of Appeal in Fraser.
[41] What distinguishes this case, however, in my view, is the fact that there are numerous orders made by the various fire protection services as well as zoning notices that, in essence, declare that at least some if not all of the residences are residential dwelling homes that have been converted into rooming houses. The unsuspecting occupants of the residences believe that they are renting rooms from Syed. Syed obtained lease agreements from the various plaintiffs as a result of a fraudulent misrepresentation that he would be occupying the residences as a single-family residential home occupied only by himself and his family. The evidence in my view is overwhelming, that Syed obtained the right to lease the various residences at issue in this lawsuit as a result of a fraudulent misrepresentation that renders such lease agreements void ab initio.
[42] Given the various notices referenced in paras. 26-29 above, s. 440 of the Municipal Act, S.O. 2001, c. 25, becomes relevant to the jurisdiction of this Court. Section 440 provides as follows:
If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board. (Emphasis added.)
[43] While undoubtedly the intent of s. 440 is to provide a municipality with the ability to obtain an order enforcing a zoning by-law, it is - in my view, significant that the Legislature in its wisdom did not limit the right to seek injunctive relief to a municipality. Rather, s. 440 provides that injunctive relief can be sought by either a municipality or a taxpayer. I am satisfied that a taxpayer (such as any one of the plaintiffs) has standing to obtain relief requiring the defendants to comply with the various notices referenced in paras. 26-29 above (the Notices).
[44] My conclusion that the plaintiffs have standing to seek injunctive relief does not ignore the exclusive jurisdiction of the LTD. Rather, the Legislature chose not to limit the jurisdiction of this court by providing that s. 440 was superseded by the exclusive jurisdiction of the LTB. This issue was, in part, dealt with by Howden J in Neighbourhoods of Winfield Limited Partnership v. Death, 2008 42428, where Howden J. granted an order under s. 440 of the Municipal Act restraining the respondent landlords from using their houses as multi-unit rentals, contrary to the municipal by-law which did not allow lodging houses containing more than two bedrooms for rent. The multi-unit rentals were occupied by groups of students as tenants.
[45] It is noteworthy that the decision of Howden J. in Winfield was upheld by the Court of Appeal (leave to appeal to the Supreme Court of Canada refused). The decision of the Court of Appeal was released within four years of its decision in Fraser. As noted by D.C. Shaw J. in Kenora (City) v. Eikre Holdings Ltd., 2018 ONSC 7635 at para. 66, “There was no suggestion in Neighbourhood of Winfields that the Residential Tenancies Act defeated the statutory jurisdiction of the Superior Court to make a restraining order under s. 440”.
[46] The Court of Appeal in Fraser makes clear that the Superior Court has broad jurisdiction to grant an injunction. In my view, such broad power coupled with the enforcement powers of s. 440 of the Municipal Act are such that this court should grant the plaintiffs who are “taxpayers” an injunctive remedy that is in no way inconsistent with the exclusive jurisdiction of the LTB.
[47] The occupants of the various residences described as the defendants John Doe 1 to John Doe 12 as well the defendants Syed, are ordered to comply with all outstanding orders from any fire protection service that are directed at the residences.
[48] The occupants of the various residences described as John Doe 1 to John Doe 12 as well as the defendant Syed, are further ordered to comply with all outstanding Municipal Notices requiring that the defendants conform with all zoning by-laws, including any by-law that requires the residences to be returned to the status of a single-family residence.
[49] The occupants of the various residences described as John Doe 1 to John Doe 12 and the defendant Syed, are further ordered in the absence of any Municipal Notice to comply with all municipal zoning by-laws that may govern the residences. Where such zoning by-law allows for a single-family residence, the defendants are ordered to cease and desist using any of the residences as a rooming house.
[50] The occupants of the residences described as John Doe 1 to John Doe 12 and the defendant Syed are to comply with the orders of this court within 7 days, failing which the plaintiffs may seek further relief from this court to enforce these orders.
[51] As this motion was heard without notice to the defendants, any of the defendants may move on 48 hours notice to the plaintiffs to set aside the orders of this court.
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
John E. Davies, Li Guo, Yip Yuk Chun, Baili Zhang, Ho Tran, Marilyne Dagher, Xuedong Lu, Ziyuan Zhou, Xiaoming Xu, Rong Wen, Kirupakaran Ehamparam, Tony Kin-Chung Lo, Zhi Cong Lin and Tingjie Liang
Plaintiffs
– and –
Adnan Arif Syed A.K.A. Arif Adnan Syed A.K.A. Arif Saied, John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, John Doe 7, John Doe 8, John Doe 9, John Doe 10, John Doe 11, John Doe 12
Defendants
REASONS FOR DECISION
Justice M.L. Edwards
Released: September 23, 2020